Resources 05/11/2001
State-by-State Sodomy Law Update
As recently as the early 1960s, all
50 states had some sort of criminal law that outlawed consensual sodomy.
Today, fewer than half the states do. Lambda’s work, throughout
our 25-year history, has always emphasized legal challenges and advocacy
against such laws -- because of both their direct and indirect harm to gay
people. Our efforts will not stop until all of United States are “free.”
Generally, these sodomy laws criminalize oral or anal sex, between
consenting adults including in the privacy of their homes. Direct criminal
enforcement of these laws against private activity between consenting
adults is rare, but even without enforcement such laws stigmatize certain
forms of sexuality. The laws are used by police and prosecutors to support
“solicitation” arrests, often in the context of sting operations that
target gay male cruising places. The laws very commonly function as an
irrational excuse for denying lesbians and gay men basic civil rights and
equal treatment.
While most sodomy laws, as written, apply to everyone -- regardless of
marital status, gender or sexual orientation -- they are
disproportionately invoked against lesbians and gay men. (Some states (see
list below) have made this discriminatory focus explicit.) This
differential application occurs despite the facts that (a) those forms of
sexuality are common among both heterosexual and gay couples, and (b)
conversely, a lesbian or gay couple with a sexual relationship is not
necessarily violating such a law. In the minds of many, however, sodomy
laws uniquely brand lesbians and gay men as “criminals.”
In Florida, Georgia, and Texas, for example, sodomy statutes have been
used to deny employment to gay job applicants. In North Carolina and
Virginia, such laws have provided a basis for denying child custody and
visitation rights to lesbian mothers or gay fathers. Indeed, sodomy laws
have been put forward as a purported rationale against enacting civil
rights laws that bar discrimination based on sexual orientation. In this
way, the sodomy laws very broadly subject lesbians and gay men to
second-class citizenship.
In the most infamous civil rights case involving a gay plaintiff, the
Supreme Court upheld Georgia’s sodomy law against a federal right to
privacy challenge in Bowers v. Hardwick. That decision has been
widely criticized, however, and since then the state's highest court
overturned that law. State appellate courts in Montana, Kentucky, and
Tennessee also have interpreted their state constitutions to prohibit the
criminalization of consensual, private oral or anal sex between adults.
Moreover, Romer v. Evans opens the door for new, federal equal
protection challenges to these pernicious enactments.
NOTES:
1 In June 2000, a Texas court of appeals
overturned the "Homosexual Conduct" law. The deadline to file an appeal in
Lawrence and Garner v. Texas, in which Lambda is lead counsel, has not yet
passed.
2 In Louisiana, two seperate courts have
found that the Louisiana sodomy law violates the state constitution's
privacy guarantee. State v. Smith was appealed to the Louisiana
Supreme Court. It is likely State v. Legal will also be appealed to
the Louisiana Supreme Court.
3 In Arizona on May 8, 2001, Gov. Jane Hull
signed into law a bill that repeals a ban on sodomy, oral sex and
cohabitation.
4 In Arkansas on March 23, 2001, a court
overturned the state's anti-gay sodomy law in response to a challenge from
seven lesbian and gay state residents, represented by Lambda in Picado
v. Jegley.
5 In Michigan Organization for Human
Rights v. Kelley, No. 88-815820 CZ (Mich. Cir. Ct. July 9, 1990) a
trial court ruled Michigan’s sodomy law unconstitutional under the state
constitution. Because the attorney general did not appeal that ruling,
Michigan law makes it binding on all state prosecutors, at least absent
future litigation that might attempt to resuscitate the sodomy statute.
6 In 1999, a Missouri appeals court, in
State v. Cogshell, has construed the sodomy statute not to apply to
consensual sexual relations.
