The Sensibilities of Our Forefathers
The History of Sodomy Laws in the United States
By George Painter
© Copyright, George Painter 1991-2001
Federal Government
The Post-Revolution Period, 1776-1873
No statute of an early Congress mentioned sodomy. Other than acts
specifically against the federal government, criminal laws were left to
states.
In 1812, the United States Supreme Court, deciding United States v.
Hudson and Goodwin,1 ruled
unanimously that there were no common-law crimes against the federal
government. Without a sodomy statute either, that meant the federal government
could not prosecute sodomy.
Period Summary: The first federal criminal laws did not mention
sodomy. The Supreme Court’s 1812 decision that common-law crimes did not
exist against the federal government guaranteed that there would be no
federal prosecutions for sodomy.
The Victorian Morality Period, 1873-1948
Congress enacted a statute in 19092 called
the Assimilative Crimes Act. This law provides that any illegal behavior
occurring on federal property within the boundaries of a state can be
prosecuted under that state’s criminal code. Covering places such as
national parks, military bases, federal prisons, federal office buildings, and
maritime vessels, the law permitted prosecution of sodomy on federal property
in any of the states, since each had a sodomy law. In addition, oral sex could
be prosecuted on federal property in those states that had revised their
sodomy law or had it interpreted by a court to include oral sex. The law
specifically limited jurisdiction of the federal government to criminal
statutes in effect on the date of the law’s enactment, March 4, 1909.
Thus, changes in state law after that date remained out of the reach of the
federal government.
Although as of this date sodomy was illegal in all states and territories
except for American Samoa and Guam (q.v.), oral sex was illegal only in
14 states, either by statute or court interpretation. Also, in states where
statutes or court decisions limited the oral sex provisions of the laws to
fellatio, that limitation carried to federal land within those jurisdictions
as well. Any court interpretation of an existing statute or unusual wording of
a state law became the rule in federal courts prosecuting such crimes on
federal property in those states.
In 1933, the law was amended3 to extend
jurisdiction to state laws in effect as of June 1, 1933. This added Guam
and the Virgin Islands (purchased by the United States since the 1909 law) to
the federal government’s reach against sodomy, and expanded the number of
jurisdictions where oral sex could be prosecuted to 42.
The law was revised again in 19404 to extend
its coverage to laws enacted as of February 1, 1940. This extended
federal jurisdiction to three states that had outlawed oral sex since the 1933
amendment.
Period Summary: The federal government was given jurisdiction to
prosecute sodomy with passage of the Assimilative Crimes Act in 1909. This
was limited to acts occurring on federal property within individual
states, and that the corresponding state law had to be the one enforced
against an offender. The law was not made progressive, so changes to state
laws after passage of the federal law would not be covered. Amendments in
1933 and 1940 extended the coverage to laws extent in those years, but
still did not include a progressivity provision.
The Kinsey Period, 1948-1986
In 1948, Congress amended the law for the last time.5
This law automatically added three more jurisdictions where oral sex had
become illegal during the decade. Congress also included a progressivity
provision so it would absorb all state laws as they were enacted. This
provision eliminated the need to continue revising the statute from time to
time.
Beginning in 1953, sodomy cases were reported under this law on federal
property in Indiana (1953), California (1965), Kentucky (1968), Pennsylvania
(1973), and Arkansas (1983) (all q.v.). Two cases originated in
national parks, one on a military base, one in a federal prison, and another
on a docked ship.
Beginning in 1962, a number of states have had court decisions that
consensual sexual relations in closed or closed and locked toilet stalls are
constitutionally protected, and some decisions have added shrubbery, parked
cars, and bath houses to the list of private places where consensual sex is
beyond the reach of the prosecutor. The Assimilative Crimes Act requires
federal courts to follow these state court decisions.
Beginning in 1974, several states have had their sodomy law ruled
unconstitutional by state courts, so federal courts are required to follow
those decisions under the Assimilative Crimes Act.
Period Summary: Congress evidently tired of updating the
Assimilative Crimes Act every so often and made it progressive in 1948. It
was not until after this new law that the first sodomy cases were reported
under it.
The Post-Hardwick Period, 1986-Present
During this period, Maryland (1989) and New York (1994) were added to the
list of states with same-sex prosecutions under the Assimilative Crimes Act,
both for sexual activity in federal parks (both q.v.)
Congress still never has enacted a sodomy law.
Period Summary: The Assimilative Crimes Act has remained
unchanged since 1948, and continues to be used to prosecute same-sex
sexual activity occurring on federal property within states, but only
within the contours of state court decisions.
Footnotes
1
7
Cranch 32, decided Feb. 13, 1812.
2
35 Stat.
1088, at 1145 § 289, ch. 645, enacted Mar. 4, 1909.
3
48 Stat.
152, ch. 85, enacted June 15, 1933.
4
54 Stat.
234, ch. 241, enacted June 6, 1940.
5 62 Stat. 683, at 686, §
13, ch. 645, enacted June 25, 1948.
