Analysis: Unenforceable Laws Stay on the Books in Louisiana

The East Baton Rouge Parish sheriff's use of an unconstitutional law to arrest men who weren't doing anything illegal might not have happened if Louisiana lawmakers had stripped the statute from the state's law books once it was thrown out.

Instead, lawmakers have been reluctant to remove several laws deemed unenforceable - on areas like sodomy, creationism and abortion.

Some lawmakers simply disagree with the court rulings and stubbornly don't want to rewrite the law.

But other legislators are worried about seeming supportive of gay rights, evolution, abortion or any other area that can be politically tricky in a conservative state, and they decide there's no harm in keeping unconstitutional and unenforceable laws in statute.

In the most recent legislative session, Sen. Dan Claitor, R-Baton Rouge, sought to remove a state law that had been declared unconstitutional more than 25 years ago. It required public schools to give balanced treatment in science classes and textbooks to evolution and creationism and barred the teaching of evolution as proven scientific fact.

Senators agreed to the inclusion of that creationism law repeal in an education bill by Sen. Eric LaFleur, D-Ville Platte, that involved foreign language immersion programs in public schools.

When the bill got to the House Education Committee, however, LaFleur quickly agreed to strip that repeal language from his bill, saying to keep it could jeopardize passage of his immersion proposal.

Would a legislator who supports creationism really object to removing a court-rejected law from Louisiana statute - and seek to jettison a colleague's bill because of it? Apparently yes, by LaFleur's assessment.

And so, the creationism teaching mandate stays on the books, unenforceable.

Rarely is the lack of cleanup for the state's statutes that noticeable, however. Perhaps that's because rarely are people caught trying to use laws rejected by the courts.

East Baton Rouge Parish Sheriff Sid Gautreaux's office arrested at least a dozen men in recent years on charges that they had violated an anti-sodomy statute that was thrown out in 2003 by the U.S. Supreme Court.

Men were arrested who had discussed or agreed to meet privately for consensual sex with undercover police officers, which is not a crime in Louisiana.

When the arrests were first reported by The Advocate newspaper, the Sheriff's Office pointed to the anti-sodomy law being still among the state's criminal statutes.

The district attorney in Baton Rouge didn't prosecute any of the cases because it found no criminal violation since the law was invalidated a decade ago. That should have been a sure sign to the sheriff's office that the arrests were improper.

But officers could still point to the criminal code as an attempt to justify their actions.
Gay rights organizations called the arrests discrimination, and Gautreaux quickly apologized.

"Our agency made mistakes; we will learn from them; and we will take measures to ensure it does not happen again," he said in a statement.

Gautreaux pledged not to use "these unconstitutional sections of the law in future cases," and he said he talked with local lawmakers and the Louisiana Sheriffs' Association about working to remove those sections of the law from the state's criminal code.

Equality Louisiana, a statewide coalition of gay and lesbian advocacy groups, said it was seeing "positive steps" with some lawmakers supporting the cleanup of the statute.

That might be difficult to get done in the state Legislature because of fears that lawmakers who vote to remove the unenforceable "crime against nature" law would somehow be supporting gay rights.

Gov. Bobby Jindal's office wouldn't say if the governor would support taking the unconstitutional statute off the books.

When asked, the Republican governor's spokesman Sean Lansing said, "That's an issue for the Legislature to look at."