Blog Post #16: The Lurking Issue of the Phantom Plaintiff: Sodomoy Stings in a Post-Lawrence World

By: Kelly Carlson

            What happens when the Supreme Court issues an opinion of vast applicability that should negate similarly situated state laws? What if those state laws remain on the books and not invalidated by the corresponding state legislatures after the Supreme Court decision has been issued? Who is policing this practice of removing state laws? Anyone – anyone at all? Not necessarily. Is this a problem? Perhaps.

            Laws deemed unconstitutional by the Supreme Court are relegated to an unenforceable status at the state and local levels of government.[1]The Supremacy Clause of the United States Constitution and the rejection of state nullification allow the Supreme Court to hold universal power.[2]It can only be circumvented when the states and local authorities, in asserting their Tenth Amendment powers which allow states the ability to exert state police powers, emphasize how their similarly situated but yet purported distinguishable laws are not invalidated by a corresponding Supreme Court decision because their laws differ in substance or expressed state interests.[3] However, even if state or local laws do not meet the criteria necessary to fly under the Supreme Court invalidation radar, they may very well remain on the state books.[4]Seeing as how no magic wand exists that will instantaneously invalidate all unconstitutional state laws, the only way to remove them is by each respective state legislature.[5] State legislatures can pass bills to get unconstitutional and unfavorable laws removed, but they are not required to.[6]

            How will people know what the law is when unconstitutional laws remain on their state books? This is a valid concern. The general public is charged with having knowledge of the local and state laws that govern their everyday civic and private lives.[7] Ignorance has never been a viable defense.[8] However, this charge only extends to those laws that appear on state books, not to laws that might be invalidated due to recent (or not so recent) Supreme Court decisions.[9] The general public did not attend law school and should not be burdened with tracking and understanding Supreme Court decisions. So, when state government decides to continue propagating an unconstitutional law by keeping the statute on its books, it confuses those who are charged with having knowledge of these “laws.”[10] It appears that the general public has not been the only entity experiencing confusion, as local law enforcement teams are equally unaware in some instances, leading to law enforcement mistakes and public embarrassment.[11]

            The LGBT community is no stranger to this issue. After theLawrence v. Texas decision was handed down from the Supreme Court in 2003, sodomy laws were invalidated in both Texas and every other state using sodomy laws to outlaw sexual conduct between gay couples.[12] The reach of the Lawrence decision remains a largely contested area outside the scope of this post, but on its face, the ruling meant that all states with similar sodomy laws in place would have to invalidate their laws and remove them from state books.[13] Unfortunately, Lawrencedid not effectuate such a response. As of April 2014, twelve states continue to propagate sodomy laws in direct contradiction to theLawrence decision.[14] Most egregiously, the Louisiana state legislature actually voted its sodomy law back into Louisiana’s books.[15] Can’t they be stopped? Only if wronged state citizens were to bring viable and actionable claims to court and only if these state statues really did share the same or substantially similar language and state interests.[16] The problem in these wrongful sodomy arrest cases is finding agreeable plaintiffs.[17] This “phantom plaintiff” problem persists because plaintiffs are too embarrassed about their private lives being thrust into the public eye upon arrest and in any legal proceedings that follow.[18]Many of these plaintiffs want to forget the incident ever happened and are not willing to pursue legal justice at the expense of their dignity, however justified their legal action might be.[19]

            For as long as controversial decisions, incongruent with certain state laws are made the “supreme law of the land,” this problem will persist if a remedy is not identified. LGBT issues remain at the center of the most controversial state laws in many parts of the country.[20] A little over a month ago, the Court announced its decision to grant certiorari to review four of the Sixth Circuit decisions recently upholding gay marriage bans.[21] The Court consolidated the points of disagreement into two legal questions: 1) Does the Fourteenth Amendment require a state to issue marriage licenses to same-sex couples who want to marry?; and 2) Does the Fourteenth Amendment require a state to recognize a same-sex marriage licensed and authorized in another state?[22] Contemplating the outcome of these legal questions to the level of detail that analysis would require is outside the scope of this article. However, note that these specific answers would yield prescriptions for the laws that should and should not continue to be effectuated at the state and local level.[23] Even if these prescriptions are favorable to the LGBT community in all facets, local laws could continue to oppress these couples by keeping unconstitutional same sex marriage bans on the books as state legislatures are within the bounds of their rights to do so.[24] Thirteen states do not, as of this writing, issue marriage licenses to all same sex couples in the state and thirteen states do not recognize same sex marriages from other jurisdictions.[25] LGBT couples could continue to experience problems in these states if they marry in one state sanctioning their marriage and then move to another state that does not.[26] These couples will then have to expend time and financial resources and expose their private lives to force the state into compliance with the Court’s decision. Is this winning in the end? As we keep a watchful eye on the Supreme Court decision that will be made on these consolidated cases in June 2015, we realize that a victory capable of initiating immeasurable positive change could prove bittersweet in the end.[27]


[1] Compare U.S. Const. art. VI § 2 with U.S. Const. amend X (providing the doctrine of Federal preemption when taken together, in which Federal law prevails when conflicts with state law arise).

[2] Compare U.S. Const. art. VI § 2 with U.S. Const. art. III (providing the basis for the Supreme Court’s “supreme law of the land” power).

[3] See U.S. Const. amend X; U.S. Const. art. VI § 2.

[4] See Mark J. Stern, You Can Still Be Arrested for Being Gay in Red-State America, XX Factor, Aug. 5, 2013,; Lauren Langlois, 12 States Have Anti-Sodomy Laws a Decade After They Were Ruled Unconstitutional, The Huffington Post, Apr. 23, 2014, (reporting arrests resulting from sodomy laws still being on the books in certain states); see also Brian Palmer, How a Law Becomes Not a Law, Slate, Apr. 4, 2013, (banning atheists from holding public office which is unconstitutional and illustrating other instances outside of the present context in which unconstitutional statutes are propagated at the state level).

[5] See U.S. Const. art. I § 1; see also The Legislative Process¸ The United States H.R., (last visited Feb. 22, 2015).

[6] See generally The Legislative Process¸ The United States H.R., (last visited Feb. 22, 2015).

[7] The general rule that ignorance of the law or a mistake of law is no defense to criminal prosecution is deeply rooted in the American legal system. See, e.g., Reynolds v. United States, 98 U.S. 145, 167 (1879); Shevlin-Carpenter Co. v. Minnesota, 218 U.S. 57, 68 (1910); Lambert v. California, 355 U.S. 225, 228 (1957); Liparota v. United States, 471 U.S. 419, 441 (1985) (White, J., dissenting); Oliver Holmes, The Common Law 47-48 (1881) (recognizing that this maxim may only apply to criminal statutes such as the sodomy statute Lawrence v. Texas, 539 U.S. 558 (2003)).

[8] See Oliver Holmes, The Common Law 47-48 (1881).

[9] See id.

[10] Stern, Langlois supra note 4 (reporting on victims of unconstitutional state sodomy laws).

[11] See Caitlin Dickson, Twelve Men Silenced by an Unconstitutional Law, The Daily Beast, Aug. 7, 2013,

[12] See Lawrence v. Texas, 539 U.S. 558, 558 (2003).

[13] See id.

[14] See Lauren Langlois, 12 States Have Anti-Sodomy Laws a Decade After They Were Ruled Unconstitutional, The Huffington Post, Apr. 23, 2014,

[15] Id. (some states argue they just haven’t gotten around to it but Louisiana revisited the issue and deliberately decided to keep the law in place).

[16] See U.S. Const. art. III § 2, cl. 2.

[17] See Caitlin Dickson, 12 Men Silenced by an Unconstitutional Law, The Daily Beast, Aug. 8 2013,

[18] Id.

[19] Id.

[20] See Brendan O’Brien, Marquette suspends professor for slamming instructor on gay rights, Reuters, Dec. 17, 2014,

[21]Daniel Taylor, Esq., SCOTUS Grants Cert. to Gay Marriage Cases: 2 Questions Presented, FindLaw, Jan. 16, 2015,

[22] Id.

[23] See U.S. Const. art. VI § 2; U.S. Const. art. III.

[24] See U.S. Const. art. I § 1; U.S. Const. amend. X. See generally The Legislative Process¸ The United States H.R., (last visited Feb. 22, 2015).

[26] See U.S. Const. art. I § 1. See generally The Legislative Process¸ The United States H.R., (last visited Feb. 22, 2015).

[27] Daniel Taylor, Esq., SCOTUS Grants Cert. to Gay Marriage Cases: 2 Questions Presented, FindLaw, Jan. 16, 2015,