DENVER — Utah laws prohibiting fornication and sodomy between unmarried, heterosexual adults violate privacy and free-speech rights and should be struck, a civil-rights attorney argued.
Brian Barnard also told a three-judge panel Monday from the 10th U.S. Circuit Court of Appeals that the laws discriminate against unmarried heterosexual couples because they could be prosecuted for actions that would be legal between married couples.
"These statutes make criminal conduct which is private, and impermissibly invade privacy," he said. "In a relationship between an unmarried, heterosexual couple, they should have the right to develop their relationship, including in a sexual manner."
Assistant Utah Attorney General Thom Roberts countered that the plaintiffs did not have a right to sue because they were not threatened with prosecution.
Convictions under the sodomy and fornication laws occur in cases where a victim complained or where a jury included the charges in cases involving more serious crimes such as rape, he said.
"If all we have is simple fornication in private, that is not going to be prosecuted," he said.
The judges took the matter under advisement. It could be weeks before a ruling is handed down.
The 30-minute hearing centered on a 10-year-old lawsuit filed by Barnard seeking to overturn laws that make consensual sex between unmarried, heterosexual adults a misdemeanor punishable by up to six months in jail and a $1,000 fine.
A federal magistrate in late 1999 recommended dismissal of the case, ruling the plaintiffs, unmarried couples who have been identified in public only by their initials, did not have the ability to sue.
He said the law requires plaintiffs to prove harm or the imminent threat of harm before they can challenge a law in court.
A federal judge upheld that ruling, which prompted the appeal to the federal court.
Salt Lake District Attorney David Yocom has said he would not prosecute anybody for sodomy or fornication unless a victim complained to authorities.
During the hearing, Judge Stephanie Seymour asked whether one of the plaintiffs would be prosecuted if his or partner became angry, called authorities and accused him or her of fornication.
Roberts said that was possible and, if that occurred, the plaintiffs would have the legal ability to challenge the law. "They can't invoke the power of a federal court because they have a feeling that one day they could be charged," Roberts argued.
Barnard said consensual sex between loving, heterosexual partners should be protected under their rights to privacy and free speech.
"Sex is a central and effective act of communicating love and affection, and the question is whether or not the partners intended by their actions to communicate something," he said.
"I suggest that intimate, expressive conduct is just as crucial, just as important as political speech. It's the core of the human race, the core of our society."