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Sodomy laws in the United States

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Decriminalization of same-sex sexual intercourse in the United States
  1962
  1971
  1972
  1973
  1974
  1975
  1976
  1977
  1978
  1979
  1980
  1983
  1985
  1992
  1993
  1996
  1997
  1998
  1999
  2001
  2003
List of state statutes banning sodomy
  No statute banning sodomy
  Statute bans bestiality
  Statute bans same-sex sodomy
  Statute bans sodomy

Sodomy laws in the United States, which outlawed a variety of sexual acts, were inherited from colonial laws in the 1600s.[1] While they often targeted sexual acts between persons of the same sex, many statutes employed definitions broad enough to outlaw certain sexual acts between persons of different sexes, in some cases even including acts between married persons.

Through the 20th century, the gradual liberalization of American sexuality led to the elimination of sodomy laws in most states. During this time, the Supreme Court upheld the constitutionality of sodomy laws in Bowers v. Hardwick in 1986. However, in 2003, the Supreme Court reversed the decision with Lawrence v. Texas, invalidating sodomy laws in the remaining 14 states (Alabama, Florida, Idaho, Kansas, Louisiana, Michigan, Mississippi, Missouri (statewide), North Carolina, Oklahoma, South Carolina, Texas, Utah, and Virginia).

History

Colin Talley argues that the sodomy statutes in colonial America in the 17th century were largely unenforced. The reason he argues is that male-male eroticism did not threaten the social structure or challenge the gendered division of labor or the patriarchal ownership of wealth.[2] There were gay men on General Washington's staff and among the leaders of the new republic,[3] even though in Virginia there was a maximum penalty of death on Sodomy. In 1779, Thomas Jefferson tried to reduce the maximum punishment to castration.[4] It was rejected by the Virginia legislature.[5]

Prior to 1962, sodomy was a felony in every state, punished by a lengthy term of imprisonment and/or hard labor. In that year, the Model Penal Code (MPC) — developed by the American Law Institute to promote uniformity among the states as they modernized their statutes — struck a compromise that removed consensual sodomy from its criminal code while making it a crime to solicit for sodomy. In 1962 Illinois adopted the recommendations of the Model Penal Code and thus became the first state to remove criminal penalties for consensual sodomy from its criminal code,[6] almost a decade before any other state. Over the years, many of the states that did not repeal their sodomy laws had enacted legislation reducing the penalty. At the time of the Lawrence decision in 2003, the penalty for violating a sodomy law varied very widely from jurisdiction to jurisdiction among those states retaining their sodomy laws. The harshest penalties were in Idaho, where a person convicted of sodomy could earn a life sentence. Michigan followed, with a maximum penalty of 15 years' imprisonment while repeat offenders got life.[citation needed]

By 2002, 36 states had repealed their sodomy laws or their courts had overturned them. By the time of the 2003 Supreme Court decision, the laws in most states were no longer enforced or were enforced very selectively. The continued existence of these rarely enforced laws on the statute books, however, was often cited as justification for discrimination against gay men, lesbians, and bisexuals.

On June 26, 2003, the U.S. Supreme Court in a 6–3 decision in Lawrence v. Texas struck down the Texas same-sex sodomy law, ruling that this private sexual conduct is protected by the liberty rights implicit in the due process clause of the United States Constitution. This decision invalidated all state sodomy laws insofar as they applied to noncommercial conduct in private between consenting civilians and reversed the Court's 1986 ruling in Bowers v. Hardwick that upheld Georgia's sodomy law.

Before that 2003 ruling, 27 states, the District of Columbia, and 4 territories had repealed their sodomy laws by legislative action, 9 states had had them overturned or invalidated by state court action, 4 states still had same-sex sodomy laws, and 10 states, Puerto Rico, and the U.S. military had laws applying to all regardless of gender. In 2005 Puerto Rico repealed its sodomy law, and in 2006 Missouri repealed its law against "homosexual conduct". In 2013, Montana removed "sexual contact or sexual intercourse between two persons of the same sex" from its definition of deviate sexual conduct, Virginia repealed its lewd and lascivious cohabitation statute, and sodomy was legalized in the US armed forces.

In 2005, basing its decision on Lawrence, the Supreme Court of Virginia in Martin v. Ziherl invalidated § 18.2-344, the Virginia statute making fornication between unmarried persons a crime.[7]

Louisiana's statutes still include "unnatural carnal copulation by a human being with another of the same sex" in their definition of "crimes against nature", punishable (in theory) by a fine of up to $2,000 or a prison sentence of up to five years, with or without hard labor;[8] however, this section was further mooted by the United States Court of Appeals for the Fifth Circuit in 2005 in light of the Lawrence decision.[9]

In State v. Whiteley (2005), the North Carolina Court of Appeals ruled that the crime against nature statute, N.C. G.S. § 14-177,[10] is not unconstitutional on its face because it may properly be used to criminalize sexual conduct involving minors, non-consensual or coercive conduct, public conduct, and prostitution.[11]

On January 31, 2013, the Senate of Virginia passed a bill repealing § 18.2-345, the lewd and lascivious cohabitation statute enacted in 1877. On February 20, 2013, the Virginia House of Delegates passed the bill by a vote of 62 to 25 votes. On March 20, 2013, Governor Bob McDonnell signed the repeal of the lewd and lascivious cohabitation statute from the Code of Virginia.[12]

On March 12, 2013, a three-judge panel of the Court of Appeals for the Fourth Circuit struck down § 18.2-361, the crimes against nature statute. On March 26, 2013, Attorney General of Virginia Ken Cuccinelli filed a petition to have the case reheard en banc, but the Court denied the request on April 10, 2013, with none of its 15 judges supporting the request.[13] On June 25, Cuccinelli filed a petition for certiorari asking the U.S. Supreme Court to review the Court of Appeals decision, which was rejected on October 7.[14][15]

On February 7, 2014, the Virginia Senate voted 40-0 in favor of revising the crimes against nature statue to remove the ban on same-sex sexual relationships. On March 6, 2014, the Virginia House of Delegates voted 100-0 in favor of the bill. On April 7, the Governor submitted slightly different version of the bill. It was enacted by the Legislature on April 23, 2014. The law took effect upon passage.[16]

In April 2014, a proposed Louisiana bill sought to revise the state's crime against nature law, maintaining the existing prohibition against sodomy during the commission of rape and child sex abuse, and against sex with animals, but removing the unconstitutional prohibition against sex between consenting adults. The bill was defeated on April 15, 2014 by a vote of 66 to 27.[17]

Utah voted to revise its sodomy laws to include only forcible sodomy and sodomy on children rather than any sexual relations between consenting adults on February 26, 2019.[18] Governor Gary Herbert signed the bill into law on March 26, 2019.[19][20]

On May 23, 2019, the Alabama House of Representatives passed, with 101 voting yea and 3 absent, Alabama Senate Bill 320, which repeals the ban on "deviate sexual intercourse". On May 28, 2019, the Alabama State Senate passed Alabama Senate Bill 320, with 32 yea and 3 absent. The bill took effect on September 1, 2019.[21][22]

Maryland voted to repeal its sodomy law on March 18, 2020. The bill became law in May 2020 without the signature of Governor Larry Hogan.[23]

As of October 1, 2020, 14 states either have not yet formally repealed their laws against sexual activity among consenting adults or have not revised them to accurately reflect their true scope in the aftermath of Lawrence v. Texas. Often, the sodomy law was drafted to also encompass other forms of sexual conduct such as bestiality, and no attempt has subsequently succeeded in separating them. Elven states' statutes purport to ban all forms of sodomy, some including oral intercourse, regardless of the participants' genders: Florida, Georgia, Idaho, Louisiana, Massachusetts, Michigan, Minnesota, Mississippi, North Carolina, Oklahoma and South Carolina. Three states specifically target their statutes at same-sex relations only: Kansas,[24][25] Kentucky, and Texas.

Federal law

Sodomy laws in the United States were largely a matter of state rather than federal jurisdiction, except for laws governing the District of Columbia and the U.S. Armed Forces.

District of Columbia

In 1801, Congress enacted the District of Columbia Organic Act of 1801 that continued all criminal laws of Maryland and Virginia in the now formally structured District, with those of Maryland applying to that portion of the District ceded from Maryland, and those of Virginia applying to that portion ceded from Virginia. At the time, Maryland had a sodomy law applicable only to free males with a punishment of "labour for any time, in their discretion, not exceeding seven years for the same crime, on the public roads of the said county, or in making, repairing or cleaning the streets or bason [sic] of Baltimore-town" and the death penalty for slaves committing sodomy, while Virginia had a penalty of 1–10 years for free persons committing sodomy, but had the death penalty for slaves committing sodomy. The law went into effect on February 27, 1801.[26]

In 1831, Congress established penalties in the District of Columbia for a number of crimes, but not for sodomy. It specified that "every other felony, misdemeanor, or offence not provided for by this act, may and shall be punished as heretofore[.]" At the time, Maryland and Virginia had a penalty of 1–10 years for committing sodomy. It went into effect in March 2, 1831.[26]

In 1892, Congress passed a law for the District of Columbia that states that "for the preservation of the public peace and the protection of property within the District of Columbia." Labeled in the law as vagrants were "all public prostitutes, and all such persons who lead a notoriously lewd or lascivious course of life[.]" All offenders had to post bond of up to $200 for good behavior for a period of six months. The law went into effect on July 29, 1892.[26]

In 1898, Congress deleted the word "notoriously" from the provision concerning a lewd or lascivious course of life, thereby allowing prosecution of those without notoriety. The bond for good behavior was raised to $500, and the law was made clearly gender-neutral. The law went into effect on July 8, 1898.[26]

In 1901, Congress adopting a new code for the District of Columbia that expressly recognized common-law crimes, with a penalty for them of up to five years and/or a $1,000 fine. The law went into effect on March 3, 1901.[26]

In 1935, Congress passed a law for the District of Columbia that made it a crime for "any person to invite, entice, persuade, or to address for the purpose of inviting, enticing, or persuading any person or persons...to accompany, to go with, to follow him or her to his or her residence, or to any other house or building, inclosure, or other place, for the purpose of prostitution, or any other immoral or lewd purpose." It imposed a fine of up to $100, up to 90 days in jail, and courts were permitted to "impose conditions" on anyone convicted under this law, including "medical and mental examination, diagnosis and treatment by proper public health and welfare authorities, and such other terms and conditions as the court may deem best for the protection of the community and the punishment, control, and rehabilitation of the defendant." The law went into effect on August 14, 1935.[26]

In 1941, Congress enacted a new solicitation law for the District of Columbia that labeled a "vagrant" any person who "engages in or commits acts of fornication or perversion for hire." The law went into effect on December 17, 1941.[26]

In 1948, Congress enacted the first sodomy law in the District of Columbia, which established a penalty of up to 10 years in prison or a fine of up to $1,000 for sodomy. Also included with this sodomy law was a psychopathic offender law and a law "to provide for the treatment of sexual psychopaths in the District of Columbia, and for other purposes." The law went into effect on June 9, 1948.[26]

In 1953, Congress changed the solicitation law in the District of Columbia so that the jail term of up to 90 days was retained, but the maximum fine was raised to $250, and the reference to the power of judges to "impose conditions" on the defendant was removed. The law went into effect on June 29, 1953.[26]

In 1981, after the District of Columbia regained home rule from Congress, it enacted a law that repealed the sodomy law, as well as other consensual acts, and made the sexual assault laws gender-neutral. However, the U.S. House exercised the power that it retained to veto laws passed by the District of Columbia Council. On October 1, 1981, the House voted 281-119 to disallow the new law.[27][28][29][30][31][32] In 1983, one of the House vetoes by Congress was declared unconstitutional by the U.S. Supreme Court in the case of Immigration and Naturalization Service v. Chadha, but the law was repealed by an act of Congress in a revision to the home-rule law required by the Supreme Court decision.[26]

Repeal

In 1993, the District of Columbia passed a law repealing the sodomy law, but this time Congress did not interfere and allowed the law to go into effect.[26]

Military

Main article: Section 839(a) of title 10 United States Code § 925 - Article 125.

Although the U.S. military discharged soldiers for homosexual acts throughout the eighteenth and nineteenth century, U.S. military law did not expressly prohibit homosexuality or homosexual conduct until February 4, 1921.[33]

On March 1, 1917, the Articles of War of 1916 were implemented. This included a revision of the Articles of War of 1806, the new regulations detail statutes governing U.S. military discipline and justice. Under the category Miscellaneous Crimes and Offences, Article 93 states that any person subject to military law who commits "assault with intent to commit sodomy" shall be punished as a court-martial may direct.[34]

On June 4, 1920, Congress modified Article 93 of the Articles of War of 1916. It was changed to make the act of sodomy itself a crime, separate from the offense of assault with intent to commit sodomy.[34] It went into effect on February 4, 1921.[35]

On May 5, 1950, the UCMJ was passed by Congress and was signed into law by President Harry S. Truman, and became effective on May 31, 1951. Article 125 forbids sodomy among all military personnel, defining it as "any person subject to this chapter who engages in unnatural carnal copulation with another person of the same or opposite sex or with an animal is guilty of sodomy. Penetration, however slight, is sufficient to complete the offence."[34]

As for the U.S. Armed Forces, the Court of Appeals for the Armed Forces has ruled that the Lawrence v. Texas decision applies to Article 125, severely narrowing the previous ban on sodomy. In both United States v. Stirewalt and United States v. Marcum, the court ruled that the "conduct [consensual sodomy] falls within the liberty interest identified by the Supreme Court,"[36] but went on to say that despite the application of Lawrence to the military, Article 125 can still be upheld in cases where there are "factors unique to the military environment" that would place the conduct "outside any protected liberty interest recognized in Lawrence."[37] Examples of such factors include rape, fraternization, public sexual behavior, or any other factors that would adversely affect good order and discipline. Convictions for consensual sodomy have been overturned in military courts under Lawrence in both United States v. Meno[38] and United States v. Bullock.[39]

Repeal

On December 26, 2013, President Barack Obama signed into law the National Defense Authorization Act for Fiscal Year 2014, which repealed the ban on consensual sodomy found in Article 125.[40]

State and territorial laws prior to Lawrence v. Texas

Below is a table of sodomy laws and penalties in U.S. states and territories prior to their invalidation in 2003.[41][42]

The table indicates which acts or groups were covered under each sodomy law, as pertaining to consenting adults. It also indicates the year and method of repeal or strikedown.

State or
territory 		Year of
repeal or
strikedown 		Covered Invalidated by
Oral sex Anal sex Homosexual
couples 		Unmarried
heterosexual
couples 		Married
couples
Alabama 2003
Alaska 1971/
1980
  • Legislative repeal
    • 1971: Oral sex decriminalized
    • 1980: Anal sex decriminalized
American
Samoa 		1979 N/A
  • Legislative repeal (1979)
Arizona 2001
  • Legislative repeal
Arkansas 1975/
2001/
2005
  • Legislative repeal (1975, reinstated against same-sex 1977)
  • Arkansas Supreme Court
    (Jegley v. Picado)[43]
  • Legislative repeal (2005, separate ban on bestiality)[44]
California 1976 N/A
  • Legislative repeal
Colorado 1972 N/A
  • Legislative repeal
Connecticut 1971 N/A
  • Legislative repeal
Delaware 1973 N/A
  • Legislative repeal
District of
Columbia 		1993 N/A
  • Legislative repeal
  • Legislative repeal (1995)
  • Legislative repeal (2004)
Florida 2003
  • U.S. Supreme Court (Lawrence v. Texas);
    NOTE: Franklin v. State, 1971, struck down original "crimes against nature" statute; sodomy still could be prosecuted under a separate statute against "unnatural and lascivious acts";[45] law against adultery also retained[46]
Georgia 1998
Guam 1978 N/A
  • Legislative repeal
Hawaii 1973 N/A
  • Legislative repeal
Idaho 1971/
2003
  • Legislative repeal (1971,
    laws reinstated 1972)
  • U.S. Supreme Court
    (Lawrence v. Texas)
Illinois 1962 N/A
  • Legislative repeal, the first state to do so
Indiana 1976 N/A
  • Legislative repeal
Iowa 1978 N/A
  • Legislative repeal
Kansas 2003
  • Legislative repeal (1969 for heterosexuals, same-sex sexual activity still illegal - the first state to target LGBT people)[47]
  • U.S. Supreme Court
    (Lawrence v. Texas)
Kentucky 1992
Louisiana 2003
  • U.S. Supreme Court
    (Lawrence v. Texas)
Maine 1976 N/A
  • Legislative repeal
Maryland 1999
  • Maryland Court of Appeals
    • Schochet v. State (1990)
      (heterosexuals)[49]
    • Williams v. Glendening (1998)
      (oral sex, homosexuals, ruling)
    • Williams v. Glendening (1999)
      (anal sex, consent decree)
  • Legislative repeal effective from October 1, 2020.[50]
Massachusetts 1974
Michigan 1990/
2003
Minnesota 2001
Mississippi 2003
  • U.S. Supreme Court
    (Lawrence v. Texas)
Missouri 1999/
2003
  • Missouri Court of Appeals,
    Western District
    (State of Missouri v. Cogshell) (1999)
    (Western District counties only)
  • U.S. Supreme Court
    (Lawrence v. Texas)
    (rest of Missouri)
  • Legislative repeal (2006)
Montana 1997
  • Legislative action (1974)
    (heterosexual oral and anal sex only - the reference to "crimes against nature" was repealed and replaced with "deviate sexual relations"[58])
  • Montana Supreme Court
    (Gryczan v. State)[59]
  • Legislative action (2013) repealed "deviant sexual relations"[60][61]
Nebraska 1978 N/A
  • Legislative repeal
Nevada 1993 N/A
  • Legislative repeal
New
Hampshire 		1975 N/A
  • Legislative repeal
New Jersey 1978 N/A
  • Legislative repeal
New Mexico 1975 N/A
  • Legislative repeal
New York 1980/
2000
North Carolina 2003
  • U.S. Supreme Court
    (Lawrence v. Texas)
Northern
Mariana
Islands 		1983 N/A
  • Legislative repeal
North Dakota 1973 N/A
  • Legislative repeal
Ohio 1974 N/A
  • Legislative repeal
Oklahoma 1988/
2003
Oregon 1972 N/A
  • Legislative repeal
Pennsylvania 1972/
1980
Puerto Rico 1974/
2003
  • Legislative action (1974)
    (heterosexual oral sex only)
  • U.S. Supreme Court
    (Lawrence v. Texas)
    (all other forms)
  • Legislative repeal (2006)[63]
Rhode Island 1998
  • Legislative repeal
South Carolina 2003
  • U.S. Supreme Court
    (Lawrence v. Texas)
South Dakota 1977 N/A
  • Legislative repeal
Tennessee 1996
Texas 2003
  • Legislative action (1974)
    (heterosexual oral and anal sex only - the reference to "sodomy" was repealed and replaced with "homosexual conduct"[65])
  • U.S. Supreme Court
    (Lawrence v. Texas)
Utah 1971/
2003
  • Legislative repeal (1971, reinstated in full 1972)
  • U.S. Supreme Court
    (Lawrence v. Texas)
  • Legislative repeal (2019)
Vermont 1977 N/A
  • Legislative repeal
Virgin Islands 1985 N/A
  • Legislative repeal
Virginia 2003
Washington 1976 N/A
  • Legislative repeal
West Virginia 1976 N/A
  • Legislative repeal
Wisconsin 1983 N/A
  • Legislative repeal
Wyoming 1977 N/A
  • Legislative repeal

See also

References

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  28. ^ To Proceed to the Consideration of H. Res. 208, The Resolution Disapproving the Action of the District of Columbia Council in Revising Criminal Penalties in Certain Sex-Related Offenses. (Motion Agreed To) Archived 2014-10-19 at the Wayback Machine
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  66. ^ Weiner, Rachel (6 March 2014). "Virginia lawmakers repeal sodomy ban". The Washington Post. Archived from the original on 7 March 2014. Retrieved 18 May 2014.

Further reading

  • Ellen Ann Andersen, Out of the Closets and Into the Courts: Legal Opportunity Structure and Gay Rights Litigation (University of Michigan Press, 2006), ISBN 0-472-11397-6, Ch. 4 "Sodomy Reform from Stonewall to Bowers," Ch. 5 "Sodomy Reform from Bowers to Lawrence", available in part online, accessed August 26, 2010
  • Carlos A. Ball, From the Closet to the Courtroom: Five LGBT Rights Lawsuits that have Changed our Nation (Beacon Press, 2010), ISBN 0-8070-0078-7
  • Patricia A. Cain, Rainbow Rights: The Role of Lawyers and Courts in the Lesbian and Gay Civil Rights Movement (Boulder, CO: Westview Press, 2000), ISBN 0-8133-2618-4, Ch. 4 "Private Rights: 1950-1985", available in part online, accessed August 26, 2010
  • William N. Eskridge, Dishonorable Passions: Sodomy Laws in America, 1861-2003 (NY: Viking, 2008), ISBN 0-670-01862-7
  • Leslie Moran, The Homosexual(ity) of Law (NY: Routledge, 1996)
  • Martha C. Nussbaum, From Disgust to Humanity: Sexual Orientation and Constitutional Law (NY: Oxford University Press, 2010), ISBN 0-19-530531-0
  • Jason Pierceson, Courts, Liberalism, and Rights: Gay Law and Politics in the United States and Canada (Philadelphia: Temple University Press, 2005), available in part online, accessed August 26, 2010
  • Daniel R. Pinello, Gay Rights and American Law (Cambridge University Press, 2003), available in part online, accessed August 26, 2010
  • Jerald Sharum "Controlling Conduct: The Emerging Protection of Sodomy in the Military" in Albany Law Review, vol. 69, No. 4, 2006
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