It has been 20 years since the Supreme Court invalidated sodomy laws with its decision in Lawrence v. Texas, but legal codes inherited from colonial laws and used to prosecute LGBTQ people by banning certain sexual acts remain in effect across the country.
Efforts to remove laws in 12 states have taken on new urgency after another landmark Supreme Court ruling.
Judge Clarence Thomas said in his concurring opinion last year in Dobbs v. Jackson Women’s Health Organization – the decision that overturned the constitutional right to abortion in Roe v. Wade – that previous Supreme Court rulings affirming the right to privacy should be reconsidered.
And although sodomy laws were nullified, there was no mandate for states to update their legal codes, leaving those laws dormant as potential restrictions if the Supreme Court revises the ruling.
Gregory R. Nevinsan attorney with Lambda Legal, the LGBTQ advocacy group that won the Lawrence v. Texas, said Dobbs’ decision « raises the level of urgency » for removing sodomy laws from the books.
« And it probably means for some states that they will be reluctant to repeal it, » Nevins said. « As we’ve seen, there were a lot of old abortion laws on the books that were dusted off after Dobbs. »
Maryland and Minnesota repealed remaining sodomy laws this year, but such laws still exist in Florida, Georgia, Kansas, Kentucky, Louisiana, Massachusetts, Michigan, Mississippi, North Carolina, Oklahoma, South Carolina and Texas.
If the decision Lawrence v. Texas of June 2003 were struck down, statewide sodomy laws could be reinstated « as long as it appears the right to privacy is threatened by a conservative court, » said Wesley Phelps, the author of « Before Lawrence v. Texas: The Making of a Queer Social Movement.
The state laws were inherited from British common law, which considered sodomy a sexual act that would not lead to procreation and prohibited it, said Mr. Phelps, who is also an associate professor at the University of North Texas.
Acts prohibited on these grounds could include same-sex intercourse, oral and anal sex between a man and a woman, and masturbation. Legal language is not always explicit and varies state by state. In North Carolina, for example, the sodomy law makes it a crime to commit a « crime against nature, man or beast. »
Over time, the language defining a « crime against nature » has changed in some states, often targeting same-sex couples more clearly. Other states decided that the legal system was moving toward safeguarding the right to privacy and repealed sodomy laws to reflect this, such as Illinois did it in 1961.
In states where sodomy laws remain, however, they have been used as tools of oppression and discrimination against gay and lesbian people, Mr. Phelps said.
In Texas, he said, people who wanted to apply for certain jobs or professional licenses, such as those required for medicine or cosmetology, would have had to sign a document pledging to follow state laws. This meant that, prior to Lawrence v. Texas gays and lesbians had to plead perjury or not apply.
“It wasn’t really a gay and lesbian criminal issue; it was a matter of discrimination,” Mr. Phelps said.
Today, even if the laws aren’t enforceable, they can still be used to discriminate against or wrongfully arrest people, leading some state legislators to seek to repeal them.
In March, the Maryland legislature repealed a provision that made it illegal to perform oral sex or engage in sexual acts deemed « unnatural or perverse » with a human or animal. Gov. Wes Moore, a Democrat, did not veto the repeal bill, allowing it to go into effect without his signature in May. The clause will be stricken from the state penal code on October 1.
Maryland had repealed a more explicit ban on sodomy in 2020, but the remaining « unnatural or perverted » language was used in May 2021 to arrest four homosexuals during a raid on an adult video and book store.
Also in May, Minnesota Governor Tim Walz, a Democrat, signed into law a public safety bill repealing the state’s ban on sodomy, as well as bans on adultery and fornication. The Minnesota Supreme Court ruled that the ban on sodomy was unconstitutional in 2001.
Texas lawmakers have sought to repeal the sodomy law that the Supreme Court has struck down each year in Lawrence v. Texas since the case was decided in 2003. This yearthe legislative session ended before the House had time to consider repealing the legislation.
in Massachusetts, a utility bill going through the state legislature would clear several instances of outdated language, including sodomy laws that criminalize « unnatural and lewd » acts. The so-called Archaic Laws bill would also eliminate words like « common night walkers » and « common street walkers » from state law and replace them with « people. »
State Representative Jay Livingstone, a Democrat, is the co-introductory of the Archaic Laws bill in the House and said these efforts have become more important following recent Supreme Court decisions.
“Massachusetts has made a number of pro-LGBTQ statements, but we still have laws on our books to prohibit what people would generally consider lawful activities between consenting adults that have been used in the past to target the LGBTQ community,” said Livingstone. « We should repeal those bans to reflect the values we want in our society. »