The Sensibilities of Our Forefathers
The History of Sodomy Laws in the United States
By George Painter
© Copyright, George Painter 1991-2005
| Alabama | Alaska |
American Samoa |
Arkansas | Arizona | California | Colorado | Connecticut |
Delaware | District of Columbia | Florida |
Guam | Hawaii |
Idaho | Illinois | Indiana | Iowa | Kansas | Kentucky |
Maine | Massachusetts
Maryland | Michigan | Minnesota | Mississippi |
Missouri | Montana |
New Hampshire | New Jersey | New Mexico |
New York | Nevada |
North Carolina |
North Dakota | Northern Mariana Islands |
Oklahoma | Oregon | Pennsylvania |
Puerto Rico | Rhode Island | South Dakota |
South Carolina | Tennessee |
Texas | Utah |
Vermont | Virginia | Virgin Islands |
West Virginia | Wisconsin |
Common Law | Federal
"[T]he particular form of abomination which shocked the
sensibilities of our forefathers."
The above words, stated by the Kansas Supreme
Court in a 1925 sodomy case, sum up the historical attitude of the
Anglo-American legal system toward non-procreative eroticism, an attitude
which survived until the U.S. Supreme Court handed down the Lawrence et al v. Texas decision in 2003. The psychological
discomfort of repressed or moralistic individuals from centuries before created
a jurisprudence relegating the enjoyment of non-procreative physical
intimacy to the status of criminality. Those forefathers’ attitudes controlled
our legal system for a long time. When the broad issue of the constitutionality
of laws outlawing consensual sodomy was brought before the United States Supreme
Court in 1986, nearly 200 years after the adoption of the Bill of Rights,
Justice Byron White’s opinion upholding the laws referred to “the laws of
the many States that still make such conduct illegal and have done so for a very
long time.”1 In addition,
criminal penalties for sodomy "have ancient roots."2
Sodomy was a crime at common law.3
Employing what one writer said was "the scornful tone of a locker-room
conversation,"4 White said that Georgia was
justified in outlawing private, consensual sodomy because of the "presumed
belief of a majority of the electorate in Georgia that homosexual sodomy is
immoral and unacceptable."5 Thus, merely
because the state long had interfered with sexual activity between consenting
adults, that was sufficient constitutional justification for permitting them to
continue doing so. Contraception,6 miscegenation,7
and abortion8 also long were prohibited, but the
Supreme Court found that fact unpersuasive and struck down laws against them,
finding a "liberty" interest in these traditionally prohibited
activities. Moreover, White violated one of his own stated beliefs from a
previous sexual privacy case in which he had said, "I fail to see why the
historical predominance of an unacceptable legislative purpose makes incredible
the emergence of a new and valid one."9 Five
years after Hardwick, White again was critical of the other side. When
the Supreme Court upheld a ban on nude dancing in night clubs, White dissented,
arguing that "simple references to the State’s general interest in
promoting societal order and morality" was "not sufficient
justification" for enacting the ban.10
Constitutional law, therefore, boils down to the personal moral biases of
nine justices of the Supreme Court. Byron White apparently found nothing
personally objectionable with contraception use among the unmarried or with nude
dancing in public, but couldn’t abide private homosexual sodomy, so the
Constitution protected the two former, but not the latter.
The concurring opinion of Chief Justice Warren Burger noted that condemnation
of sodomy "is firmly rooted in Judeao-Christian moral and ethical
standards."11 To strike down the law
"would be to cast aside millennia of moral teaching."12
It was on this basis of ancestors’ moral standards that a twentieth-century
constitutional decision on sodomy laws was based.
As anti-libertarian and harsh as it was, the Hardwick decision hardly
can be surprising, both because of the ideology of the justices who made up the
Court at that time, and because of the Court’s shameful history regarding
minorities. Hardwick was fourth in a string of decisions that
categorically denied fundamental rights to a particular minority based on the
moral or social prejudice of the sitting judges or prevailing passions in
society that affected those judges. The "presumed belief of a majority of
the electorate in Georgia that homosexual sodomy is immoral and
unacceptable" argument that made the sodomy law constitutional is kin to
language in three previous cases.
In 1873, the Supreme Court, deciding Bradwell v. Illinois,13
upheld the right of Illinois to prohibit women from practicing law. The words of
Justice Joseph Bradley, by which he reached a constitutional conclusion, were
constitution of the family organization, which is founded in the
divine ordinance, as well as in the nature of things, indicates the
domestic sphere as that which properly belongs to the domain and functions
of womanhood...So firmly fixed was this sentiment in the founders of the
common law that it became a maxim of that system of jurisprudence that a
woman had no legal existence separate from her husband...The paramount
destiny and mission of woman are to fulfil the noble and benign offices of
wife and mother. This is the law of the Creator. And the rules of civil
society must be adapted to the general constitution of things, and cannot be
based upon exceptional cases. [Emphasis added].14
In 1896, the Court, dealing with state-mandated racial segregation in Plessy
v. Ferguson,15 upheld Louisiana’s law
requiring racial separation on railroad cars. Justice Henry Brown, speaking for
the Court, said that, in determining the necessity of a segregation law, the
Louisiana legislature was
at liberty to act with reference to the established usages, customs and
traditions of the people, and with a view to the promotion of their comfort,
and the preservation of the public peace and good order.16
Thus, the presumed discomfort of whites in close proximity to blacks rendered
constitutional laws requiring blacks to stay away from whites.
The third such decision came in 1944 with Korematsu v. United States.17
During the Second World War, U.S. citizens of Japanese ancestry who happened to
live in Western states were placed under curfew and many were herded into what
were, for all practical purposes, concentration camps. The argument was that it
would be impossible to distinguish loyal citizens from saboteurs and espionage
agents in the country. Since no similar order was issued for citizens of German
ancestry living in Eastern states, even though the United States was just as
much at war with Germany, the underlying racial animus of the policy becomes
clear. Speaking for the majority of the Court upholding restrictions placed only
on citizens of one ancestry, Justice Hugo Black said that
exclusion of those of Japanese origin was deemed necessary because of the
presence of an unascertained number of disloyal members of the group, most
of whom we have no doubt were loyal to this country. It was because we could
not reject the finding of the military authorities that it was impossible to
bring about an immediate segregation of the disloyal from the loyal that we
sustained the validity of the curfew order [issued in a previous case] as
applying to the whole group. In the instant case, temporary exclusion of the
entire group was rested by the military on the same ground.18
This was a euphemism for the government’s actual argument that Japanese all
look alike19 and the paranoia felt about this
claim by non-Japanese citizens justified singling out one ancestry for
Hardwick’s "presumed belief of a majority of the electorate in
Georgia that homosexual sodomy is immoral and unacceptable" fits in nicely
with the "constitution of the family organization, which is founded in the
divine ordinance" of Bradwell, the "established usages, customs
and traditions of the people, and with a view to the promotion of their
comfort" in Plessy, and the they-all-look-alike argument of Korematsu
in the pantheon of constitutional law abominations.
Origins in English Law
Because the legal system of the United States derived from that of England,
it is critical to review the history of English law on sodomy.
A late thirteenth-century publication, Fleta, a manual of law
published along with a condemnation of dealings with Jews,20
was the first known legal writing in England on sodomy. It recommended death for
sodomites, but apparently never was enforced. Instead, ecclesiastical courts
dealt with the crime.21 Charges of homosexuality
were "part of the general ‘smear’ campaign employed by the Inquisition
against its enemies"22 and the term
"buggery," later to fall within "sodomy," originated from
the word for Bulgaria where targeted heretical groups were known to live.23
The English common law, which recognized sodomy as a crime, incorporated
ecclesiastical law24 as well as other aspects of
ancient English law.
When, in 1533, England finally enacted a secular law against "the
abominable vice of buggery,"25 it was an
exercise in "power politics aimed at the Church by Henry VIII’s
minister Thomas Cromwell"26 as but one of a
set of "anti-clerical measures" adopted during Henry’s matrimonial
difficulties with Catherine of Aragon.27 If there
was any doubt as to buggery’s penalty in England prior to this statute, its
preamble sets the doubt to rest: "Forasmuch as there is not yet sufficient
and condign punishment appointed and limited by the due course of the Laws of
this Realm, for the detestable and abominable Vice of Buggery committed with
mankind or beast:".28 One must presume,
therefore, that Warren Burger’s "millennia of moral teaching"
reaches back to Biblical times, hardly authority for the Bill of Rights.
English jurist Edward Coke, writing about sodomy in his Institutes of the
Laws of England, quoted three writers living at the time of Edward I
(when Fleta was written) who recommended death as its appropriate
punishment, but whose advice had not been taken by Parliament in two-and-a-half
centuries.29 Thus, the "authorities"
upon whom this statute rested had "stated as actual law what they thought
ought to be the law[.]"30
The statute was repealed by Catholic Queen Mary I, again reserving
buggery as an ecclesiastical crime, then was reenacted and made permanent under
Protestant Queen Elizabeth I.31 Its
reenactment was due, according to its preamble, to sodomitical acts being
committed in England "to the high displeasure of Almighty God."32
Thus, its creation, repeal, and reenactment all were due to the particular
religious preference of the monarch occupying the throne at the time.
The American Colonies
The American colonies of England were created beginning more than four
decades after the Elizabethan statute reestablishing "buggery" as a
English common and statute law were not necessarily in force in the colonies
at the time of their establishment. Three of the original 13 colonies—Delaware,
New Jersey, and New York—were not settled by the English and, of the ten that
were, only in Maryland and, possibly, Virginia were English laws presumed to be
in force from the beginning of colonization without local enactment. Death was
the penalty of choice by statute and, in some cases, by usage.33
In both Massachusetts and New Hampshire, early sodomitical activity was not
punished in the colony. In Massachusetts, the offenders were returned to England
for trial "as the crime deserved." Had English law been considered in
force, the offenders could have been tried there. In New Hampshire, apparently
nothing happened to the offenders. The officials "did not think fit to try
However, English laws and customs being most comfortable for settlers from
England, it was they that generally were adopted by the colonies as they grew in
population and felt the need for more social structure.
Virginia had the first written prohibition against sodomy, enacted in 1610.
It is of note that this was repealed after only eight years and no other colony
had a written law against sodomy until Plymouth adopted one in 1636.
(Maryland, founded between those dates, adopted all English laws, including the
sodomy law, by consensus, even though none appeared in any written code).
Plymouth Colony had been founded by Puritans who left England because of
persecution due to their fundamentalist beliefs. These same Puritans put their
beliefs into secular law, showing the same intolerance to other views that
theirs had faced in England. Plymouth’s statute outlawed sodomy based on the
Biblical proscription in the Book of Leviticus.34
Nearly identical laws were adopted by Massachusetts Bay, Connecticut, New
Hampshire, and Rhode Island. This made sodomy a capital offense, just as if the
colonies had followed the English statute.
New Hampshire was part of Massachusetts for more than fifty years and, upon
separation, enacted a Biblical law very similar to that of its parent colony.
Connecticut, several years after founding, adopted the laws of England
formally, then moved to a Biblical statute three years later.
Rhode Island, founded as a religious haven by dissenter Roger Williams,
showed no more tolerance than other colonies. Its capital sodomy law also quoted
New York and New Jersey originally were Dutch colonies that were taken over
by the English. Dutch criminal law had not been carried to the New World,
but there are three known prosecutions for sodomy in what now is New York,
leading to at least two death sentences. Authority for the prosecutions
apparently rested on "natural law," a religiously oriented belief that
there is a higher, immutable law that always overrides the enactments of humans.
Once the colonies became English, a sodomy law similar to that of England became
fact in each.
Pennsylvania’s Quaker influence is shown by the fact that it generally
rejected harsh or sanguinary penalties for crime. Sodomy, a capital offense
elsewhere, was considered deserving of no more than six months in jail. However,
as Quaker influence waned and Pennsylvania grew more populous and heterogenous,
harsh laws based on those of England came to fore there as well.
Delaware originally was settled by Swedes and it had a chaotic legal system
for a number of years. There is no evidence that sodomy was illegal during this
time. It became an English colony as part of Pennsylvania and, when that Quaker
colony adopted a surprisingly lenient sodomy law, it was in force in the
Pennsylvania counties now constituting Delaware. After it broke away in a
dispute, Delaware rejected Pennsylvania laws for its own, and went some 15 years
before outlawing sodomy.
Maryland, upon founding, was given a charter obliquely referring to English
laws. Although the charter did not make specific reference to adoption of
English laws, Maryland was the one colony that, without question, considered all
English laws to be local. There were three sodomy prosecutions from the founding
of Maryland until a sodomy law was enacted 161 years later.
Virginia, in 1607 the first of the colonies to be founded, existed for three
years without a sodomy law. The first settlers in Jamestown all were male and
there is evidence of sexual relations in the colony from its beginning. Three
years later, while under martial law, a military regulation was adopted making
sodomy a capital offense. After eight years, when the colony had stabilized, the
regulation was repealed. The laws of England may have been considered in force
by common consent, as Thomas Jefferson mused, because a man was hanged for
sodomy in 1625 when there was no statute on the subject. Formal adoption of
English law would not occur until 1661.
Farther south, English influence was less pronounced. Both North Carolina and
South Carolina were founded in the 1660s, but neither had any prohibition of
sodomy for almost a half-century after that. When the colonies did act, North
Carolina adopted the laws of England, whereas South Carolina enacted a specific
law against "buggery."
Georgia, not founded until 1732, was carved out of South Carolina, but did not
receive any of South Carolina’s criminal laws. Only a small portion of English
law was considered in force in Georgia, the sodomy law not among it, and
none outlawing sodomy was enacted by the colony (or later state) during the
entire 18th century. The Georgia colonial legislature even went so far as to
criminalize any statement that English law was in force in the colony.
Thus, although 12 of the 13 states had either a sodomy law or the adoption of
either English statutory or common law on the books at the time of the adoption
of the Bill of Rights in 1791, in only one—Maryland—had there been an
unquestioned prohibition throughout its history. In all 12, religious bias was
the catalyst for enactment, since Puritan laws in Massachusetts, Connecticut,
New Hampshire, and Rhode Island quoted Leviticus and the other colonies, in one
form or another, adopted the English proscription, itself progeny of Henry VIII’s
struggle with the Pope. Numerous courts made religious arguments in reference to
The Bill of Rights’s outlawing of government-established religion in the
First Amendment and protection of unenumerated rights in the Ninth Amendment,
the basis for the "right to privacy" in later court decisions, would
seem to auger for the unconstitutionality of these laws. However, in 1986, the
U.S. Supreme Court decided otherwise.
Construction of the Term "Sodomy"
As several courts have stated, "sodomy" is derived from the
Biblical reference to the destruction of the towns of Sodom and Gomorrah.
Originally, sodomy referred only to two sexual acts: anal intercourse between
two men or a man and a woman, or sexual intercourse between a human being and an
infrahuman animal of the opposite sex. Due to the profound ignorance of biology
in which people of medieval times flourished, it was thought possible that
bestiality could lead to the conception of half-human, half-beast offspring.36
Human sodomy was condemned because the devil was thought to engage in such
activity with witches.37 Thus, with the fear of
supernatural forces overwhelming God’s good people, harshness was considered
The appellation "crime against nature" was coined by English jurist
William Blackstone,38 but he failed to delineate
the limits, if any, of the term. Massachusetts had been the first state to
incorporate the "nature" issue into its sodomy law. In 1697, it
adopted a revised law that referred to "the detestable and abominable sin
of buggery with mankind or beast, which is contrary to the very light of
nature[.]" This law clearly reflects taste ("detestable and
abominable") and religion ("sin"). Although the term "crime
against nature" was new, it became popular. It eventually was adopted by
almost all the states.
In England, case and statutory law developed earlier than in the United
States and was, in most cases, used as precedent in the former English colonies.
An English court ruled that anal penetration of a female by a male constituted
buggery.39 The act of anal intercourse between
husband and wife, even with each other’s consent and taking place in private,
also was subject to prosecution.40
Even though English courts were generous in defining who could be prosecuted
under the law, they were restrictive in defining the indictable act. A 1781 case
decided that emission of semen had to occur for an act of sodomy to exist.41
Thus, it became an absolute defense to a charge of sodomy if the inserter
withdrew prior to ejaculation, even if ejaculation occurred. This decision was
controversial, effectively permitting "sodomy interruptus" to go
unpunished.42 This was the only aspect of English
case law on sodomy rejected in the United States, beginning with the Virginia
Supreme Court in 1812. Most other state courts, when presented with the issue,
deferred to Virginia, rather than England.
Expanding the Reach of Sodomy Laws
One rigidly enforced rule on sodomy was that no acts but anal intercourse and
bestiality could constitute it. Cunnilingus, fellatio, tribadism, interfemoral
intercourse, and mutual masturbation were found not to be included in the act.
An early English case ruled that fellatio with a minor, including emission of
semen, "did not constitute the offence of sodomy."43
Fellatio, interfemoral intercourse, and mutual masturbation were not punished by
the English Navy with death, whereas anal intercourse was.44
Case law in the United States followed the English lead, at least through the
19th century. Fellatio came to the attention of the law before cunnilingus
because of differences in sexual behavior. As a rule, males are more likely to
engage in sexual activity in public or semi-public places than are females.
Also, two men living together for a considerable period of time are likely to
attract negative attention, whereas two women living the same way are not. A Gay
male couple in Oregon was convicted of sodomy because a neighbor reported their
relationship to the police.
There are precisely four reported fellatio cases in the United States before
1900, and none involving cunnilingus. In two of those four fellatio cases,
convictions were not permitted to stand because they did not conform to the
historical definition of sodomy. In the other two, fellatio prosecutions were
found allowable only because of broader statutory language. In each of these
latter cases, the interpreting courts let it be known that, without the broader
language, convictions could not be upheld.45
In 1900, statutory wording of sodomy laws permitted, or apparently permitted,
prosecutions for fellatio in 13 states and ten of those had changed their laws
to permit such an interpretation since 1880. In no court before 1900 had
fellatio been found to be "sodomy." By 1920, the number of changes to
sodomy laws to permit prosecution of fellatio doubled to 24, and 11 states had
court decisions that the term "crime against nature" or
"sodomy," standing alone, covered acts of fellatio. In the first such
case, in 1904, the Georgia Supreme Court said that fellatio had been found not
to be indictable in England only because it had not "prevailed" then.
Today, and for several decades, fellatio is mentioned far more commonly in
reported sodomy cases than is anal intercourse, the reverse of the situation the
Georgia Supreme Court found. The likely reason is medical. Male circumcision
prior to the 20th century was rare. Uncircumcised penises retain sweat and
carcinogenic smegma as well as harboring disease-causing microbes. The prevalent
poor hygienic practices of the times aggravated the condition. Thus, placing one’s
nose near such a dirty organ must have been so unpalatable that anal sex was the
sexual activity of choice. As hygienic practices improved and as the rate of
circumcision climbed steadily during the 20th century,46
the ratio of anal to oral sex changed dramatically.
In Plymouth Colony, two women were convicted of unspecified "leude
behavior each with [the] other upon a bed," but the penalty was far
different from the death sentence a man could expect. One was required to make
public acknowledgement of her "unchast [sic] behavior." The
other received no penalty. In Massachusetts Bay Colony a female servant
was flogged, partly because of "unseemly practices betwixt her and another
The only statute specifically addressing sexual relations between women was
one of New Haven Colony, adopted in 1656, and mandating a sentence of death for
violations. There is no known prosecution under this law, however.
Sex between women was viewed as an oxymoron. In a case from Scotland, dating
to 1811, the House of Lords decided, regarding a charge of cunnilingus between
two women, "the crime here alleged has no existence."47
Some United States courts ruled that, without a penis, there could be no
sodomy.48 This rule precluded criminal penalties
under extant laws for Lesbians by making them applicable only to two men or a
man and a woman. No published cunnilingus case appeared until 1913, nearly three
decades after the first reported fellatio case. (And none involving two women
would appear for yet another quarter century). Interestingly, the first state to
decide whether cunnilingus constituted sodomy was Illinois, the same state that
had been the first to sustain a fellatio conviction. Having used the
"sodomy or other crime against nature" [emphasis added]
reference in the state’s civil rights disability law to cover fellatio, the
Court erected a double standard by holding that cunnilingus did not
constitute an "other" crime against nature.
Later that same year, the Missouri Supreme Court refused to permit a
cunnilingus conviction to stand even though the state’s sodomy law had been
revised expressly to permit conviction for use of the mouth. The Court could not
conceive of sexual activity without a penis and said that sexual intercourse
could not be accomplished with the mouth.
A year later, the Louisiana Supreme Court ruled that fellatio violated the
state’s expanded sodomy law, but that cunnilingus only "perhaps"
The legislature of neither Illinois nor Missouri changed the sodomy law of
the state to eliminate this double standard. The laws of Connecticut and Wyoming
specifically covered only acts with a male organ, and that discrimination
remained until the laws were repealed. The situation was similar in Arizona and
Wisconsin, except that eventually those laws were broadened. South Carolina
continues to use the term "buggery," a word of limited scope that
precludes prosecution of two women for any sexual activity. After an Ohio court
ruled that cunnilingus could not be prosecuted under that state’s unusually
worded sodomy law, not only did the legislature fail to overturn the decision by
changing the law, but there never even was a bill introduced into the
legislature to try to change it. Iowa, Nebraska, and Texas modeled their
expanded law on that of Ohio, leading to a similar discriminatory application in
The first cunnilingus conviction to stand was in 1917 in a case from North
Dakota. In that state, the sodomy law had been expanded to cover any person who
"carnally knows" another person "by or with the mouth" and
this was the only reason the North Dakota Supreme Court could uphold the
In 1923, the Indiana Supreme Court ruled that cunnilingus performed on a
minor could be prosecuted under the state’s sodomy law only because of the law’s
provision outlawing masturbation of a person under age 21. The Court would not
agree that such an act constituted sodomy.
In 1921, the English Parliament defeated a measure to outlaw "gross
indecency" between females on the ground that hardly any women knew of such
Lesbians came into vogue, so to speak, in the 1920s. A series of novels and
plays brought Lesbianism into general public consciousness, filling in the lack
of knowledge the House of Lords believed to exist.50
The Lesbian-themed play The Captive led to New York passing a law banning
"sex perversion" as a theme for plays. Radclyffe Hall’s classic book
The Well of Loneliness was prosecuted for obscenity both in England
(successfully) and in New York (unsuccessfully).
In late 1927, after the publicity over The Captive, but before The
Well of Loneliness was published, the Wisconsin Supreme Court reluctantly
overturned a sodomy conviction for cunnilingus. The Court felt constrained to
reach its decision solely because the state’s sodomy law clearly limited
itself to oral manipulation of the "organ of any male person."
However, the next court to get a cunnilingus case decided differently. In
1935, the Oklahoma Supreme Court became the first in the nation to rule that
cunnilingus was a "crime against nature." The Court gave absolutely no
analysis for its conclusion. What was "unknown" to women in 1921
became dangerous knowledge by 1935 that had to be outlawed. Courts in Florida,
Alabama, and Maine followed Oklahoma’s lead in the next 15 years. Before
widespread public knowledge of Lesbianism, cunnilingus never was considered a
species of the "crime against nature." After that knowledge was
spread, it became consensus that cunnilingus was included in that historically
Michigan added a new "gross indecency" section to its criminal code
that covered sexual activity between two women in 1939, just four months after
the Georgia Supreme Court ruled that an act of cunnilingus between two women did
not constitute sodomy under that state’s unusually worded law.
Two states—Indiana and Wyoming—recognized, through statutory change, the
masturbation of a minor to be sodomy, but not of an adult. In fact, an Indiana
court overturned the sodomy conviction of adults for masturbation of each other.
Other states, such as Maryland and Oregon, used broadly worded sodomy laws
that covered undefined terms such as "perverted practices" or
"sexual perversity." Under this wording, Oregon courts held both
mutual masturbation and urination to be coverable. Michigan opted for the term
"gross indecency," which the state’s courts interpreted to include
manipulation of another’s genitals.
Interfemoral Intercourse and Tribadism
In Plymouth Colony during colonial times, two men who frequently engaged in
interfemoral intercourse were convicted of a lesser offense, the lack of
penetration making a sodomy prosecution impossible.
The solitary reported case on interfemoral intercourse comes from Georgia and
dates from 1938. The Georgia Court of Appeals ruled that the act did not
constitute sodomy, since there was no penetration.
There are no reported cases in the United States concerning the applicability
of sodomy laws to tribadism, but there is little doubt that its failure to
conform to the historical definition of sodomy would render it not subject to
The coming out of a few people in the latter half of the 19th century, and
the increasing reference to "feelings" or "attraction" for
the same sex by individuals in reported medical literature, coupled with
frequent, but understandable, references to loneliness or depression by these
people in that unenlightened era, led medical science to conclude, based on
flimsy evidence and small samples, that same-sex attraction was a form of mental
illness, an "erotomania." Some doctors chose to criticize criminal
laws covering consensual sodomitical acts, but no legislative body heeded their
advice. These doctors argued that mental illness should not be criminalized,
but, instead, "treated."51
In 1915, a California appellate judge was the first known to ponder
homosexuality in an opinion. The judge believed that expert opinions were needed
about sexual attractions, because "the normal man" would be unable to
determine "the neurotic or orgastic effect of such indecent acts."
In 1917, when the North Dakota Supreme Court sustained a sodomy conviction
for cunnilingus, it chose not to discuss the issue at length. Instead, it
referred readers of its short opinion to Krafft-Ebing’s Psychopathia
Sexualis52 to learn more.
In 1921, the Florida Supreme Court referred to men convicted of sodomy as
"creatures" who "are called human beings."
By 1933, the idea of people engaging in sodomy being "abnormal" was
so enmeshed in the minds of the public that a Pennsylvania appellate court noted
that a man accused of sodomy asked to strip naked in the courtroom to prove that
he was "normal."
The first attempt by legislators to deal with the mental health issue
concerned sexual sterilization. It generally was assumed, without evidence, that
insanity, epilepsy, mental retardation, and "sexual perversion" were
hereditary. By sterilizing those with any of these traits, the thinking went,
these traits would be eliminated from society.53
Twenty-three jurisdictions never enacted sterilization laws,54
but 33 did. Indiana pioneered a law in 1907 to authorize sterilization of
"habitual criminals," which could include those convicted multiple
times of consensual sodomy.
These sterilization laws fell into four categories.
The first is what might be called "therapeutic" laws. Under these
statutes, generally only the insane or mentally retarded were subjected to
sterilization. They clearly were without applicability to sodomitical activity.
Fifteen states fell into this category.55
The second category might be called the "undesirable" laws. These
statutes had broader coverage in that any person thought to have unspecified
characteristics that might be improved upon by sterilization could be subjected
to the operation. Four states were in this category.56
The third were the "criminal" laws. Persons convicted of any crime,
certain crimes, or any crime multiple times, were permitted to be sterilized.
There were seven states in this category.57
The fourth were the "pervert" laws. In these jurisdictions, seven
in total, persons could be sterilized if they were "moral degenerates"
or "sexual perverts," sometimes even if they committed no crime.58
Many of these laws fell when various courts ruled them unconstitutional. In
fact, in the first 15 years from Indiana’s pioneering law, only one of eight
challenged sterilization laws—that of Washington—was upheld by a court. The
others were struck down either on the ground of lack of due process of law—not
permitting those to be sterilized a hearing and a right to cross-examine
witnesses against them—(although these laws were reenacted with due process
guarantees)59 or on the broader ground of
The liberty at issue was the right to procreate, reiterating the Victorian
notion of sexuality. This same right to procreate would be raised by the United
States Supreme Court when, in 1942, it struck down Oklahoma’s sterilization
law that covered only criminals. This decision obliterated all of the
"criminal" laws, but the "undesirable" and
"pervert" laws were not affected by the decision.
Thus, frustrated by the courts in their effort to control such deviant
criminal behavior as sodomy with sterilization laws, states turned increasingly
to a method the courts generally approved—incarceration. Following an increase
in crime, including sexual crimes, during the Great Depression,61
Michigan pioneered what generally was called a "psychopathic offender"
or "sexual psychopath" law in 1935. Although these laws contained
variations, generally they permitted states to keep in institutions for purposes
of "treatment" those convicted of sexual crimes. In some cases, those
sent to institutions need not have committed any crime, but merely be
"sexually abnormal." Massachusetts, for example, permitted any citizen
to report another for abnormal sexual tendencies and have that person committed
for treatment. Since these laws required institutions for treatment as well as
staff, their cost initially inhibited many states from enacting them, especially
in the years just following the Great Depression. There were only five such laws
passed before World War II, and only one during it.62
Several things led to their multiplication. First, the Minnesota law was
challenged rapidly after its enactment and, just 10 months after passage, the
United States Supreme Court unanimously upheld its constitutionality.63
Second, mobilization for the Second World War improved the economies of most
states, permitting more of them to afford such laws. Third, and most important,
following the War, the number of sex crimes increased dramatically, leading to
hysteria in a number of places in the country and demands from a frightened
public for action. Fourth, the national mood influenced by McCarthyism and his
crusade against both communism and homosexuality created a receptive atmosphere.
In the 12 years 1935-1946, only six such laws were enacted in the country, four
of them in the Midwest. However, in the next 12 years, that number quintupled to
30 and included all geographic regions.64
Unfortunately, thought rarely went into these laws and they simply did not
work. States, even though improved in finances following the War, were unwilling
to spend money on sex criminals, preferring to warehouse them. The laws
generally were enacted only following spectacular sex crimes or in copy-cat
fashion of other states, in effect promising more than they could deliver to
assuage a frightened public. Also, no one was quite sure if there was such a
thing as a "sexual psychopath." The medical community was divided over
terminology. Despite these problems, legislators continued to enact and expand
psychopath laws, reacting to constituent pressure for a quick solution to the
problem of sex crimes.65
Whatever promise may have been inherent in the heady, early days of these
laws vanished. The McCarthy era, continuing shocking sex crimes, and the
emergence of an identifiable Gay community contributed to increasing harshness.
In the early 1950s, while Joseph McCarthy still was riding high, both Ohio and
Michigan expanded their laws to cover misdemeanor sex offenses. Ohio went so far
as to cover any misdemeanor "in which abnormal sexual tendencies are
displayed." Conceivably, this could cover jaywalking after leaving a Gay
bar. Some of these laws led to Kafkaesque nightmares for those processed under
The laws were dismal failures. Analyses of the operation of the laws of
Nebraska,71 New Hampshire,72
and Wisconsin73 showed that the laws were used,
not to treat violent or predatory individuals, but rather to warehouse people
not even remotely dangerous to others, and who merely violated a moral code.
The Minnesota law had been upheld by the United States Supreme Court in 1940,
largely based on speculation that the state would use the law’s procedures
wisely and with great fairness. By 1967, after sometimes draconian changes were
made in these laws, the unanimous vote to uphold the Minnesota law became a
unanimous vote by the same court to strike down the Colorado law. Pennsylvania’s
law soon after also was invalidated by a court. In 1968, Vermont and Michigan,
two of the pioneer states in enacting psychopath laws, became the first to
repeal them. Today, all but one state either have repealed the
laws, limited their applicability to sexual activity with children, or had them
rendered innocuous by repealing consensual sodomy laws, or by having the
triggering sodomy laws invalidated by a court.74
The concept of a privacy right for consensual sexual activity actually is of
recent vintage. The Washington Constitution of 1889 and that of Arizona from
1910 contained identical meaningless rights of privacy: "No person shall be
disturbed in his private affairs, or his home invaded, without authority of
law." Thus, the right to privacy in a citizen’s house must bow to any
legislative curiosity about what goes on in the house.
Early claims to such a right in sodomy cases met with uniform rejection by
courts. In 1923, two New Jersey men arrested under the state’s "private
lewdness" law for consensual sexual relations in one’s home claimed that
their activity, occurring in private, did not "debauch the morals and
manners of the people." The New Jersey Supreme Court disagreed, saying that
acts which would debauch the public morals were illegal whether committed in
public or private. Of course, using this logic, marital intercourse would be
illegal in private since, if it occurred in public, it would debauch the public
morals. In 1926, the Wisconsin Supreme Court rejected the claim of a woman
arrested for sodomy with a man that police had no right to enter her home for
such a purpose. The Court said that, if it agreed with her, it "would
seriously embarrass the enforcement of law, and license the defendant and her
kind to continue their abominable practices under the protection of the
The first explicit privacy claim arose in 1944 in Arizona in a case in which
a man was prosecuted for consensual fellatio with another man in his own home.
He protested that "the privacy of his home" had been invaded. The
argument was disposed of by the Arizona Supreme Court by being ignored. Numerous
other shocking examples of privacy violations were ignored by appellate courts
in their rush to uphold sodomy convictions.75 In
none of them was a privacy claim raised.
Married couples were not immune. In 1948, the California Court of Appeals
sustained the oral copulation conviction of a married couple after photographs
of the couple’s consensual activity in their own home fell into the hands of
police. The couple never raised a privacy issue and the California Supreme Court
refused to review their case.
The issue of privacy for consenting adults came into play with the publicity
received by Alfred Kinsey’s pioneering research into human sexual activity. In
two volumes published in 194876 and 1953,77
Kinsey shattered prevalent myths about human sexual behavior. Most importantly,
he revealed that sexual activity and physical attraction between persons of the
same sex was far more common than thought. His first volume aroused "new
popular interest in the status of our sex law"78
as well as much controversy.
Just a year following the first Kinsey study, the Utah Supreme Court became
the first to address some of the concerns Kinsey and others raised about human
sexual behavior. The "wisdom of declaring their [homosexuals’] conduct to
be criminal may be seriously questioned." Less than a decade later, the
Hawaii Supreme Court noted that there had been "much" criticism of
"making a crime out of homosexual or other unnatural sexual
relations," but it was a matter for a legislature, not a court, to address.
In opposition to the Kinsey side of the question was Senator Joseph McCarthy
and his crusade against communism and homosexuality in the federal government.79
Legislative reaction, reflecting the conflict between Kinsey and McCarthy, was
In the seven years after the first Kinsey work was published, five states—Arkansas,
Georgia, Nevada, New Jersey, and New York—lowered their maximum or minimum
penalty for sodomy, with New York becoming the first to change its status from a
felony to a misdemeanor. The preamble to Arkansas’s law of 1955 lowering the
minimum penalty from five years to one noted the difficulty the state was having
in securing convictions for (presumably consensual) sodomy with the five-year
minimum. Massachusetts and South Dakota toned down their extreme psychopath
laws. California eliminated "sexual perverts" from the list of those
subject to the state’s sterilization law.
On the other hand, some laws became more harsh. Congress outlawed sodomy in
the District of Columbia (finding the common-law crime provision insufficient),
Hawaii enacted a disorderly conduct provision that covered men soliciting other
men, California pioneered a sex offender registration law including consensual
sodomy, Wisconsin outlawed newspaper coverage of crimes of sodomy, and Michigan
and Ohio both expanded their psychopath laws to cover misdemeanors, while
Washington eliminated the impressive civil liberties provisions from its
psychopath law. Also during this time, Arizona, California, and Wyoming raised
their sodomy penalties, with California now allowing a sentence of life
imprisonment for consensual activity.
Increasingly, however, the focus on sex crimes changed from preserving an
ideal of chastity to protection of children and adults from assaultive and
manipulative sexual activity. This may have been a "lesser evil"
situation. Since assaults seemed to be more common, the public and prosecutors
were more amenable to focus on them, especially considering the devastating
information revealed by studying the results of psychopathic offender laws.
Psychopath laws enacted after the McCarthy era tended to place their focus on
sexual activity with minors, especially the pre-pubertal.80
After the public had some time to consider the Kinsey statistics, the
American Law Institute published sections of a Model Penal Code in 1955. The
sexual offenses provisions advocated repeal of consensual sodomy laws, but
retained and expanded protections for children and for adults from unwanted
Contradictory strains in society ran through the 1950s and 1960s. On the one
hand, the Kinsey studies and the American Law Institute’s Model Penal Code
pushed toward a libertarian attitude on sex. McCarthy had been discredited and
censured by his colleagues. On the other hand, legislative bodies moved slowly,
unwilling to move in a direction that might be found controversial by
constituents still in the grip of the remnants of McCarthyism and yet adjusting
to Kinsey’s startling findings.
For example, it just so happened that Wisconsin was debating a comprehensive
criminal code revision in 1955 when the Model Penal Code was recommended. Rather
than follow the advice of the Code, the Wisconsin legislature retained sodomy as
a felony and expanded its coverage to include cunnilingus.82
The next opportunity for reform came in 1957 when the Virgin Islands adopted
a new criminal code. As with Wisconsin, the Virgin Islands refused to move the
way the American Law Institute recommended. The felony sodomy law was retained
and broadened to cover oral sex, something it previously had not recognized.
In the 1960s, the Code’s advice also was rejected by New Mexico, New York,
Minnesota, Georgia, and Kansas when those states adopted new criminal codes.
Although the non-sexual provisions of the Code largely were followed, as were
the sexual assault provisions, allowing freedom to consenting adults still was
controversial. Fifteen years after publication of the Model Penal Code, only
Illinois and Connecticut had followed the recommendation to eliminate consensual
sodomy as a crime. A poll taken that same year, 1970, showed that nearly 86% of
the U.S. population believed that same-sex sexual activity, even between people
in a loving relationship, was "sometimes," "almost always,"
or "always" wrong.83 It is small wonder
the legislative bodies tread lightly.
Because vestiges of Biblical, Puritan, and Victorian morality obviously
remained, privacy invasions in sexual matters could be chipped away only slowly.
The first to receive such rights, although not without limitations, would be the
least morally controversial to society—married couples.
The earliest right of privacy for married couples would be found by an Ohio
court in a divorce case. In 1957, a divorce was denied a woman seeking to end
her marriage to a man who wanted both fellatio and cunnilingus to be part of
their sexual intimacy. The court said, in dictum, that "the private moral
relationship between husband and wife...(as to either cunnilingus or fellation [sic])...rests
entirely in the minds of the two of them."
A clearly enunciated, but limited, right to privacy in sexual matters would
not be made by the United States Supreme Court until 1965 in its landmark
decision, Griswold v. Connecticut.84 The
case concerned a law of Connecticut, similar to those of other states, that
forbade dissemination of birth control devices. Of greater interest than Justice
Douglas’s superficial opinion for the Court striking down the law is the far
longer concurring opinion of Justice Arthur Goldberg85
that comprised the first in-depth analysis of the Ninth Amendment. After citing
the words of James Madison, its author, in explaining its purpose of
guaranteeing rights not specifically mentioned elsewhere in the Constitution,86
Goldberg believed that the test as to whether some activity was protected by the
Amendment was the
traditions and [collective] conscience of our people" to determine
whether a principle is "so rooted [there]...as to be ranked as
fundamental." [Quoting Snyder v. Massachusetts, 291 U.S. 97, at
He added that the Court’s decision should not be interpreted as interfering
with "a State’s proper regulation of sexual promiscuity or
misconduct."88 He then quoted from Justice
Harlan’s dissent in a previous contraception case, that the Court had ducked
on the issue of standing, that "[a]dultery, homosexuality, and the
like are sexual intimacies which the State forbids[.]" [Emphasis added].89
In Puritan beliefs, even sexual activity between married couples was evil,
although an evil necessary to propagate the race. In "moral" families,
sexual relations between spouses were limited to reproduction efforts at a
frequency of perhaps once a month. A popular movement in the late 19th century
labeled as a prostitute any woman who had sex with her husband for any other
reason.90 During his divorce trial in 1927, actor
Charlie Chaplin was confronted with a charge that oral sex was part of his
marriage to Lita Grey, and that was considered sufficient reason to divorce.91
The same year, the Utah Supreme Court was faced with a case in which
disinherited children of a decedent argued that the fellatio and cunnilingus in
which he engaged in his marriage rendered him insane.92
So, it should be no surprise that marital exemption from sodomy laws is a new
concept. Convictions for consensual activity between married spouses in their
own home have been affirmed93 and other courts
have rejected marital exemption both before94 and
after95 the Griswold decision. However,
since Griswold, a number of courts have decided that the Supreme Court’s
decision meant that the state’s sodomy law could not be applied
constitutionally to married couples.96
The first statutory exemption for married couples occurred in New York when
it adopted a new criminal code just six weeks after Griswold was decided.
Rather than start a marital exemption stampede, only four states since have
followed its lead.97
Seven years after Griswold, a plurality of the Court decided in Eisenstadt
v. Baird98 that the right of privacy
concerning use of contraceptive devices extended to the unmarried as well as the
married. This highly overrated case actually decided very little. First, as
stated above, the case was decided by a plurality, rather than a majority of the
Court. Only seven members sat for the case and, although six of the seven voted
to overturn Baird’s conviction, only four did so on constitutional grounds.
Second, the plurality opinion of Justice Brennan limited itself to the sexual
privacy of deciding "whether to bear or beget a child."99
Although the Supreme Court in Hardwick said, regarding the dismissal
of the heterosexual co-plaintiffs from the case, "We express no opinion on
the constitutionality of the Georgia statute as applied to other acts of
sodomy,"100 it has allowed prosecution of
heterosexual activity. In 1975, in Rose v. Locke,101
after both Griswold and Eisenstadt, the Court voted 5-3 to uphold
Tennessee’s sodomy law in a case challenging its applicability to heterosexual
cunnilingus. On other occasions, the Court let stand lower court rulings that
seemed to exempt, in one case married couples and, in the other, consenting
heterosexuals from sodomy laws,102 and on other
occasions refused to review a lower court decision deciding the opposite.103
Several courts expressly have rejected the contention that heterosexual
activity was not covered by sodomy laws both before104
and after105 Eisenstadt. Other courts
have upheld convictions for consensual heterosexual activity both before106
and after107 Eisenstadt.
Taking Griswold and Eisenstadt together, some courts have
decided that consensual heterosexual sodomy is constitutionally protected,
whether the parties are married or unmarried.108
Some states also revised their sodomy laws so that they became applicable only
to activity between people of the same sex. Kansas began this unfortunate trend
in 1969. Seven other jurisdictions followed suit.109
These jurisdictions found a creative way to rationalize heterosexual desire for
long-banned activity by making it seem normal and acceptable, as if society
always had accepted heterosexual sodomy. Some courts also have rejected
challenges to facially neutral laws against discriminatory enforcement claims.110
In none of the cases was any analysis given by the court.
This certainly does not square with history. The eighteenth-century Wiseman
case from England found that heterosexual sodomy was indictable despite the
wording of the English law as referring only to activity between males. Justice
Fortesque, trying the case, was
exceeding sorry, that such a gross Offence should escape without any
Punishment in England; when it is a Crime punishable with Death and
burning at a Stake, all over the World besides.111
Thus, even though the statute did not contemplate opposite-sex sodomy, that
act was of such a heinous nature that it should be prosecuted as well. In fact, heterosexual
sodomy was the greater evil. A male committing such an act with a female instead
of another male "only makes it more inexcusable." [Emphasis
added].112 Sodomy with a woman
seems worse that than [sic] of a Man or a Beast; for it seems a
more direct Affront to the Author of Nature, and a more insolent expression
of Contempt of his Wisdom, condemning the Provision made by him, and defying
both it and him.113
In 1916, when Virginia amended its sodomy law to permit prosecutions for oral
sex, it, for some reason, limited that portion of the law to people of the same
sex. When the Virginia Supreme Court got a heterosexual oral sex case before it,
it had no choice but to reverse the conviction owing to the clear statutory
limitation. It lamented that it couldn’t uphold the conviction and urged the
legislature to expand the law to cover opposite-sex activity. This the
legislature did speedily.
However, by 1990, the Maryland Court of Appeals could erase its own case law
that heterosexual activity and married couples were covered by the state’s
sodomy and "unnatural and perverted practices" laws and say that they
not only did not cover either type of activity, but never had. The Court,
wanting such an exemption, ignored its own previous decisions to the contrary
and legislated one from the bench.
Oddly, sexual activity has been granted one location for constitutionally
protected performance—the public restroom. Beginning with a decision by the
California Supreme Court in 1962, and continuing with numerous others throughout
the United States, enclosed or, in some states, enclosed and locked
restroom stalls are places where consensual sodomy is sacrosanct from
prosecution.114 In other cases, parked cars have
been held to be private places,115 as have a Gay
bath house,116 and shrubbery.117
Because of the sexual segregation of restrooms and bath houses, these decisions
effectively permit only homosexual activity the standing to claim a right
The approach of granting "privacy" rights to quasi-public places,
but denying them to a person’s own home escapes rational analysis. In effect,
the courts are saying that a person’s home, a place granted clear protection
from unreasonable searches and seizures by the Fourth Amendment, has enjoyed a
long history of being available to police and prosecutors for inspection of
consensual sexual activity occurring therein, but that a public restroom stall,
parked car, or shrubbery was contemplated by the writers of the Constitution as
a hallowed place where police dare not tread. Home was where both Michael Hardwick and John
Lawrence were arrested.
One can conclude that judges and legislators are filled with as many
emotional conflicts concerning human sexuality as is the public at-large. Since
1970, eight states118 have adopted specific
privacy rights amendments to their constitutions. Even this doesn’t
necessarily do the trick. The Hawaii Supreme Court decided that, privacy
amendment or no, consensual sodomy remained unprotected by the state
constitution and, even though the legislature had repealed the sodomy law, its
reenactment would not be barred by an explicit right to privacy.119
The Louisiana Supreme Court also rejected the claim that the state’s explicit
right to privacy protects sexual privacy. The Court went so far as to suggest
that voters adopting the privacy amendment actually were voting for the
"liberty" of protecting the right of the legislature to outlaw
consensual sexual activity.120 The Florida
Supreme Court has found that the state’s privacy amendment doesn’t prevent
the government from outlawing "obscene" materials.121
In effect, the courts are too comfortable with regulating private morals to
allow privacy provisions in constitutions to interfere with them.
Granting privacy rights to activity occurring in a home adds permanence to
that activity, enmeshing it with affection. Sexual activity in a restroom stall,
on the other hand, deals only with fleeting pleasure, something that can be
denied once it is finished. Permitting, for example, men to engage in sodomy in
a restroom stall and then go home to their wives and closeted existence helps to
deny the reality of the reason for that sodomitical act. However, allowing two
men or two women voluntarily to engage in such activity in a home that the two
of them have established and in which they hold themselves out as an
affectionate couple challenges the insecure.
With the so-called sexual liberation of the last few decades, the focus of
insecurity about sexuality increasingly has been shifted toward same-sex
activity. After all, heterosexuals still can claim that non-procreative sexual
activity doesn’t preclude them from procreating when they choose, something
that inherently is impossible for same-sex activity, regardless of the level of
affection that accompanies it. As far as heterosexuality is concerned, the
immutable conflict between the sexes, fear of having "abnormal" sexual
desires, and anxieties about sexual performance and body image all can be
subverted intermittently by a belief that sexual activity may, after all, lead
Moreover, medical technology existing since 1978 with the birth of the first
test-tube baby has made any claim to heterosexuality’s necessity invalid.
Sexual activity no longer is needed for reproduction. The law, in order, like
the traveler, to be ready for the morrow, must recognize that fact.
Our forefathers’ sensibilities were grounded in ignorance and religious
prejudice. Paying homage to barbarian treatment of natural sexual instincts that
all persons possess reflects continuing insecurity with ourselves.
Our own sensibilities will be handed to the next generation. Consider the
hangings, the floggings, the long years of imprisonment, the humiliation, the
suicides, for which our society has been responsible here in the United States
of America, all because of the expression of physical affection between two
consenting persons. It was a form of madness that was the sensibilities of our
appears that the U.S. Supreme Court may have done some deeper thinking on these
subjects in the years after the Hardwick
case was decided, or may have had some of these issues pointed out to them.
Certainly, the individual Justices have been affected by having openly Gay and
Lesbian clerks in recent years.122
After the Hardwick case, the Court
handed down some respectful decisions concerning the rights of sexual
decision, however, was more respectful of the Gay and Lesbian citizenry of the
United States than was that in 2003 of Lawrence
et al. v. Texas.124The
Court confessed error in the Hardwick
case, noting that it was in violation of the Court’s precedents on privacy at
the time it was decided and chided the majority in that case for its
conclusions, stating that the “historical premises are not without doubt and,
at the very least, are overstated.”125
In this case, the Court no longer merely used respectful language toward the Gay
and Lesbian community. It stated that the Constitution demanded such respect by
petitioners are entitled to respect for their private lives. The State
cannot demean their existence or control their destiny by making their
private sexual conduct a crime. Their right to liberty under the Due Process
Clause gives them the full right to engage in their conduct without
intervention of the government.126
sea change in the law occurred once the Supreme Court stepped out of the past.
work is divided into five time eras. The first, The Colonial Period, covers the
years 1607-1776, from the founding of Jamestown Colony to the Declaration of
Independence. This was the time of English law and peak Puritan influence.
second, The Post-Revolution Period, covers the years 1776-1873, from the
Declaration of Independence to a year in Victorian times that represented both
the repeal of the last capital sodomy law and the enactment of the Comstock Act,
the notorious law that put the government firmly in the business of censorship
of “obscene” materials and that ushered in an era of repressive morality in
the United States. During this period, many of the shackles of English law were
thrown off and the United States developed its “Americanism.”
third, The Victorian Morality Period, covers the years 1873-1948, from the
Comstock Act to the publication of the first Kinsey Report. During this time was
the peak of concern with “morality,” even though the period lasted long
after Queen Victoria and Anthony Comstock were cold in their graves.
fourth, The Kinsey Period, covers the years 1948-1986, from the first
publication of Alfred Kinsey’s pioneering work on human sexuality to the
decision of the United States Supreme Court in Bowers v. Hardwick. During
this era, reform of sex laws was advanced on numerous fronts, leading to the
repeal or court invalidation of a number of sodomy laws, not to mention a
revolution in attitudes of many in society.
fifth, The Post-Hardwick Period, covers the years from 1986 to the present from
the date of the Hardwick decision that signaled a new era in sex law
reform. The Court, dominated by Nixon and Reagan appointees, stated that the
Constitution remained fixed in the Colonial era, thus throwing the impetus for
reform to state legislatures and state courts exclusively. As a result, four
more state laws were repealed by legislatures and seven others were struck down
on broad constitutional grounds, all but one of them using the respective state
constitution. These decisions generally were outspokenly critical of Hardwick.
U.S. Supreme Court, having undergone a two-thirds turnover in membership within
eight years of the Hardwick case,
reversed itself in 2003 with Lawrence et
al. v. Texas and struck down the 16 remaining sodomy laws in the nation.127
took until the twenty-first century for the legal nightmare begun in the
colonies in the seventeenth century to be vanquished with an awakening from the
gentle hand of liberty.
| Alabama | Alaska |
American Samoa |
Arkansas | Arizona | California | Colorado | Connecticut |
Delaware | District of Columbia | Florida |
Guam | Hawaii |
Idaho | Illinois | Indiana | Iowa | Kansas | Kentucky |
Maine | Massachusetts
Maryland | Michigan | Minnesota | Mississippi |
Missouri | Montana |
New Hampshire | New Jersey | New Mexico |
New York | Nevada |
North Carolina |
North Dakota | Northern Mariana Islands |
Oklahoma | Oregon | Pennsylvania |
Puerto Rico | Rhode Island | South Dakota |
South Carolina | Tennessee |
Texas | Utah |
Vermont | Virginia | Virgin Islands |
West Virginia | Wisconsin |
Common Law | Federal
The applicability of common‑law reception statutes to consensual
sodomy has been obviated by the 2003 decision of the U.S. Supreme Court in
Lawrence et al. v. Texas. Prior
to Lawrence, consensual anal sex
could have remained indictable in these jurisdictions, since anal sex
constituted a crime under the common law. Since statutory consensual
sodomy laws have invalidated, it is not possible for a state to use a
common-law provision to prosecute consensual sodomy, either.
Fourteen jurisdictions still recognize common-law crimes, which can
criminalize other kinds of erotic behavior besides sodomy. They are the
District of Columbia, Florida, Idaho, Maryland, Michigan, Mississippi, New
Mexico, North Carolina, Rhode Island, South Carolina, Vermont, Virginia,
Washington, and West Virginia.
1 Bowers v. Hardwick, 478 U.S. 186,
2 Id. at 192.
4 David G. Savage, Turning Right,
(New York:John Wiley & Sons, 1992), page 93.
5 Hardwick, at 196.
6 Griswold et al. v. Connecticut,
381 U.S. 479 (1965).
7 Loving et ux. v. Virginia, 388
U.S. 1 (1967).
8 Roe v. Wade, 410 U.S. 113 (1973).
9 Eisenstadt v. Baird, 405 U.S.
438, at 467.
10 Barnes v. Glen Theatre, Inc.
501 U.S. 560, at 590.
12 Id. at 197.
13 16 Wall. 130, decided Apr. 19, 1873.
14 Id. at 141-142.
15 163 U.S. 537, decided May 18, 1896.
16 Id. at 550.
17 323 U.S. 214, decided Dec. 18, 1944.
18 Id. at 218-219.
19 "The Pentagon’s argument was
that if the Japanese army landed in areas thickly populated by Americans
of Japanese ancestry, the opportunity for sabotage and confusion would be
great. By doffing their uniforms they would be indistinguishable from the
other thousands of people of like color and stature." William O.
Douglas, The Court Years 1939-1975: The Autobiography of William O.
Douglas, (New York:Random House, 1980), page 279. Justice Hugo Black
hid his prejudices from his opinion, but later was quoted: "People
were rightfully fearful of the Japanese. They all look alike to a person
not a Jap." Peter Irons, Brennan v. Rehnquist, (New
York:Alfred A. Knopf, 1994), pages 83-86. It is curious to note that, at
the time of the Korematsu decision, the Supreme Court had a 5-4
liberal majority. Four of the five liberals voted to uphold the racially
20 Michael Goodich, "Sodomy in
Medieval Secular Law," Journal of Homosexuality, 1:295-302, at
297 (1976). A thorough analysis of the development of secular sodomy laws
from religious fervor and racial animus is in Byrne Fone, Homophobia: A
History, (New York:Metropolitan Books, 2000), pages 133-159.
21 Richard Davenport-Hines, Sex, Death
and Punishment: Attitudes to sex and sexuality in Britain since the
Renaissance, (London:Collins, 1990), page 59.
22 H. Montgomery Hyde, The Love That
Dare Not Speak Its Name: A Candid History of Homosexuality in Britain,
(Boston:Little, Brown & Co., 1970), page 37.
23 Id. at 36.
24 LeBarron v. LeBarron, 35 Vt.
365, at 367 (1862). An English case from the colonial era stated that
"Christianity is part of the law[.]" Rex v. Curl, 2 Stra.
25 25 Henry VIII c. 6.
26 Hyde, at 5.
27 Id. at 39.
29 Another jurist, conservative James
Stephen, said, "A more disorderly mind than Coke’s and one less
gifted with the power of analysing [sic] common words it would be
impossible to find." James Stephen, A History of the Criminal Law
of England, (London, 1883), Vol. II, p. 206.
30 Hyde, at 38.
31 5 Eliz. c. 17 (1562).
32 Hyde, at 40.
were a total of five documented death sentences in the colonies for
same‑sex sodomy during the 1600s, two each in Connecticut and New
York, and one in Virginia. In addition, there was another prosecution in
New York in which the records do not show disposition of the case. There
were a total of 162 known death sentences carried out in all the colonies
during the century, making the five known for same-sex sodomy about
3% of the total. See Raymond Paternoster, Capital Punishment in America
(New York: Lexington Books, 1991), page 4. In addition, according to Executions
in the U.S. 1608-1987.: The Espy File, there were 10 known
executions for sodomy, either buggery, bestiality, or type unknown, in the
colonies between 1625 and 1674 (one in Virginia, two in New York, three in
Massachusetts, and four in Connecticut). There also were five between 1757
and 1801 (three in New Jersey, one in Pennsylvania, and one under Spanish
law in California.) The 83-year gap is curious, but there are claims
(not in the Espy File) of three more death sentences carried out for
sodomy between 1692 and 1743 (one each in New Jersey, Massachusetts, and
Georgia.) The Espy file, a masterwork, can be accessed at www.deathpenaltyinfo.org.
34 Leviticus 20:13.
35 "[T]hat most horrid and
detestable crime (among christians not to be named), called Sodomy."
Davis v. State, 3 H. & J. 154, (Maryland Court of Appeals,
1810); "[N]o satisfactory reason occurs to us why the lesser form of
this crime against nature should be covered by our statute, and the
greater excluded, when both are committed in a like unnatural manner, and
when either might well be spoken of and understood as being ‘the
abominable crime not fit to be named among Christians’." Herring
v. State, 46 S.E. 876, at 881-882, (Georgia Supreme Court, 1904);
"[T]he word ‘sodomy’ is derived from the city of Sodom, where the
crime against nature had its origin, and was universally prevalent until
that city was destroyed by the wrath of God." Commonwealth v.
Poindexter et al., 118 S.W. 943, at 944, (Kentucky Court of Appeals,
1909); "We cannot think upon the sordid facts contained in this
record without being reminded of the savage horror practiced by the
dwellers of ancient Sodom from which this crime was nominally
derived." Parris v. State, 190 So.2d 564, at 565, (Alabama
Court of Appeals, 1966). "The lawmaker who penalized the act in that
wording and the judge who is to find guilty of its commission or is to
charge the jury on its commission, have read the Holy Scriptures, the
Genesis, the Deuteronomy; they know about Sodom, the ancient city of
Palestine and its devious sexual practices; they have read Saint Paul,
Epistle to the Romans and Saint Thomas - The Summa Theologica -
which deal with the matter." People v. Santiago Vasquez, 95
P.R.R. 581, at 584-585, (Puerto Rico Supreme Court, 1967); "This
commandment has become famous Biblical lore in the story of the
destruction by fire and brimstone of the cities of Sodom and Gomorrah
where the practice was prevalent." State v. Stokes, 163 S.E.2d
771, at 774, (North Carolina Supreme Court, 1968).
36 This belief was repeated as late as
1858 by supposedly well educated members of the Indiana Supreme Court. Ausman
et ux. v. Veal, 10 Ind. 355, at 357.
37 Arthur Evans, Witchcraft and the
Gay Counterculture, (Boston:Fag Rag, 1978), pages 76-77.
38 William Blackstone, Commentaries on
the Laws of England, Vol. IV (Oxford, 1769), page 215.
Curiously, though Blackstone often has been cited as an authority
justifying the existence of sodomy laws, most notably by Chief Justice
Warren Burger in his concurring opinion in Bowers v. Hardwick,
there is a long history of rejection of Blackstone as an authority. See
Theodore Schroeder, Constitutional Free Speech Defined and Defended in
an Unfinished Argument in a Case of Blasphemy, (New York:Free Speech
League, 1919). As long ago as 1804, the English Lord Chancellor
complained, "I am always sorry to hear Mr. Justice Blackstone’s
Commentaries cited as an authority." (Id., at 90). It was
believed that Blackstone was more widely read in the United States than in
England (Id., at 91).
39 Rex v. Wiseman, (1) Fortes.Rep.
40 Regina v. Jellyman, 8 C. &
P. 604 (1838).
41 Hill’s Case, 1 East P.C. 649.
42 This decision remained unpopular in
England and was overturned by legislation of Parliament. 9 Geo. IV
c. 31, enacted June 27, 1828. The question continued to be raised in
English courts and was settled with Rex v. Reekspear (1 Mood.C.C.
342, 1832) that only "the new act" of Parliament allowed
Reekspear’s conviction to stand. He had ejaculated after withdrawing.
43 Rex v. Jacobs, (1) Russell and
Ryan’s C.C. 331 (1817).
44 See, for example, Arthur N. Gilbert,
"The Africaine Courts Martial: A Study of Buggery and the
Royal Navy," Journal of Homosexuality, 1:111-122, at 122
45 Convictions were reversed in Prindle
v. State, 21 S.W. 360 (Texas, 1893) and People v. Boyle, 48 P.
800 (California, 1897). Fellatio was found to be indictable in Commonwealth
v. Smith, 14 Luz.L.R. 362 (1885), because the Pennsylvania sodomy law
had been changed specifically to permit convictions for oral sex.
Nevertheless, the conviction was reversed on other grounds. In Honselman
v. People, 48 N.E. 304 (1897), the Illinois Supreme Court affirmed a
fellatio conviction because of an obscure state law dealing with civil
rights of those convicted of sodomy or other crime against nature.
46 The "ancient rite of circumcision
was brought to the notice of the [medical] profession as a remedy for
certain ills of childhood" "a few years ago." Newton Melman
Shaffer, "On Indiscriminate Circumcision," originally published
in Annals of Anatomy and Surgery in May 1881, reprinted in Selected
Essays on Orthopaedic Surgery: From the Writings of Newton Melman Shaffer,
M.D., (New York:G.P. Putnam’s Sons, 1923), pages 543-549, at 543. By
the end of the First World War, circumcisions had become
"abundant." Douglas H. Stewart, "The value of the ‘no-good’—circumcision,"
Western Medical Times, 39:165-167 (1919); By the Second World War,
male circumcision had become almost universal. Walter McMann, "Is
routine circumcision of male children at birth justifiable?" Virginia
Medical Monthly, 68:216-218 (1941). Also see John H. Gagnon and
William Simon, "The Sexual Scripting of Oral Genital Contacts," Archives
of Sexual Behavior, 16:1-25 (1987). In this study, oral sex was shown
to be far more common among those who came of age between the years 1963
and 1967 (which would relate to birth years in the 1940s, a time of nearly
universal circumcision) than among those who came of age between 1928 and
1943 (which would relate to birth years from the 1900s to the 1920s when
circumcision was less common).
47 Miss Marianne Woods and Miss Jane
Pirie Against Dame Helen Cumming Gordon, (N.Y.:Arno Press, 1975).
48 Foster et al. v. State, 1 Ohio
C.C. 467, at 471-472 (Ohio, 1886); Ex Parte Benites, 140 P. 436, at
436-437 (Nevada, 1914).
49 Jeffrey Weeks, Coming Out:
Homosexual Politics in Britain, from the Nineteenth Century to the
Present, (London:Quartet Books, 1977), pages 106-107.
50 Jeanette Foster, Sex Variant Women
in Literature, (New York:Vantage, 1956), pages 269-287.
51 J.C. Shaw and G.N. Ferris,
"Perverted Sexual Instinct," Journal of Nervous and Mental
Disease, 10:185-204 (1883); James G. Kiernan, "Perversion," Detroit
Lancet, 7:483-484 (1884); [Author unknown], "Perverted Sexual
Instinct," [New York] Medical Record, 26:70-71 (1884); G.
Frank Lydston, "Sexual Perversion, Satyriasis and Nymphomania," Medical
and Surgical Reporter, 61:253-258 (1889); C.H. Hughes, "Erotopathia—Morbid
Eroticism," Alienist and Neurologist, 14:531-578 (1893).
52 Richard Krafft-Ebing, Psychopathia
Sexualis, with special reference to contrary sexual instinct (1892).
53 See the Oregon Journal,
Feb. 2, 1917, 12:3; Harry H. Laughlin, "Eugenical Sterilization
in the United States," Journal of Social Hygiene, 6:499-532
(1920); G.E. Worthington, "Compulsory Sterilization Laws," Journal
of Social Hygiene, 11:257-271 (1925); "Sterilization Bill: The
Eugenics Society’s First Draft," Eugenics Review, 20:166-168
(1928); Clarence Pierson, "Are We Sufficiently Progressed
Scientifically for the Legal Sexual Sterilization of Inmates of State
Institutions in Certain Cases?" New Orleans Medical and Surgical
Journal, pages 350-357 (1930); Marie E. Kopp, "Surgical Treatment
as Sex Crime Prevention Measure," Journal of Law, Criminology, and
Police Science, 28:692-706 (1937-38); James B. O’Hara and T. Howland
Sanks, "Eugenic Sterilization," 45 Georgetown L.J. 20 (1956-57);
"Eugenic Sterilization," in Samuel J. Brakel and Ronald S. Rock
(eds)., The Mentally Disabled and the Law, (Chicago:University of
Chicago, 1971), pages 207-219.
54 Alaska, American Samoa, Arkansas,
Colorado, District of Columbia, Florida, Guam, Hawaii, Illinois, Kentucky,
Louisiana, Maryland, Massachusetts, Missouri, New Mexico, Northern Mariana
Islands, Ohio, Pennsylvania, Rhode Island, Tennessee, Texas, Virgin
Islands, and Wyoming.
55 Alabama, Arizona, Connecticut,
Georgia, Maine, Michigan, Minnesota, Mississippi, Montana, New Hampshire,
South Carolina, South Dakota, Vermont, Virginia, and West Virginia.
56 Kansas, New Jersey, New York, and
57 Delaware, Indiana, Nebraska, Nevada,
Oklahoma, Utah, and Wisconsin. The Nebraska law covered males only and
included those convicted of the "crime against nature." The Utah
law covered only sexual crimes.
58 California, Idaho, Iowa, North Dakota,
Oregon, Puerto Rico, and Washington.
59 Indiana, Iowa, Michigan, and Oregon.
60 Nevada, New Jersey, and New York.
61 Karl M. Bowman and Bernice Engle,
"Certain Aspects of Sex Psychopath Laws," American Journal of
Psychiatry, 114:690-697, at 690 (1957-1958).
62 Michigan was followed by Illinois,
Minnesota, Ohio, and California. Vermont enacted the only such law during
World War II.
63 Minnesota ex rel. Pearson v.
Probate Court of Ramsey County et al., 309 U.S. 270 (1940).
64 Alabama, California, Colorado,
Connecticut, District of Columbia, Florida, Illinois, Indiana, Iowa,
Kansas, Massachusetts, Michigan, Minnesota, Missouri, Nebraska, New
Hampshire, New Jersey, New York, Ohio, Oregon, Pennsylvania, South Dakota,
Tennessee, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin,
65 See Sydney B. Maughs,
"Psychopathic Personality: Review of the Literature 1940-47," Criminal
Psychopathology, 10:247-275 (1949); Edwin H. Sutherland, "The
Sexual Psychopath Laws," Journal of Criminal Law and Criminology,
40:543-554, at 553-554 (1950); "Report on Study of 102 Sex Offenders
at Sing Sing Prison," New York Legislative Documents, One-hundred
and seventy-third session 1950, Vol. VIII, No. 56 (1950); People
v. Hector, 231 P.2d 916, at 920 and 920-921 (Doran, J, dissenting)
(1951); Karl M. Bowman and Milton Rose, "A Criticism of Current Usage
of the Term ‘Sexual Psychopath’," American Journal of
Psychiatry, 109:177-182 (1952-53); Gordon R. Kamman, "Evolution
of Sexual Psychopath Laws," Journal of Forensic Sciences,
6:170-179 (1961); Thomas M. Tyack, "The Validity of the Segregation
of the Sexual Psychopath Under the Law," 26 Ohio St.L.J. 640 (1965);
"The Sexual Psychopath and the Law," in Samuel J. Brakel and
Ronald S. Rock (eds)., The Mentally Disabled and the Law, (Chicago:University
of Chicago, 1971), pages 341-376; Psychiatry and Sex Psychopath
Legislation: The 30s to the 80s, (New York:Group for the Advancement
of Psychiatry, 1977), pages 840-844.
66 In Illinois, the Attorney General
ruled that the state was under no obligation to pay for the cost of
hearings for prisoners initiating proceedings to have themselves declared
recovered from their psychopathy. Thus, unless wealthy, psychopaths were
doomed to remain warehoused as long as the state chose. Illinois
Attorney General’s Report and Opinions 1958, page 174, No. 462. In
Iowa, the Attorney General ruled that the law required psychopaths to
remain in custody until cured. If never cured, they had to spend the rest
of their life in custody. Report of the Attorney General of Iowa 1958,
page 153, No. 15.2. In Michigan, sexual psychopaths were subjected,
without their knowledge or consent, to experimentation with LSD. Irving
Wallace et al., The Book of Lists #2, (New York:Morrow & Co.,
1980), page 77. In Ohio, some adjudged psychopaths were given a dangerous
drug with numerous possibly lethal side effects. Rudolph Buki, "A
Treatment Program for Homosexuals," Diseases of the Nervous
System, 25:304-307 (1964). Others were kept institutionalized long
beyond the term they should have and frequently were subjected to physical
abuse. Columbus Citizen-Journal, Apr. 24, 1971, 1:1;
Apr. 27, 1971, 1:2; June 28, 1973, 21:4; June 30, 1973,
67 The Illinois law originally was used
to process violent sexual offenders, but in the 1950s the state refocused
on consensual sexual offenders. Lawrence T. Burick, "An
Analysis of the Illinois Sexually Dangerous Persons Act," Journal
of Criminal Law and Criminology, 59:254 (1968).
68 In Indiana, 20% of those processed
were for private consensual sodomy between adults, and one was a married
man for "unnatural acts with "wife." Elias S. Cohen,
"Administration of the Criminal Sexual Psychopath Statute in
Indiana," Indiana Law Journal, 32:450 (1957).
69 In Iowa, like Indiana, 20% of those
processed were for private consensual sodomy between adults. One was a man
who was Gay, but who had not been charged with any crime. The adjudged
psychopaths were given only "occupational therapy and music
therapy" and that only "to occupy their time." Samuel M.
Fahr, "Iowa’s New Sexual Psychopath Law—An Experiment Noble in
Purpose?" Iowa Law Review, 41:523 (1956).
70 In Massachusetts, "a number of
persons were committed without the proper legal safeguards of notice and a
hearing." William J. Curran, ed., 1954 Annual Survey of
Massachusetts Law, (Boston:Little, Brown & Co., 1955), at 245-247.
71 In Nebraska, about 7% of those
processed were for private consensual sodomy between adults. One was
committed for 2˝ years. Domenico Caporale and Deryl F. Hamann,
"Sexual Psychopathy—A Legal Labyrinth of Medicine, Morals and
Mythology," Nebraska Law Review, 36:320 (1957).
72 In New Hampshire, 34% of those
processed were for fellatio, sodomy, and "homosexuality
unspecified." One commitment was of a 12-year-old boy "because
he and a 9-year-old boy compared the length of their genitalia[.]" G.
Donald Niswonder, "Some Aspects of the ‘Sexual Psychopath’
Examinations in New Hampshire," New Hampshire Bar Journal,
73 In Wisconsin, 59% of those committed
via a judge’s discretion (as opposed to mandatory commitment under a
statute) were for sodomy. Anton Motz, "Criminal Law—Wisconsin’s
Sexual Deviate Act," Wisconsin Law Review, 1954, page 328.
was the last holdout, its law relevant until the Lawrence decision.
mother of a consenting partner had holes drilled into the bedroom wall of
her son. People v. Funtas, 182 P. 785 (
1919). A private investigator surreptitiously entered a home and hid under
a bed. People v. Parisi, 87 Cal.App. 208 (
1927). Sheriff’s deputies created a false roof on a cabin and hid in it.
People v. Jordan et al., 74 P.2d 519 (
1937). Investigators listened through a hotel door. People v. Brendle,
25 Cal.App.2d 161 (
1938). A heterosexual couple was watched through a window by police from
the roof of a nearby building. People v. Rayol, 65 Cal.App.2d 462 (
1944). Two women were seen entering a motel and police came in through the
motel window. People v. Manicap et al., 260 P.2d 137 (
1953). A witness looked through a keyhole. State v. Gage, 116 N.W.
1908). Postal inspectors opened letters. State v. Nelson, 271 N.W.
1937). A neighbor reported a Gay couple to police. State v. Edwards,
412 P.2d 526 (
1966). The earliest reference I have found referring to privacy in sexual
matters was Samuel D. Warren and Louis D. Brandeis, “The Right to
Privacy,” 4 Harvard L.Rev. 193 (1890). A brief discussion of the right
to privacy in “sexual relations” is on page 196. It uses no
limiting definition of “sexual relations,” effectively arguing for the
right for all types of
76 Alfred C. Kinsey et al., Sexual
Behavior in the Human Male, (Philadelphia:W.B.Saunders, 1948).
77 Alfred C. Kinsey et al., Sexual
Behavior in the Human Female, (Philadelphia:W.B.Saunders, 1953).
78 "Post-Kinsey: Voluntary Sex
Relations as Criminal Offenses," 17 Univ.Chicago L.Rev. 162, at 163
79 One of the best sources for this
material is David M. Oshinsky, A Conspiracy So Immense: The World of
Joe McCarthy, (New York:The Free Press, 1983).
80 In addition, Montana, while not
enacting a psychopath law, amended its sodomy law to raise the minimum age
to be considered an accomplice.
81 Model Penal Code, Tentative Draft
No. 4, (Philadelphia:American Law Institute, 1955). See pages 276-291
for the discussion of and recommendation for decriminalizing consensual
82 Also, a survey of the Connecticut
legislature in 1956 showed that a solid majority of members opposed
lowering the state’s 30-year maximum penalty for consensual sodomy.
83 Eugene E. Levitt and Albert D. Klassen,
Jr., "Public Attitudes Toward Homosexuality: Part of the 1970
National Survey by the Institute for Sex Research," Journal of
Homosexuality, 1:29-43, at 31 (1974).
84 381 U.S. 479.
85 Id. at 486-499.
86 Id. at 489-490.
87 Id. at 493.
88 Id. at 498-499.
89 Id. at 499. The earlier case
was Poe v. Ullman, 367 U.S. 497, at 553.
90 Milton Rugoff, Prudery and Passion,
(New York:Putnam’s, 1971), pages 47-49.
91 Kenneth Anger, Hollywood Babylon,
(San Francisco:Straight Arrow Books, 1975), pages 93 and 94.
92 In Re Ford’s Estate, 261 P.
93 Commonwealth v. Wiesner, 21
Lehigh L.J. 284 (Pennsylvania, 1945), People v. Doggett et al., 188
P.2d 792 (California, 1948), cert. den. by California Supreme Court; Lovisi
et ux. v. Slayton, 363 F.Supp. 620; aff’d, 539 F.2d 349; cert. den.,
429 U.S. 977 (Virginia, 1975). In Indiana, a man was prosecuted and
confined as a psychopathic offender for "unnatural acts with
wife." See Elias S. Cohen, "Administration of the Criminal
Sexual Psychopath Statute in Indiana," 32 Ind.L.J. 450, at 453
(1957). In Ohio, a closeted Gay man arrested in a public restroom raid was
asked if he and his wife engaged in sodomy because that was just as
illegal. 1226 Ohio Supreme Court Briefs and Records 2d 38621. In addition,
both Arizona and Oklahoma created statutory instructions for the
prosecution of the "crime against nature" occurring within a
94 Regina v. Jellyman, 8 C. &
P. 604 (England, 1838); State v. Nelson (dictum), 271 N.W. 114
(Minnesota, 1937). A 1943 divorce case showed that marital sodomy was not
exempt from criminal prosecution. A court doubted that a man had overheard
a married couple planning "unnatural sexual intercourse." It
doubted it because "[t]he nature of the offense, the ease with which
it may be charged, the difficulty of disproving it, always require
convincing corroboration by a disinterested and credible witness whose
testimony bears the stamp of inherent probability. Blackstone, discussing
the ‘infamous crime against nature’, says, ‘[it is] a crime which
ought to be strictly and impartially punished’." Bates v. Bates,
33 A.2d 281 (Pennsylvania, 1943).
95 State v. Schmit (dictum), 139
N.W.2d 800 (Minnesota, 1966); Hughes v. State, 287 A.2d 299; cert.
den., 409 U.S. 1025 (Maryland, 1972); State v. Bateman, 547 P.2d 6;
cert. den., 429 U.S. 864 (Arizona, 1976).
96 Cotner v. Henry, 394 F.2d 873;
cert. den., 393 U.S. 847, (Indiana, 1968); Jones v. State, 200
N.W.2d 587 (Wisconsin, 1972), reaff’d, State v. Mentek, 238
N.W.2d 752 (1976); State v. Lair, 301 A.2d 748 (New Jersey, 1973); State
v. Santos (by implication), 413 A.2d 58 (Rhode Island, 1980); State
v. Holden, 890 P.2d 341 (Idaho, 1995).
New Hampshire, Pennsylvania, and Utah. The New Hampshire sodomy law since
has been repealed and those of New York and Pennsylvania have been ruled
unconstitutional, the latter because of the marital exemption. Only
Alabama and Utah retained statutory exemptions at the time the Lawrence
v. Texas decision was handed down.
98 405 U.S. 438, decided Mar. 22, 1972.
99 Id. at 453.
100 Hardwick, at 188, n.2.
101 428 U.S. 48, decided Nov. 17,
102 Cotner v. Henry, 394 F.2d
873; cert. den., 393 U.S. 847 (Indiana, 1968); Post v. State, 715
P.2d 1105; cert. den., 479 U.S. 890 (Oklahoma, 1986).
103 State v. Poe, 252 S.E.2d 843;
cert. denied, 259 S.E.2d 304; appeal dismissed, 445 U.S. 947, (North
Carolina, 1979); State v. Lopes, 660 A.2d 707; cert. denied, 133
L.Ed.2d 861 (Rhode Island, 1995).
104 Lewis v. State, 355 S.W. 372
(Texas, 1896); Comer v. State, 94 S.E. 314 (Georgia, 1917); People
v. Diaz, 35 P.R.R. 212 (Puerto Rico, 1926); Connell v. State,
19 N.E.2d 267 (Indiana, 1939); People v. Coleman, 127 P.2d 309
(California, 1942); LeFavour v. State, 142 P.2d 132 (Oklahoma,
1943); People v. Whitham, 94 N.E.2d 506 (Illinois, 1950); Territory
v. Bell, 43 Haw. 23 (Hawaii, 1958); Daniels v. State, 205 A.2d
295 (Maryland, 1964); People v. Askar, 153 N.W.2d 888 (Michigan,
105 People v. Vasquez, 39
Mich.App. 573 (Michigan, 1972); United States v. Dumas, 327 A.2d
826 (District of Columbia, 1974); State v. Santos, 413 A.2d 58
(Rhode Island, 1980); State v. Lopes, 660 A.2d 707 (Rhode Island,
106 Edwards v. State, 208 N.W.
876 (Wisconsin, 1926); People v. Rayol, 65 Cal.App.2d 462
(California, 1944); Commonwealth v. Burkett, 11 D. & C.2d 654
and its companion case, Commonwealth v. Yingling, 19 Camb.Co.L.J.
141 (Pennsylvania, 1956); Christy v. United States, 261 F.2d 357;
cert. den., 360 U.S. 919 (Alaska, 1958).
107 Locke v. State, 501 S.W. 826;
aff’d, 428 U.S. 48 (Tennessee, 1973); State v. Elliott, 551 P.2d
1352 (New Mexico, 1976); State v. Poe, 252 S.E.2d 843; cert. den.,
259 S.E.2d 304; appeal dismissed, 445 U.S. 947 (North Carolina, 1979); Neville
v. State, 430 A.2d 570 (Maryland, 1981).
108 State v. Pilcher, 242 N.W.2d
348 (Iowa, 1976); Post v. State, 715 P.2d 1105; cert. den. 479 U.S.
890, (Oklahoma, 1986); Schochet v. State, 580 A.2d 176 (Maryland,
1990). The Maryland court stated that consensual homosexual sodomy was not
constitutionally protected, whereas the Iowa and Oklahoma courts declined
to decide the issue. Later decisions in both states went the same way as
Kentucky, Missouri, Montana, Nevada, Tennessee, and Texas. The unique
Puerto Rico law outlaws anal sex between “human beings,” but other
sexual activity only between those of the same sex. The Arkansas,
Kentucky, Montana, and Tennessee laws were struck down by state courts
before the Lawrence decision and the Nevada law was repealed before Lawrence.
110 United States v. Cozart, 321
A.2d 342 (District of Columbia, 1974); Sears v. State, 287 N.W.2d
785 (Wisconsin, 1980); Ray v. State, 389 S.E.2d 326 (Georgia,
111 (1) Fortes.Rep. at 92.
112 Id. at 93.
114 The precedent-setting case was Bielicki
v. Superior Court of Los Angeles County, 371 P.2d 288 (California,
1962). Other cases reaching the same conclusion are: Byars v. Superior
Court of Los Angeles County, 371 P.2d 292 (California, 1962); Britt
v. Superior Court of Santa Clara County, 374 P.2d 817 (California,
1962); State v. Bryant, 177 N.W.2d 800 (Minnesota, 1970); Kroehler
v. Scott, 391 F.Supp. 1114 (Pennsylvania, 1975); People v. Dezek et
al., 308 N.W.2d 652 (Michigan, 1981); People v. Kalchik, 407
N.W.2d 627 (Michigan, 1987); City of Tukwila v. Nalder, 770 P.2d
670 (Washington, 1989); State v. Limberhand, 788 P.2d 857 (Idaho,
1990); Ward v. State, 636 So.2d 68 (Florida, 1994). In two states,
the restroom stall doors must be locked as well as closed in order
to create a private place. See Buchanan v. State, 471 S.W.2d 401
(Texas, 1971) and State v. Johnson, 536 N.E.2d 648 (Ohio, 1987). In
Oregon, case law is now such that virtually any consensual sexual activity
occurring in a public restroom is constitutionally protected, whether or
not it occurs out of view of others. See State v. Casconi, 766 P.2d
397 (1988) and State v. Owczarzak, 766 P.2d 399 (1988).
115 State v. J.O. and F.C., 355
A.2d 195 (New Jersey, 1976); Commonwealth v. Ferguson, 422 N.E.2d
1365 (Massachusetts, 1981); State v. Culmsee, 754 P.2d 11 (Oregon,
1988); People v. McNamara et al., 578 N.Y.S.2d 476 (New York,
1991). This latter case apparently overruled sub silentio a
previous case to the contrary, People v. Jose L., 417 N.Y.S.2d 655
(1979). Curiously, all but the New Jersey case concerned heterosexual
116 State v. Alvarez et al., 42
Fla.Supp. 83 (Florida, 1975).
117 State v. Goldsmith
(unreported), No. 83-01-002, Twelfth Appellate District (Ohio, 1983); United
States v. Hoffman, New York Law Journal, Oct. 20, 1994, 1:3 (New York,
118 Alaska, California, Florida, Hawaii,
Illinois, Louisiana, Montana, and South Carolina. In addition, Arizona and
Washington have older, identical privacy provisions which are legally
meaningless. Each authorizes a right to privacy for citizens to do
anything the law allows.
119 State v. Mueller, 671 P.2d
120 State v. Smith, 766 So.2d 501
121 Stall v. State, 570 So.2d 257
For a discussion of the effect of openly Gay and Lesbian law clerks for the
Supreme Court Justices, see Joyce Murdoch and Deb Price, Courting Justice: Gay Men and Lesbians v. The Supreme Court, (New
York: Basic Books, 2001), pp. 271-309.
et al. v. Irish-American Gay, Lesbian and Bisexual Group of Boston et al.,
515 U.S. 557 (1995) and Romer v. Evans
517 U.S. 620 (1996). In Hurley, the
Court, though upholding the right of an Irish-American organization in
Boston to exclude a Gay and Lesbian contingent, also upheld the reverse
issue, saying that Gay and Lesbian groups can exclude others from private
parades. The Court also decided that public parades can not exclude anyone
because of the message presented, and it rejected the contention of the Irish-American group that the Massachusetts law banning sexual orientation
discrimination in places of public accommodations was unconstitutional. All
three points of law were decided by a unanimous vote. In this case, the Court
for the first time used the words “Gay” and “Lesbian” and used a
respectful tone throughout. In Romer,
the Court voted 6-3 to strike down Colorado’s Amendment 2, which
sought to exclude Gay and Lesbian people from the political process in the
state. The Court found that no state can do this to any group based on the
supposed unpopularity of that group.
539 U.S. ___.
Slip Opinion, at 11.
Slip Opinion, at 18.
Most reports before and after Lawrence
was decided list 13 remaining states with sodomy laws, whereas the correct
number was 14 (plus Puerto Rico and the U.S. military for 16 in the nation.)
The discrepancy is caused by the erroneous omission of Michigan, based on a
1990 trial court decision striking down the operative state laws. That
decision had precedent only in a single county, was not appealed, and was
undermined by later decisions by the Michigan Court of Appeals (which has
statewide jurisdiction) and the Michigan Supreme Court. Consequently, Michigan
had a viable sodomy law until the day Lawrence