Salt Lake City – The nation’s highest court struck down laws banning consensual sodomy in June, but a judge has tossed out one man’s bid to get Utah’s anti-sodomy law — and another one banning premarital sex — off the books.
Third District Judge L.A. Dever ruled a man identifying himself as D. Berg had no right to challenge the laws in court because he had not been charged with either crime.

The ruling apparently now leaves it up to state legislators to repeal both statutes. Dever rejected an exception for “matters of great public interest and societal impact,” which he said could have kept Berg’s case alive.

“The Court concludes that the matter would be more properly addressed by other branches of government, such as the Legislature,” Dever wrote, “and therefore the issue is not of such great public importance to grant Berg standing.”

Berg claimed he feared future arrest because he has privately violated the sodomy law by having heterosexual oral sex, and the fornication law by having sex with another unmarried person.

Utah’s consensual sodomy law forbids “any sexual act with a[n] [unmarried] person who is 14 years of age or older involving the genitals of one person and the mouth or anus of another person, regardless of the sex of either participant.” The anti-fornication statute bans premarital sex, saying “any unmarried person who shall voluntarily engage in sexual intercourse with another is guilty of fornication.”

Both crimes are class B misdemeanors punishable by up to 6 months in jail and a $1,000 fine. Salt Lake civil rights attorney Brian Barnard said his client will appeal Dever’s ruling.

“Deference to the legislative branch of our state government on this issue is troublesome, to say the least,” Barnard said. “Our lawmakers are unwilling to protect the interests, including privacy, of citizens outside the Legislature’s conception of the mainstream. Hopefully, the Utah Supreme Court will better understand and apply the law to resolve these issues.”

Berg had sought a temporary restraining order preventing the laws from being enforced while the lawsuit was pending, $1 in damages, and attorney’s fees. In its June ruling, the U.S. Supreme Court held a Texas law banning gay sex unconstitutional. The justices said consensual sodomy laws are unconstitutional attempts to control personal relationships that are “within the liberty of persons to choose without being punished as criminals.”

The decision did not apply to two other portions of Utah’s statute that prohibit forcible, or nonconsensual, sodomy and sodomy on a child.