No standing to challenge sodomy and fornication laws.

Everybody knows that Utah’s sodomy and fornication statutes are unenforceable against consenting adults. But for some reason, Brian Barnard feels like he needs to challenge them anyway.

D.A.R. v. State, 2006 UT App 114

D.A.R sought an injunction preventing the State from enforcing its sodomy and fornication laws. He claimed that he had engaged in “private, noncommercial, consensual oral sex and sexual intercourse with an unmarried woman” and that he intends to continue to have sex with unmarried women and “fears future criminal prosecution.”

The court threw out his suit on standing grounds, and the court of appeals affirmed. To have standing in Utah, a plaintiff must show one of the following three facts:

1) he has suffered a palpable injury;
2) no one else has a greater interest in the litigation than he; or
3) the issue is of sufficient public importance to grant standing.

The court of appeals noted that the State had not threatened to prosecute D.A.R and in fact had submitted an affidavit stating that it had no intention of prosecuting D.A.R. It also cited cases from the Tenth Circuit and from other panels of the court that had denied standing to citizens seeking to overturn Utah’s sodomy and fornication laws (see D.L.S v. Utah, 374 F.3d 971 (10th Cir. 2004); Berg v. State, 2004, UT App, 337, 100 P.3d 261).