Rejecting in part a motion to dismiss by the State of Louisiana, U.S. District Judge Martin L.C. Feldman found that a group of individuals who are required to maintain registration as sex offenders upon their conviction under Louisiana's Crime Against Nature by Solicitation Act can sue for a violation of their rights to Equal Protection of the Laws under the 14th Amendment of the U.S. Constitution. The ruling in Doe v. Jindal, 2011 Westlaw 2935042 (E.D. La., Sept. 7, 2011), granted the State's motion to dismiss substantive due process and 8th Amendmetn cruel and unusual punishment claims, however, as well as dismissing Governor Jindal as a defendant under the sovereign immunity doctrine.
Until August 15, 2011, when the governor signed a reform measure into law, Louisiana statutes provided that those convicted of solicitation for prostitution in general were guilty of a misdemeanor that did not require registration as a sex offender, but a special statute, Crime Against Nature by Solicitation, imposed longer prison sentences, larger fines, and a sex offender registration requirement. The statute was clearly a lingering remnant of the tradition of criminalizing oral and anal sex. After Lawrence v. Texas, such activity may not be penalized when engaged in privately by consenting adults, but the Supreme Court pointed out in that case that it was not ruling on the constitutionality of laws on commercial sex.
At the heart of the argument in this case is the contention that there is no rational basis for imposing a more draconian punishment on solicitation for compensated sex when it involves oral or anal sex than for when it involves vaginal intercourse. Indeed, the misdemeanor law concerning solicitation for prostitution clearly covers the same conduct, but oral or anal sex have been singled out for harsher treatment. The plaintiffs argued that the main purpose for the sex offender registry was to protect children from sexual assaults, but that the crime covered by this solicitation statute bore no rational relationship to that purpose.
The court found persuasive as applied to this case the rationale of Eisenstadt v. Baird, 405 U.S. 438 (1972), which struck down a Massachusetts law that prohibited distribution of contraceptives to single people while allowing it (as required by the Supreme Court's decision in Griswold v. Connecticut) for married persons. The Supreme Court found that there was no rationale to support the challenged law that would not also be advanced by penalizing the distribution to married couples, which is constitutionally foreclosed.
More directly on point, the court noted, was a California Supreme Court decision in People v. Hofsheir, 129 P.3d 29 (Cal. 2006), striking down on Equal Protection grounds a law that imposed higher penalties on those who engaged in oral sex with a teenager than those who engaged in vaginal intercourse with a teenager, requiring only the former to register as sex offenders. The court found both groups of defendants to be "similarly situated in terms of the nature of their misconduct," so imposing a greater penalty on one than the other offended equal protection of the laws.
Judge Feldman pointed out the absurd lengths to which the state's counsel went in trying to justify having essentially the same conduct treated differently. "In fact, when asked during oral argument why the legislature has two statutes on the books if the sex acts of the Prostitution statute consume all of the acts of the Crime Against Nature by Solicitation statute, counsel persisted in advancing the fiction that bestiality was an act not covered by the Prostitution statute but is covered by the Crime Against Nature statute. That comment defies credulity. Its absurdity is betrayed by the statutory text, the Louisiana Supreme Court's pronouncements, and common sense."
Judge Feldman rejected the argument that the distinction could be justified out of public morality and public safety concerns, and said that plaintiffs "have alleged a facially plausible Equal Protection claim that at this stage of the case is sufficient to withstand dismissal for failure to state claim." Whether the state can justify the differential treatment "must await a merits-inquiry."
However, the court did not see a right to privacy claim here under the Due Process Clause, pointing out that every attempt to challenge the constitutionality of sex offender registry laws under the Due Process Clause has been unsuccessful, including in a persuasive 11th Circuit decision cited by the court. Furthermore, it found that the Supreme Court had upheld such laws against procedural due process claims. Rejecting an 8th Amendment claim, the court clung to the absurd contention — which courts have accepted — that requiring somebody to register as a sex offender is not "punishment." Go tell that to the people who find their ability to carry on a normal life severely undermined by being listed in one of those on-line sex offender registries. But the myth of the "non-punitive" registry lives on for now, at least in this case.
Students at Loyola Law School's Clinic in New Orleans are working on this case, as well as pro bono attorneys from Cleary Gottlieb in New York and Brooklyn attorney Andrea J. Ritchie. The plaintiffs are suing as "Doe" to preserve anonymity. The judge decided that the state's demand to know the identity of the plaintiffs need not be decided at this stage of the proceeding.