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35 Harv. C.R.-C.L. L. Rev. 103 (2000)
Creating Criminals: The Injuries Inflicted by "Unenforced" Sodomy Laws

handle is hein.journals/hcrcl35 and id is 109 raw text is: Creating Criminals: The Injuries Inflicted by Unenforced Sodomy Laws Christopher R. Leslie* Millions of laws fill American statute books. Operating without om- niscience and with finite resources, law enforcement officials cannot pos- sibly enforce them all. Occasional calls to purge criminal and civil codes of archaic and unenforced laws are rarely answered.' So it comes as no surprise that many laws are simply not enforced.2 Some are forgotten, but not gone. Some are viewed by observers as historical curiosities or hu- morous trivia rather than legitimate laws. Courts, scholars, and the public tend to view such unenforced laws as inconsequential.3 Unenforced laws need not be repealed, the argument goes, because they are harmless. Un- fortunately, this reasoning can lull legislators and the electorate into un- warranted complacency. A criminal law, though not enforced through prosecutions, may still affect society. This Article presents a case where courts and mainstream scholars incorrectly presume that a lack of crimi- nal enforcement necessarily means an absence of harm: sodomy statutes. The Article demonstrates that the very existence of sodomy laws creates a criminal class of gay men and lesbians, who are consequently targeted for violence, harassment, and discrimination because of their criminal status. Although scholars have written numerous articles about sodomy laws since the Supreme Court's decision in Bowers v. Hardwick,4 one important aspect of sodomy laws has been largely ignored. Despite the * Assistant Professor of Law, Chicago-Kent College of Law. The author wishes to thank Kathy Baker, Mara Goldman, Hal Krent, David McGowan, Miranda McGowan, Sheldon Nahmod, Tony Reese, Laura Seigle, and Jeffrey Sherman for their criticisms of previous drafts. All remaining mistakes and omissions belong to the author alone. I However, sometimes state legislatures do recognize that their criminal codes are filled with outdated laws and correspondingly revise their statute books. See Poe v. Men- ghini, 339 F. Supp. 986, 988 (D. Kan. 1972) (Several years ago, the Kansas Legislature recognized that many Kansas criminal statutes were archaic and obsolete and that a com- plete modernization of the Criminal Code was required?'). 2 Cf Poe v. Ullman, 367 U.S. 497, 512 (1961) (Douglas, J., dissenting) ([It would be absurd to pretend that all criminal statutes are adequately enforced?'). 3 Of course, this broad statement is subject to many important qualifications and ex- ceptions. The prime exception is First Amendment jurisprudence, where courts recognize that unenforced laws can chill protected speech. See, e.g., Dombrowski v. Pfister, 380 U.S. 479 (1965); Texas State Teachers Ass'n v. Garland Indep. Sch. Dist., 777 F.2d 1046, 1055 (5th Cir. 1985); Spartacus v. Board of Trustees of Ill., 502 F. Supp. 789, 796-97 (N.D. Ill. 1980) (Injury to First Amendment rights may result from the threat of enforcement itself, since it may chill ... ardor and eliminate.., desire to engage in protected expression?'). 4 478 U.S. 186 (1986).

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