Idaho is the last place in the United States that you might imagine where gay sex is more legal than straight sex. But thanks to a couple of forgotten blue laws that survived an early 2000s Supreme Court decision, it’s true—straight sex can land you in jail in Idaho, but gay sex cannot.
A recent story in the Idaho Statesman concerned a judgment in the case of a man who as an 18-year-old had sex with two 16-year-old boys in Southwest Idaho. He was convicted under Idaho’s former sodomy laws that criminalized gay sex and served seven years in the Idaho State Penitentiary.
This was back in the 1990s, before the landmark 2003 U.S. Supreme Court case, Lawrence v. Texas, invalidated sodomy laws like Idaho’s on the grounds that they violate the Due Process Clause of the Constitution by punishing gay people for similar conduct that’s legal for straight people. In fact, under Idaho law at the time—and still today—if he had had sex with two 16-year-old girls instead of boys, he would never have been arrested at all.
The man’s case concerned being his being required by the state of Montana to register as a sex offender. He complained that such registration was killing his home and job search possibilities. The judge agreed and ordered Montana to expunge his records and end his registration.
“None of the governmental interests in maintaining a sexual offender registry are served by [the man’s] inclusion,” Christensen wrote. “Engagement in intimate sexual contact with a person of the same sex, without more, cannot be said to render someone a threat to the public safety.”Idaho Statesman, “Man who had sex at 18 with two 16-year-old boys in Idaho wins court case against Montana“, May 16, 2021
Reading the story shocked me. I knew Idaho was one of the states with a sodomy law that was overturned by Lawrence. But I hadn’t considered that people’s prior records for sodomy convictions would still exist. Or that people harmed by those convictions would still have to fight in court to have their reputations restored.
It’s something we see at play lately as state after state legalizes possession, cultivation, and dealing marijuana, yet plenty of disproportionately Black and brown men still serve prison sentences, or remain on parole or probation, or still carrying with them a criminal record that harms their home and job search possibilities.
For this post I decided I would look up the Idaho law that had criminalized sodomy. It was not there, of course, after Lawrence, but before I could go to the internet archives for an old copy of the law, “fornication” caught my eye, as one might expect. Specifically…
FORNICATION. Any unmarried person who shall have sexual intercourse with an unmarried person of the opposite sex shall be deemed guilty of fornication, and, upon conviction thereof, shall be punished by a fine of not more than $300 or by imprisonment for not more than six months or by both such fine and imprisonment; provided, that the sentence imposed or any part thereof may be suspended with or without probation in the discretion of the court.Idaho Code §18–6603
If I’m reading this correctly, Idaho has completely flip-flopped from its sexually-discriminatory laws of the 1990s. If the 18-year-old man now has sex with two 16-year-old boys, it’s legal; if he has sex with two 16-year-old girls, it’s fornication and thus a crime.
Ah, but only if the man and girls are unmarried, you see. For if someone involved in the tryst is married, then in Idaho you have committed the crime of…
ADULTERY. A married man who has sexual intercourse with a woman not his wife, an unmarried man who has sexual intercourse with a married woman, a married woman who has sexual intercourse with a man not her husband, and an unmarried woman who has sexual intercourse with a married man, shall be guilty of adultery, and shall be punished by a fine of not less than $100, or by imprisonment in the county jail for not less than three months, or by imprisonment in the state penitentiary for a period not exceeding three years, or in the county jail for a period not exceeding one year, or by fine not exceeding $1000.Idaho Code §18–6601
Interestingly, the fine for fornication is at most $300, but the fine for adultery is mandatory minimum $100 and up to $1,000. The jail sentence for fornication is up to six months, but the sentence for adultery is a mandatory minimum three months and up to three years.
But only if you’re straight. Nothing in the fornication or adultery statute would punish gay sex. Since the 2015 U.S. Supreme Court case Obergefell v. Hodges, gay people can get married in Idaho just like straight people, but only straight people can be punished for adultery. Since Lawrence, gay sex of any kind in Idaho, married or unmarried, can’t be punished, so only straight people can be punished for fornication.
Obviously, the fornication and adultery statutes wouldn’t withstand a legal challenge. They are as much of a violation of Due Process as the sodomy laws were before Lawrence. But since these laws only target straight people, they’re not likely to be enforced. With no victims, there’s no popular movement to change these laws.
Unless we start one! What do you say? Who’s with me to start a new campaign? IHAFLO—Idaho Heterosexual Adultery & Fornication Legalization Organization. “What do we want? Adultery and Fornication! Who’s it for? Straight people!”