Legal experts: Unnecessary language required deletion

Repealing Missouri's unenforceable misdemeanor law banning homosexual acts between consenting adults was the right thing to do, Cape Girardeau County Prosecuting Attorney Morley Swingle said Monday.

In an interview, Swingle said lawmakers have a duty to erase unnecessary language from the statutes when it is declared unenforceable by a settled court decision. Swingle's view was echoed by Peter Joy, a law professor at Washington University in St. Louis who specializes in criminal law.

The repeal of the gay sex ban last year has spawned a political fight between Missouri House Speaker Rod Jetton and Rep. Scott Lipke, R-Jackson, the lawmaker who sponsored the bill that included the repeal. Jetton took away Lipke's seat as chairman of the Crime Prevention and Public Safety Committee as punishment for the bill. In his first public statements on the move Monday, Jetton attacked Lipke's character and accused him of deception in passing the repeal.

The U.S. Supreme Court in a 2003 case from Texas ruled on a 6-3 vote that laws banning sexual acts between consenting adults in their homes violates constitutional guarantees of privacy. Of the justices who sided with the ruling, five remain on the court.

"When the U.S. Supreme Court said that it is unconstitutional for the state to ban homosexual activity they struck down a Texas law that was word-for-word like Missouri's," Swingle said. "That law has to be removed or some prosecutor who has not kept up to speed or a police agency that has not read the latest rulings might charge someone."

Joy expressed the same fears, calling the prompt removal of unenforceable laws "responsible government."

When the high court rules, Joy said, personal beliefs in what is right and wrong should remain just that -- personal. "A person should respect the rule of law no matter what their orientation," Joy said. "We need legislators who are going to follow the law and not try to assert a position that is not constitutional."

When the repeal became law with Gov. Matt Blunt's signature, Attorney General Jay Nixon dropped an appeal at the Missouri Supreme Court that sought to reverse a Jackson County court decision on the rights of a lesbian to be a foster mother. In the Jackson County ruling, Circuit Judge Sandra Midkiff said the state could not conclude that applicant Lisa Johnston lacked a "reputable character" merely because she was a lesbian and that the state had an unenforceable law against homosexual acts.

By dropping the appeal, Nixon let stand the court order directing the state to issue Johnston a license. Since then, the state has made homosexual orientation one factor in its decision-making on both foster homes and adoption, but it is no longer a controlling factor, said Ana Compain-Romero, spokeswoman for the Department of Social Services.

In his attack on Lipke during a news conference Monday, Jetton said the repeal made it easier for gays to adopt. Both Swingle and Joy said the state's case, relying on an unenforceable statute, was weak to begin with and that there were more fruitful legal avenues for making homosexuality an issue in such cases.

Swingle, who was Lipke's boss in the prosecuting attorney's office in the 1990s, defended his former employee."Scott worked for me for six years, and I don't know of a more honest and honorable person," Swingle said.

rkeller@semissourian.com

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