Sodomy laws ruled unconstitutional

Archaic Sex Laws

The U.S. government has a long history of interference with the intimate lives of its citizens, be it in the form of limiting access to contraception or banning interracial marriages. Sodomy laws, or archaic sex laws that criminalized private, same-sex intimacy between consenting adults, were a real threat to same-sex couple families. On June 26, 2003, however, the U.S. Supreme Court ruled that all sodomy laws were unconstitutional in its historic Lawrence v. Texas decision, which also had an impact on the burgeoning same-sex marriage debate.

Facts & Statistics

Until the Lawrence ruling, archaic sex laws had been used to justify anti-gay interpretations of the law and, in many cases, to separate lesbian, gay, bisexual, and transgender (LGBT) parents from their children. Prior to the Lawrence ruling, these laws existed in 13 states, with prohibitions against same-sex sodomy (usually defined as oral or anal sex) alone in four states, and against same- and opposite-sex sodomy in nine states.

Some laws, like the one in Massachusetts that prescribed a five-year jail term for oral sex and 20 years in jail for anal sex, dated back to the Puritan period in the 1600s. Long before the Lawrence ruling, many industrialized countries had come to recognize sodomy laws as antiquated and harmful. For example, France and Belgium abolished their laws in the 1790s; Brazil, Spain and the Netherlands abolished theirs in the early 1800s; and Denmark, Sweden and Portugal repealed their sodomy laws in the first half of the 20th century.

The bulk of the remaining industrialized countries had repealed theirs since 1950: Australia (1997), Canada (1969), England (1967), Finland (1971), Germany (1969), Hungary (1961), Israel (1988), Norway (1972), South Africa (1998), Nothern Ireland (1982) and Scotland (1980). Since the 1970s more than 35 states in the U.S. repealed their sodomy laws. Although convictions under the remaining state sodomy laws were relatively rare, their existence had other grave consequences. By labeling them as "criminals," state sodomy laws gave courts a mechanism by which to discriminate against LGBT individuals and families. For example:

  • A Mississippi court used the state's sodomy law to justify denying custody of a boy to his gay father, despite the fact that the court also found that the father would provide better care because the boy's stepfather was physically abusive to his mother • In Texas, a social work supervisor used the possible breaking of the state's sodomy law to invoke "emergency powers" and remove a foster child from a lesbian household; Only After great public outcry against the decision was the child returned to his foster parents.
  • In Alabama, former state Chief Justice Roy Moore denied a lesbian mother custody of her child based on the state's sodomy law stating, "Common law designates homosexuality as an inherent evil, and if a person openly engages in such a practice, that fact alone would render him or her an unfit parent." Moore also wrote approvingly of the state's right to imprison or even execute homosexuals.
  • Sodomy laws were used to justify anti-gay employment discrimination against people in Florida, Georgia and Texas. In Texas an openly lesbian applicant to the Dallas Police Department was denied a position because she was presumed to engage in illegal activity.

The Impact of Lawrence v. Texas on the Marriage Debate

The Supreme Court's 6-3 ruling in Lawrence that sodomy laws violated the U.S. Constitution's privacy provision did not directly address the issue of same-sex marriage. However, both gay rights proponents and opponents cited language in the majority decision as evidence in support of marriage equality. Justice Anthony Kennedy, writing for the majority, ruled that the state could not single out gay people for harassment and discriminatory treatment simply because of "moral disapproval" of homosexuality. He wrote of "respect" for same-sex couples and warned that "the state cannot demean their existence," describing same-sex relationships as a "personal bond" involving much more than just sex. Kennedy also wrote that reducing same-sex couples to "sex partners," as anti-gay organizations often do, is offensive in the same way that describing a husband and wife as nothing more than sex partners would be offensive.

However, apparently cognizant of the marriage challenges pending at the timje in New Jersey and Massachusetts, and that some might interpret the Lawrence ruling as supporting marriage equality for same-sex couples, Kennedy made a point of noting that the case against the Texas sodomy law "[did] not involve whether the government must give formal recognition to any relationship homosexual persons seek to enter." In her concurrence, Justice Sandra Day O'Connor also wrote that the "traditional institution of marriage" was not at issue.

Despite these majority caveats, Justice Scalia angrily argued just the opposite in his dissent, in which he was joined by Chief Justice Rehnquist: "Today's opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned." Anti-gay activists and politicians quickly and vocally agreed, to the point that the decision repealing archaic, often colonial-era sodomy laws in 13 states became increasingly portrayed in the mainstream media as a precursor to legalization of gay marriage. Rev. Jerry Falwell warned that "[i]t's a capitulation to the gay and lesbian agenda whose ultimate goal is the legalization of same-sex marriages."