Last Friday, the Alabama Court of Criminal Appeals ruled that consensual anal sex between two male adults is legal. The state's ban on sodomy, covered under its "sexual misconduct" statute, is officially unconstitutional.
Which would be a remarkable milestone, if not for the fact that the Supreme Court declared this kind of law unconstitutional more than a decade ago. In its 2003 ruling in Lawrence v. Texas, the justices struck down Texas's sodomy ban, invalidating similar laws in 13 other states, including Alabama. "The court could not have been clearer that sexual relations between consenting adults is permissible," said Suzanne Goldberg, a law professor at Columbia University who specializes in gender and sexuality. Right after the ruling, Alabama's attorney general even acknowledged that it would nullify the state's sodomy laws.
So why did Alabama prosecutors try to convict a man, Dewayne Williams, on sodomy charges—seven years later, in 2010? Why did it take until 2014 for a state court to acknowledge a decade-old federal ruling?
The simple-sounding answer probably isn't the right one. "The notion that there’s a serious commitment to use the law to prosecute sexual acts in Alabama is a non-starter," said Ronald Krotoszynski, a constitutional law professor at the University of Alabama. The real question is this, he said: "Why don’t lawmakers clean up these codebooks?" When federal courts make rulings that affect state laws, those laws can theoretically stay written the same way—they may just carry the minor inconvenience of being unconstitutional.