Case Law
The most significant of of all U.S. legal decisions having to do with sodomy
laws is Lawrence v. Texas in
which The U.S. Supreme Court ruled 6-3 that sodomy laws are
unconstitutional on June 26, 2003.
Prior to Lawrence was the infamous Bowers v. Hardwick
(1986), 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140; and
Doe v. Commonwealth’s Attorney for the City of
Richmond, 403 F. Supp. 1199 (E.D. Va. 1975), which upheld
Virginia’s sodomy law and which was summarily affirmed by the Supreme Court.
An expanded sections on Lawrence
v. Texas and Bowers v. Hardwick
are now available.
Opinions finding sodomy laws to be unconstitutional:
United
States v. Kenneth M. Bullock,
Decision
of the Army Court of Criminal Appeals narrowly reversing a conviction for
consensual sodomy under UCMJ Art. 125 on Lawrence v. Texas
grounds. -
November 30, 2004
Pennsylvania's law was repealed
through Commonwealth v. Bonadio, 415 A.2d 47 (Pa. 1980)
New York's law was
repealed through People v. Onofre 415 N.E.2d 936 (N.Y. 1980)
Kentucky's law was
repealed through Commonwealth
v. Wasson, (Ky. 1992) 842 S.W.2d 487.
Tennessee's law was
repealed through Campbell v.
Sundquist (Tenn. Ct. App. 1996), 926 S.W.2d 250, 262.
In January 1996, the Tennessee Court of Appeals affirmed Circuit Court Judge Walter
Kurtz's decision that the Tennessee Homosexual Practice Act was unconstitutional. The
Court ruled that the statute violated privacy rights guaranteed by the Tennessee
Constitution. The ACLU of Tennessee filed an amicus brief urging the Court to affirm the
lower court's decision on the grounds that the statute violates the privacy and equal
protection guarantees of the Tennessee Constitution and that the Tennessee Constitution
ensures greater protection than the United States Constitution. ACLU cooperating attorneys
were Vanderbilt Law Professors Robert Rasmussen, Rebecca Brown, and Susan Kay. In June
1996, the Tennessee Supreme Court, in effect, affirmed the lower Court's ruling when it
denied the State's request for a hearing and urged publication of the Court of Appeals
decision.
Montana's law was
found unconstitutional through Gryczan v State, 1997.
Georgia's law was
found unconstitutional through Powell v. The State, (Georgia
Supreme Court, November 23, 1998).
Maryland's 1990 Schochet
v. State found the law against oral sex to be unconstitutional in the case
of heterosexuals only. Schochet v. State was found to apply equally to homosexual
acts in Williams v. Glendening, 1998. Section 27-553 (anal sex)
was found to also be unconstitutional in a 1999 settlement with the ACLU which argued Williams
v. Glendening.
Minnesota's law
was found unconstitutional through Doe, et al. v. Jesse Ventura, et al.
(2001). (The possibility of prosecutions still exists but is very unlikely to
be successful.)
Arkansas'
law was found unconstitutional in Picado
v. Jegley (2002).
Incomplete rulings
Texas
State v. Morales, 826 S.W.2d 201 (Tex. App. 1992),
City of Dallas v. England, 846 S.W.2d 957 (Tex. App. 1993) review by higher
court denied.
Michigan
Invalidated by local trial court, Michigan Org. for Hum. Rts. v. Kelley, No.
88-815820 CZ (Mich. Cir. Ct. Wayne Cnty. July 9, 1990), The State has not appealed. In
late 1992, there was a decision of the Michigan Court of Appeals to uphold the statute,
which has effect outside of Wayne County. See People v Brashier, 496 N. W.2d 385.
Missouri
The Missouri Court of Appeal ruled July 6, 1999 in State of Missouri v. Cogshell, 1997
S.W.2d 534 (Mo.App., W.D.), that a revision of the state’s sodomy law had, in effect,
decriminalized consensual sodomy in the state. This applies to the Western District, but
it has not been appealled to the state supreme court.
Opinions finding sodomy laws to not apply to heterosexuals:
Maryland's 1990 Schochet
v. State.
Schochet v. State was found to apply equally to homosexual acts in Williams v.
Glendening, 1998. Section 27-553 was found to also be unconstitutional in a 1999
settlement with the ACLU which argued Williams v. Glendening.
Oklahoma's 1986 Post
v. the State of Oklahoma.
Other cases:
1996 Lesbian And Gay Rights Docket
ACLU Lesbian And Gay Rights Project
Georgia
State of Georgia v. Christensen, 1996
This was a challenge to Georgia's sodomy law under the Georgia State Constitution. The
defendant was arrested after an undercover police officer successfully induced him to ask
the police officer to go to a motel for sex. Since the acts were to take place in private,
the defendant was charged with soliciting sodomy. The ACLU of Georgia assumed
representation in the Georgia Supreme Court. The ACLU argued that the Georgia sodomy
statute violates the Georgia constitutional right to privacy, the first constitutional
right to privacy to be recognized in America. The court upheld the law over two strong
dissents.
Fornication Law Repeal: In re: J.M., (No. SO2A1432)
Kansas
City of Topeka v. Movsovitz
This is a challenge to both a state and a city law which prohibit sodomy but only
when the couple involved is lesbian or gay. The Defendant was the victim of a police
sting. After talking with an undercover officer for some time, he agreed (at the officer's
suggestion) to participate in an act of oral sex. The City agrees that had the officer
been a woman, no crime would have been committed. The trial court denied our motion to
dismiss the case on the basis that the law violates equal protection. The case is now
before the Kansas Court of Appeals.
Louisiana
State of Louisiana v. Mitchell Smith, 2000
The Louisiana Supreme Court ruled on July 6, 2000 that they did not have the
authority to declare unconstitutional a law that existed when the Constitution was
written. A full analysis was written by
Arthur Leonard.
Missouri
State of Missouri v. Cogshell, 1997
The Missouri Court of Appeal ruled July 6, 1999 in State of Missouri v. Cogshell,
1997 S.W.2d 534 (Mo.App., W.D.), that a revision of the state’s sodomy law had, in
effect, decriminalized consensual sodomy in the state.
Joplin's Mashing Case
In 1996 the ACLU of Missouri, with the assistance of
volunteer attorney Robert Payne of Springfield, MO, is representing a gay man who was
charged in an undercover operation by the Joplin police force with violating the city's
"mashing" ordinance; the ordinance defines "mashing" as the use of
words or acts "to annoy or attract the attention of any person by any suggestive act
or word." From newspaper reports, as many as thirty gay men were charged with
"mashing" in Joplin in April.
Oklahoma
City of Oklahoma City v. Sawatzky 1995
During the summer of 1994, an Oklahoma City police officer invited a young man to come
back to his hotel room with him. When the man accepted, he was arrested for soliciting
sodomy. The ACLU of Oklahoma defended the man in municipal court, which issued a guilty
verdict.
The Oklahoma affiliate challenged the verdict and the State's anti-sodomy statute in
the Oklahoma Court of Criminal Appeals, which had previously held that the law was an
unconstitutional violation of the right to privacy as it applied to heterosexuals. ACLU
Cooperating attorney Mark Henricksen argued the case before the Court of Criminal Appeals
in August of 1995 and attempted to convince the Court that the right to privacy applies to
all Oklahomans, regardless of sexual orientation. In November of 1995, the Court issued a
ruling that refused to address the sodomy statute but upheld the client's municipal court
conviction based on the government's interest in regulating sexual speech in public
places.
With the help of the Lesbian and Gay Rights Project, the Oklahoma affiliate filed an
appeal with the U.S. Supreme Court. In April of 1996, the Supreme Court declined to hear
the appeal without comment.
Rhode Island
State v. Lopes, 1996 Summary
In this case in which a heterosexual man was charged with violating Rhode Island's sodomy
statute, the ACLU of Rhode Island filed a friend of the court brief arguing that the
sodomy law violated the state constitutional right to privacy. Citing an earlier decision,
the court simply rejected the challenge and upheld the law. The U.S. Supreme Court
declined to review the case.
State v. Quitevis, 1996
The ACLU of Rhode Island is handling an appeal for a person found guilty of
"loitering for indecent purposes" at an adult video store after allegedly
offering to perform oral sex for an undercover police officer. The trial court rejected
the defendant's challenge to the constitutionality of the "loitering" ordinance.
The defendant entered a nolo plea and the complaint was "filed" for one year.
Texas
Burdine v. State of Texas, 1996
Calvin Burdine was convicted of capital murder and sentenced to death by a Houston
jury in 1984. The Project filed an amicus brief in support of his federal court petition
for habeas corpus arguing that Burdine's constitutional rights were violated by the
extreme homophobia that permeated his trial. Among the more egregious examples was the
prosecutor's argument to the jury that putting a gay man in prison is not punishment but
is, instead, akin to putting a kid in a candy store, and the court's decision that the
jury could use a 1970 consensual sodomy conviction as proof of future dangerousness. Also
at issue are allegations that the defense attorney slept through important parts of the
trial; and that while on death row, Burdine was subjected to a "mock execution."
Burdine's execution was stayed, and a hearing will be set on the merits of his habeas
petition.
Virginia
Elvis Gene DePriest, et al. v. Commonwealth of
Virginia, 2000
Upholds the Virginia sodomy law as constitutional. Significantly, it found that
the specific cases of individuals charged with solicitation to commit sodomy had not
established a presumption of privacy by seeking to commit sodomy in a public park. Their
complaints were not allowed to be extended question the constitutionality of the sodomy
law as applied to acts engaged in private. Appeals exhausted.
Puerto Rico
Sanchez v. Commonwealth, 1998
