Sodomy laws in the United States

U.S. sodomy laws by the year when they were repealed or struck down.

  Laws repealed or struck down before 1970.

  Laws repealed or struck down from 1970-1979.

  Laws repealed or struck down from 1980-1989.

  Laws repealed or struck down from 1990-1999.

  Laws repealed or struck down from 2000-2002.

  Laws struck down by the Supreme Court of the United States in 2003.

Sodomy laws in the United States, which outlawed a variety of sexual acts, were historically universal. 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 as well, sometimes even acts between married persons.

Through the 20th century, the gradual liberalization of American sexual mores 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, Missouri, Mississippi, North Carolina, Oklahoma, South Carolina, Texas, Utah, and Virginia).

History

In 1778, Thomas Jefferson wrote a law in Virginia which contained a punishment of castration for men who engage in sodomy, however, what was intended by Jefferson as a liberalization of the sodomy laws in Virginia at that time was rejected by the Virginia Legislature, which continued to prescribe death as the maximum penalty for the crime of sodomy in that state.

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, almost a decade before any other state.^{[citation needed]} 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. This was later invalidated in the case of Michigan Organization for Human Rights v. Kelly (1987).^{[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 and lesbians.

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, in 2006 Missouri repealed its law against "homosexual conduct", and in 2013 Montana removed "sexual contact or sexual intercourse between two persons of the same sex" from its definition of deviate sexual conduct. Three states have yet to repeal such laws: Oklahoma, Kansas and Texas.

State laws prior to 2003

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

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						U.S. Supreme Court (Lawrence v. Texas)
Alaska	1971/ 1980						Legislative repeal 1971: Oral sex decriminalized 1980: Anal sex decriminalized
American Samoa	1889	N/A					Legislative repeal (1979)
Arizona	2001						Legislative repeal
Arkansas	1975/ 2001						Legislative repeal (1975, reinstated against same-sex 1977) Arkansas Supreme Court (Jegley v. Picado)
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
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"; law against adultery also retained
Georgia	1998						Supreme Court of Georgia (Powell v. Georgia)
Guam	1976	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) U.S. Supreme Court (Lawrence v. Texas)
Kentucky	1992						Legislative repeal (1974 for heterosexuals, same-sex sexual activity still illegal) Kentucky Supreme Court (Kentucky v. Wasson)
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) Williams v. Glendening (1998) (oral sex, homosexuals, ruling) Williams v. Glendening (1999) (anal sex, consent decree)
Massachusetts	1974						Massachusetts Supreme Judicial Court (Commonwealth v. Balthazar) (1974) (GLAD v. Attorney General) (2002)
Michigan	1990/ 2003						Michigan 3rd Circuit Court (Michigan Organization for Human Rights v. Kelley) (1990) (Applied directly to Wayne County prosecutors, uncertain whether ruling was binding on all prosecutors statewide) U.S. Supreme Court (Lawrence v. Texas) (rest of Michigan)
Minnesota	2001						Minnesota Court of Appeals (Doe v. Ventura)
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") Montana Supreme Court (Grcyzan v. State) Legislative action (2013) repealed "deviant sexual relations"
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						New York Court of Appeals (New York v. Onofre) (1980) (excluding the New York National Guard) Legislative repeal, 2000 (applied to New York National Guard)
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						Oklahoma Court of Criminal Appeals (Newsom v. State) (1988) (heterosexuals) U.S. Supreme Court (Lawrence v. Texas) (homosexuals)
Oregon	1972	N/A					Legislative repeal
Pennsylvania	1972/ 1980						Legislative action, 1972 (married couples only) Supreme Court of Pennsylvania (Commonwealth v. Bonadio) (all other relationships) Legislative repeal, 1995
Puerto Rico	1974/ 2003						Legislative action (1974) (heterosexual oral sex only) U.S. Supreme Court (Lawrence v. Texas) (all other forms) Legislative repeal (2006)
Rhode Island	1998						Legislative repeal
South Carolina	2003						U.S. Supreme Court (Lawrence v. Texas)
South Dakota	1977	N/A					Legislative repeal
Tennessee	1996						Legislative repeal (1989 for heterosexuals, same-sex sexual activity still illegal) Tennessee Court of Criminal Appeals (Campbell v. Sundquist) (appeal denied by the Tennessee Supreme Court)
Texas	2003						Legislative action (1974) (heterosexual oral and anal sex only - the reference to "sodomy" was repealed and replaced with "homosexual conduct") U.S. Supreme Court (Lawrence v. Texas)
Utah	1971/ 2003						Legislative repeal (1971, reinstated in full 1972) U.S. Supreme Court (Lawrence v. Texas)
Vermont	1977	N/A					Legislative repeal
Virgin Islands	1984	N/A					Legislative repeal
Virginia	2003						U.S. Supreme Court (Lawrence v. Texas) Supreme Court of Virginia (Martin v. Ziherl) (2005)
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

Military since 2003

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," 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." 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 and United States v. Bullock.

See also

• LGBT rights in the United States
• List of sex-related court cases in the United States

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

External links

• Sodomy Laws in the United States
• The Sensibilities of Our Forefathers: The History of Sodomy Laws in the United States by George Painter