Last edited: April 15, 2007

 

History of Sodomy Laws

The Sensibilities of Our Forefathers, the definitive legal history of sodomy laws in the United States by George Painter. It puts everything else here to shame.

Survey of Key Developments Worldwide by Alan Freeman

Other history articles

The proscription of sodomy in the English tradition began in 1533 when King Henry VIII adopted contemporary church doctrine into a system of laws at the time of the English withdrawal from the Catholic Church. Sodomy became both a sin and a crime, since ecclesiastical law recognizes no distinction between the concepts of "sin" and "crime." Sodomy included any form of non-procreative acts including masturbation, oral and anal sex.

The original thirteen American colonies derived their laws from the English common law and continued the legal tradition in which sodomy carried the penalty of death.

The 1683 Pennsylvania law called sodomy an "unnatural sin" and the East New Jersey law listed it among the "Offenses against God."

Every state adopted some form of a sodomy law as it joined the United States, either in acceptance of an unwritten common law or in formal codification. A slow modernization of laws away from a religious doctrine into a secular system reduced penalties over time in a piece meal fashion. All states had laws against sodomy by 1960.

The 1955 edition of the American Law Institute’s model penal code omitted sodomy laws for the first time. In 1961, the Illinois legislature revised their criminal code without prohibiting sodomy. The law went into effect in 1962 without fanfare.

Idaho was the second state to repeal its sodomy law through a general modernization of its laws. According to Dr. Franklin E. Kameny, the Advocate, then a gay newspaper, ran a headline celebrating the repeal. This came to the attention of Idaho state legislators who called an emergency session "into which they marched waving copies of the Advocate." The legislature repealed the just enacted modern criminal code.

Connecticut was the next state to repeal its sodomy law in 1971 in a modernization of the penal code. Twenty-one other states followed suit. Gay activists had little or no involvement with most of these repeals. In fact, many of the states that repealed their laws are just beginning to form organizations that can lobby effectively for their rights.

Exceptions that trend came from California, Minnesota, New York and DC. Gay Activists in these places began explicit gay rights campaigns to repeal their sodomy laws. California was the only one of these states to successfully repeal its law prior to 1980.

California’s sodomy repeal effort began in 1969 with urging from Morris Kight, Rev. Troy Perry and others. The repeal bill was introduced to the California legislature starting in 1969 by Assemblyman Willie Brown, and every year afterwards until its passage in 1975. In 1975, the liberal Democratic state Senate Majority Leader, George Moscone — running for Mayor of San Francisco — twisted many arms for its passage. The Senate deadlocked on a 20-20 vote, Moscone locked the chamber doors, until Lieutenant Governor Merv Dymallyin could fly back from Denver and cast the tie-breaking vote. It was signed into law by Gov. Jerry Brown.

Moscone’s efforts won the support of the large gay population of San Francisco and Moscone beat Diane Feinstein in the primary, and edged out city superintendent John Barbagelata to become the first liberal mayor of San Francisco. Moscone was later assassinated by former supervisor Dan White along with the first gay supervisor, Harvey Milk. Brown and Feinstein later became Mayors and Feinstein is currently a US Senator from California.

 

In the late 1970’s and early 1980’s the growing strength and politicization of religious extremists significantly slowed the repeal efforts. The awaking of religious political extremists led to at least two states to enact specifically anti-gay sodomy laws at the same time as they otherwise modernized their criminal codes. Kentucky enacted a homosexual-only sodomy law in 1974. Arkansas did the same in 1977 with the approval of then state Attorney General Bill Clinton.

The Kentucky law was declared unconstitutional in Commonwealth v. Wasson under the equal protection and privacy rights of the Kentucky constitution. The Arkansas law is currently being challenged.

At the same time, the AIDS crisis took the fledgling gay political community away from gay rights issues, including sodomy repeal, and focused the efforts on care, treatment and other more immediate needs of people with HIV and AIDS.

Courts and lawmakers withdrew from repeal efforts in light of the potential criticism of promoting homosexual sex at a time that the HIV transmission modes were becoming known. Transmission of HIV through anal sex was a major factor blocking the 1987 Minnesota repeal bill.

 

In 1986 Bowers v. Hardwick was decided by the US Supreme Court and sparked a resurgence of interest in sodomy laws.

Michael Hardwick was a bartender in a gay bar in Atlanta, Georgia who was targeted by a police officer for harassment. In 1982, an unknowing houseguest let the officer let into Hardwick’s home the officer went to the bedroom where Hardwick was engaged in sex with his partner. The men were arrested on the charge of sodomy. Charges were later dropped, but Hardwick brought the case forward with the purpose of having the sodomy law declared unconstitutional.

Bowers was a response to a particularly insulting police action and repeal advocates had hoped that the case would put an end to sodomy laws in the United States when it reached the Supreme Court. Unfortunately, the 5-4 decision found that nothing in the Constitution "would extend a fundamental right to homosexuals to engage in acts of consensual sodomy."

Justice Lewis Powell was the swing vote in the decision, switching from supporting invalidating all sodomy laws to denying homosexuals any right of privacy. In October of 1990, three years after his retirement, Powell told a group of New York University Law students, "I think I probably made a mistake in that one." He told the National Law Journal, "That case was not a major case, and one of the reasons I voted the way I did was the case was a frivolous case" brought "just to see what the court would do" on the subject. A more callous opinion is hard to imagine.

As AIDS services became institutionalized and the benefits of direct action on AIDS issues waned, activists in the 1990’s returned to gay issues and sodomy repeal efforts were again successful.

Since the Bowers decision two states, Nevada and Rhode Island, and the District of Columbia have repealed their laws. In all three successful efforts there was an explicit goal by mostly gay activists to repeal the law, in contrast to the code modernization of earlier efforts. Repeal advocates in other states also launched or continued to introduce repeal legislation.

 

In Washington, DC, activists had been successful in 1981 in passing the Sexual Assault Reform bill, which modernized DC’s law on sex crimes. The bill passed the DC Council and was signed by then Mayor Marion Barry. The US Congress controls all of DC legislation; bowing to anti-gay sentiment led by Jerry Fawell in a national campaign, killed the entire bill. New legislation was introduced every year starting in 1982 but it languished in the Judiciary Committee controlled by Wilhelmina Rolark.

In February 1992, a raid on a private gay club, the Follies Theater, resulting in 14 arrests—11 on sodomy charges—sparked the gay community to focus efforts on repealing the sodomy law once again.

A separate arrest in 1992 of two men engaging in consensual sex in their car parked in DC also evoked community outrage. The two fought the law in court before a jury and essentially admitted to the act in court, but argued that they had not done anything that should be criminalized. The jury agreed and neutralized the law in their case.

A group of repeal activists from the direct action group Queer Nation turned themselves in to the police for committing sodomy in the District. The police, shocked by this action, were left scrambling for a response. They eventually took sworn statements from 3 couples who could testify that they had committed sodomy with each other. No arrests were made and no one was prosecuted.

Facing considerable public opposition to the arrests, Mayor Sharon Pratt Kelly ordered the police chief to stop enforcing the law against consenting adults.

An amendment to an unrelated bill to reform the law was proposed in 1992 but defeated by the DC Council.

Mayor Marion Barry’s unrelated personal and legal problems resulted in a 6-month jail term for crack cocaine possession. He had declined to run for Mayor in 1990, but in 1992 ran for City Council against Rolark. Rolark was defeated and in 1993, with a shift in committee chairs, the bill was introduced to the City Council.

Hearings on the bill lasted for nearly 9 hours without a break and were almost completely dominated by gay activists. Dr. Kameny, representing the Traditional Values Coalition of Washington, DC and the Mattachine Society, opened the hearing with strong testimony in favor of the bill. Kameny, who had worked for repeal of the law for more that 30 years, testified that sodomy should be legalized and considered "good, moral, and rewarding."

Kameny had incorporated Traditional Values Coalition in DC forcing the national anti-gay activist group to be identified as being from California where they are incorporated, significantly diminishing their impact on the locally elected officials. Most of the opposition testimony came from local Baptist ministers but they, and a Catholic official, admitted that they were most concerned about public sex which the sodomy-reform bill would not have legalized.

The reform bill, written by Kameny, stated simply "No act engaged in only by consenting persons 16 years of age or older shall constitute an offense under this section." Kameny had wanted to simultaneously repeal the adultery, fornication and similar laws, but met with opposition from DC Council members. The bill passed the Council unanimously and Mayor Kelly signed it in a public ceremony.

Representatives of national gay rights groups—including the Human Rights Campaign Fund, the National Gay and Lesbian Task Force and the Campaign for Military Service—asked DC activists to delay sending the reform bill to Congress for approval, saying that the gays in the military fight strained their resources. The DC activists refused. Rep. Barney Frank (D-MA) asked the Republican leadership in the Senate not to support an amendment drafted by Sen. Jesse Helms (R-NC) and they, not wishing another fight on gay sexuality, complied, allowing the reform bill to become law.

The sodomy law was repealed completely in 1995 with the passage of the Sexual Assault Reform bill that finally modernized the DC criminal code.

 

After the Nevada Supreme Court upheld the constitutionality of the Nevada gay-only sodomy law, the legislature in 1993 amended the law making four major changes.

The bill made oral and anal sex criminal only when performed in public and removed the qualification that made it apply only to acts committed between adults of the same-sex. The archaic, offensive and vague language "infamous crimes against nature" was replaced with "anal intercourse, cunnilingus, or fellatio." And the section stating that "any sex penetration, however slight is sufficient to complete the crime against nature" was removed, as it was no longer meaningful with the new language.

Nevada, unlike DC, benefited from the strategy of amending the sodomy law into a public sex law. By expanding reform of the law that only prohibited homosexual acts into a wider issue, the anti-gay activists were blunted.

 

The Rhode Island Supreme Court failed to overturn the state’s "Abominable and Detestable Crime Against Nature" law in four separate cases from 1962 through 1985.

A reform bill was introduced in 1984 by Rep. John Harwood, a Democrat who later became Speaker of the House. The reformed law would have allowed "private, consensual sexual acts between adults." It was in response to sexual misconduct by police at a bachelor party and was not sought for the protection of gay and lesbian people. The bill passed the House, but was blocked by the Senate.

Jorge Lopes was charged with sexual assault after a woman accused him of forcing her to submit to vaginal, anal, and oral sex. Lopes testified that they had sex, but he argued that it was consensual. The jury believed him, acquitting him of sexual assault but, acting on instructions from the judge, found him guilty of committing an abominable and detestable crime against nature. The Supreme Court, in State of Rhode Island v. Jorge Lopes, upheld the decision but did not rule on the law’s constitutionality. Lopes was given a 10-year suspended sentence with 10 years probation.,

In frustration with the state Supreme Court’s pro-sodomy law opinions, repeal activists started to introduce their own legislation. But they failed to repeal the sodomy law until 1998.

In September 1997, North Smithfield, Rhode Island police tried to make a case against two men who had allegedly committed consensual sex in the woods near Route 146.

The incident came to light when one of the two men went to the police to complain that his wallet was stolen during the sexual encounter, and the police charged both men – the alleged thief and his alleged victim – with "abominable and detestable crime(s) against nature." Attorney General Jeffrey B. Pine declined to prosecute.

The case received considerable attention in the press and led to resurgence in support for legislative repeal.

Added to the repeal efforts was Superior Court Judge Frank Williams’ decision in the Block Island rape trial, which threw out the sodomy charge and acquitted Edward F. McGovern, a prominent politician in New Shorem, and his co-defendants of sexual assault charges.

Williams ruled that the Rhode Island sodomy law violates the equal-protection clause of the state Constitution because it treats married and unmarried couples differently. The Attorney General declined to appeal, but repeal advocates feared that the decision would be overturned by the state Supreme Court.

Repeal advocates turned away from the court as a possible avenue and began introducing repeal legislation in 1992. Finding the legislature to be unready to pass the bill, votes were not called for six years. The bill was even withdrawn in 1995, so as not to interfere with the passage of the non-discrimination law that passed that year. The House Judiciary committee did hold a hearing in 1996, but the bill did not move forward.

The repeal bill’s House sponsor, Rep. Edith Ajello—strategizing with gay and lesbian rights activists—finally thought that passage was a possibility in 1998. On May 7, 1998 the repeal bill passed the Rhode Island House on a vote of 49 to 40. The Rhode Island Senate voted 26 to 17 on June 2, 1998 to repeal the law. Republican Governor Lincoln Almond signed the bill into law.

Other History Articles

Origins of the word "sodomy"

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