Last edited: February 02, 2005

The Sensibilities of Our Forefathers

The History of Sodomy Laws in the United States

By George Painter
© Copyright, George Painter 1991-2005

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Introduction

"[T]he particular form of abomination which shocked the
sensibilities of our forefathers."

The above words, stated by the Kansas Supreme Court in a 1925 sodomy case, sum up the historical attitude of the Anglo-American legal system toward non-procreative eroticism, an attitude which survived until the U.S. Supreme Court handed down the Lawrence et al v. Texas decision in 2003. The psychological discomfort of repressed or moralistic individuals from centuries before created a jurisprudence relegating the enjoyment of non-procreative physical intimacy to the status of criminality. Those forefathers’ attitudes controlled our legal system for a long time. When the broad issue of the constitutionality of laws outlawing consensual sodomy was brought before the United States Supreme Court in 1986, nearly 200 years after the adoption of the Bill of Rights, Justice Byron White’s opinion upholding the laws referred to “the laws of the many States that still make such conduct illegal and have done so for a very long time.”¹ In addition, criminal penalties for sodomy "have ancient roots."² Sodomy was a crime at common law.³

Employing what one writer said was "the scornful tone of a locker-room conversation,"⁴ White said that Georgia was justified in outlawing private, consensual sodomy because of the "presumed belief of a majority of the electorate in Georgia that homosexual sodomy is immoral and unacceptable."⁵ Thus, merely because the state long had interfered with sexual activity between consenting adults, that was sufficient constitutional justification for permitting them to continue doing so. Contraception,⁶ miscegenation,⁷ and abortion⁸ also long were prohibited, but the Supreme Court found that fact unpersuasive and struck down laws against them, finding a "liberty" interest in these traditionally prohibited activities. Moreover, White violated one of his own stated beliefs from a previous sexual privacy case in which he had said, "I fail to see why the historical predominance of an unacceptable legislative purpose makes incredible the emergence of a new and valid one."⁹ Five years after Hardwick, White again was critical of the other side. When the Supreme Court upheld a ban on nude dancing in night clubs, White dissented, arguing that "simple references to the State’s general interest in promoting societal order and morality" was "not sufficient justification" for enacting the ban.¹⁰

Constitutional law, therefore, boils down to the personal moral biases of nine justices of the Supreme Court. Byron White apparently found nothing personally objectionable with contraception use among the unmarried or with nude dancing in public, but couldn’t abide private homosexual sodomy, so the Constitution protected the two former, but not the latter.

The concurring opinion of Chief Justice Warren Burger noted that condemnation of sodomy "is firmly rooted in Judeao-Christian moral and ethical standards."¹¹ To strike down the law "would be to cast aside millennia of moral teaching."¹² It was on this basis of ancestors’ moral standards that a twentieth-century constitutional decision on sodomy laws was based.

As anti-libertarian and harsh as it was, the Hardwick decision hardly can be surprising, both because of the ideology of the justices who made up the Court at that time, and because of the Court’s shameful history regarding minorities. Hardwick was fourth in a string of decisions that categorically denied fundamental rights to a particular minority based on the moral or social prejudice of the sitting judges or prevailing passions in society that affected those judges. The "presumed belief of a majority of the electorate in Georgia that homosexual sodomy is immoral and unacceptable" argument that made the sodomy law constitutional is kin to language in three previous cases.

In 1873, the Supreme Court, deciding Bradwell v. Illinois,¹³ upheld the right of Illinois to prohibit women from practicing law. The words of Justice Joseph Bradley, by which he reached a constitutional conclusion, were that the

constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood...So firmly fixed was this sentiment in the founders of the common law that it became a maxim of that system of jurisprudence that a woman had no legal existence separate from her husband...The paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother. This is the law of the Creator. And the rules of civil society must be adapted to the general constitution of things, and cannot be based upon exceptional cases. [Emphasis added].¹⁴

In 1896, the Court, dealing with state-mandated racial segregation in Plessy v. Ferguson,¹⁵ upheld Louisiana’s law requiring racial separation on railroad cars. Justice Henry Brown, speaking for the Court, said that, in determining the necessity of a segregation law, the Louisiana legislature was

at liberty to act with reference to the established usages, customs and traditions of the people, and with a view to the promotion of their comfort, and the preservation of the public peace and good order.¹⁶

Thus, the presumed discomfort of whites in close proximity to blacks rendered constitutional laws requiring blacks to stay away from whites.

The third such decision came in 1944 with Korematsu v. United States.¹⁷ During the Second World War, U.S. citizens of Japanese ancestry who happened to live in Western states were placed under curfew and many were herded into what were, for all practical purposes, concentration camps. The argument was that it would be impossible to distinguish loyal citizens from saboteurs and espionage agents in the country. Since no similar order was issued for citizens of German ancestry living in Eastern states, even though the United States was just as much at war with Germany, the underlying racial animus of the policy becomes clear. Speaking for the majority of the Court upholding restrictions placed only on citizens of one ancestry, Justice Hugo Black said that

exclusion of those of Japanese origin was deemed necessary because of the presence of an unascertained number of disloyal members of the group, most of whom we have no doubt were loyal to this country. It was because we could not reject the finding of the military authorities that it was impossible to bring about an immediate segregation of the disloyal from the loyal that we sustained the validity of the curfew order [issued in a previous case] as applying to the whole group. In the instant case, temporary exclusion of the entire group was rested by the military on the same ground.¹⁸

This was a euphemism for the government’s actual argument that Japanese all look alike¹⁹ and the paranoia felt about this claim by non-Japanese citizens justified singling out one ancestry for hostility.

Hardwick’s "presumed belief of a majority of the electorate in Georgia that homosexual sodomy is immoral and unacceptable" fits in nicely with the "constitution of the family organization, which is founded in the divine ordinance" of Bradwell, the "established usages, customs and traditions of the people, and with a view to the promotion of their comfort" in Plessy, and the they-all-look-alike argument of Korematsu in the pantheon of constitutional law abominations.

Origins in English Law

Because the legal system of the United States derived from that of England, it is critical to review the history of English law on sodomy.

A late thirteenth-century publication, Fleta, a manual of law published along with a condemnation of dealings with Jews,²⁰ was the first known legal writing in England on sodomy. It recommended death for sodomites, but apparently never was enforced. Instead, ecclesiastical courts dealt with the crime.²¹ Charges of homosexuality were "part of the general ‘smear’ campaign employed by the Inquisition against its enemies"²² and the term "buggery," later to fall within "sodomy," originated from the word for Bulgaria where targeted heretical groups were known to live.²³

The English common law, which recognized sodomy as a crime, incorporated ecclesiastical law²⁴ as well as other aspects of ancient English law.

When, in 1533, England finally enacted a secular law against "the abominable vice of buggery,"²⁵ it was an exercise in "power politics aimed at the Church by Henry VIII’s minister Thomas Cromwell"²⁶ as but one of a set of "anti-clerical measures" adopted during Henry’s matrimonial difficulties with Catherine of Aragon.²⁷ If there was any doubt as to buggery’s penalty in England prior to this statute, its preamble sets the doubt to rest: "Forasmuch as there is not yet sufficient and condign punishment appointed and limited by the due course of the Laws of this Realm, for the detestable and abominable Vice of Buggery committed with mankind or beast:".²⁸ One must presume, therefore, that Warren Burger’s "millennia of moral teaching" reaches back to Biblical times, hardly authority for the Bill of Rights.

English jurist Edward Coke, writing about sodomy in his Institutes of the Laws of England, quoted three writers living at the time of Edward I (when Fleta was written) who recommended death as its appropriate punishment, but whose advice had not been taken by Parliament in two-and-a-half centuries.²⁹ Thus, the "authorities" upon whom this statute rested had "stated as actual law what they thought ought to be the law[.]"³⁰

The statute was repealed by Catholic Queen Mary I, again reserving buggery as an ecclesiastical crime, then was reenacted and made permanent under Protestant Queen Elizabeth I.³¹ Its reenactment was due, according to its preamble, to sodomitical acts being committed in England "to the high displeasure of Almighty God."³² Thus, its creation, repeal, and reenactment all were due to the particular religious preference of the monarch occupying the throne at the time.

The American Colonies

The American colonies of England were created beginning more than four decades after the Elizabethan statute reestablishing "buggery" as a temporal crime.

English common and statute law were not necessarily in force in the colonies at the time of their establishment. Three of the original 13 colonies—Delaware, New Jersey, and New York—were not settled by the English and, of the ten that were, only in Maryland and, possibly, Virginia were English laws presumed to be in force from the beginning of colonization without local enactment. Death was the penalty of choice by statute and, in some cases, by usage.³³

In both Massachusetts and New Hampshire, early sodomitical activity was not punished in the colony. In Massachusetts, the offenders were returned to England for trial "as the crime deserved." Had English law been considered in force, the offenders could have been tried there. In New Hampshire, apparently nothing happened to the offenders. The officials "did not think fit to try them here."

However, English laws and customs being most comfortable for settlers from England, it was they that generally were adopted by the colonies as they grew in population and felt the need for more social structure.

Virginia had the first written prohibition against sodomy, enacted in 1610. It is of note that this was repealed after only eight years and no other colony had a written law against sodomy until Plymouth adopted one in 1636. (Maryland, founded between those dates, adopted all English laws, including the sodomy law, by consensus, even though none appeared in any written code).

Plymouth Colony had been founded by Puritans who left England because of persecution due to their fundamentalist beliefs. These same Puritans put their beliefs into secular law, showing the same intolerance to other views that theirs had faced in England. Plymouth’s statute outlawed sodomy based on the Biblical proscription in the Book of Leviticus.³⁴ Nearly identical laws were adopted by Massachusetts Bay, Connecticut, New Hampshire, and Rhode Island. This made sodomy a capital offense, just as if the colonies had followed the English statute.

New Hampshire was part of Massachusetts for more than fifty years and, upon separation, enacted a Biblical law very similar to that of its parent colony.

Connecticut, several years after founding, adopted the laws of England formally, then moved to a Biblical statute three years later.

Rhode Island, founded as a religious haven by dissenter Roger Williams, showed no more tolerance than other colonies. Its capital sodomy law also quoted Leviticus.

New York and New Jersey originally were Dutch colonies that were taken over by the English. Dutch criminal law had not been carried to the New World, but there are three known prosecutions for sodomy in what now is New York, leading to at least two death sentences. Authority for the prosecutions apparently rested on "natural law," a religiously oriented belief that there is a higher, immutable law that always overrides the enactments of humans. Once the colonies became English, a sodomy law similar to that of England became fact in each.

Pennsylvania’s Quaker influence is shown by the fact that it generally rejected harsh or sanguinary penalties for crime. Sodomy, a capital offense elsewhere, was considered deserving of no more than six months in jail. However, as Quaker influence waned and Pennsylvania grew more populous and heterogenous, harsh laws based on those of England came to fore there as well.

Delaware originally was settled by Swedes and it had a chaotic legal system for a number of years. There is no evidence that sodomy was illegal during this time. It became an English colony as part of Pennsylvania and, when that Quaker colony adopted a surprisingly lenient sodomy law, it was in force in the Pennsylvania counties now constituting Delaware. After it broke away in a dispute, Delaware rejected Pennsylvania laws for its own, and went some 15 years before outlawing sodomy.

Maryland, upon founding, was given a charter obliquely referring to English laws. Although the charter did not make specific reference to adoption of English laws, Maryland was the one colony that, without question, considered all English laws to be local. There were three sodomy prosecutions from the founding of Maryland until a sodomy law was enacted 161 years later.

Virginia, in 1607 the first of the colonies to be founded, existed for three years without a sodomy law. The first settlers in Jamestown all were male and there is evidence of sexual relations in the colony from its beginning. Three years later, while under martial law, a military regulation was adopted making sodomy a capital offense. After eight years, when the colony had stabilized, the regulation was repealed. The laws of England may have been considered in force by common consent, as Thomas Jefferson mused, because a man was hanged for sodomy in 1625 when there was no statute on the subject. Formal adoption of English law would not occur until 1661.

Farther south, English influence was less pronounced. Both North Carolina and South Carolina were founded in the 1660s, but neither had any prohibition of sodomy for almost a half-century after that. When the colonies did act, North Carolina adopted the laws of England, whereas South Carolina enacted a specific law against "buggery."

Georgia, not founded until 1732, was carved out of South Carolina, but did not receive any of South Carolina’s criminal laws. Only a small portion of English law was considered in force in Georgia, the sodomy law not among it, and none outlawing sodomy was enacted by the colony (or later state) during the entire 18th century. The Georgia colonial legislature even went so far as to criminalize any statement that English law was in force in the colony.

Thus, although 12 of the 13 states had either a sodomy law or the adoption of either English statutory or common law on the books at the time of the adoption of the Bill of Rights in 1791, in only one—Maryland—had there been an unquestioned prohibition throughout its history. In all 12, religious bias was the catalyst for enactment, since Puritan laws in Massachusetts, Connecticut, New Hampshire, and Rhode Island quoted Leviticus and the other colonies, in one form or another, adopted the English proscription, itself progeny of Henry VIII’s struggle with the Pope. Numerous courts made religious arguments in reference to sodomy.³⁵

The Bill of Rights’s outlawing of government-established religion in the First Amendment and protection of unenumerated rights in the Ninth Amendment, the basis for the "right to privacy" in later court decisions, would seem to auger for the unconstitutionality of these laws. However, in 1986, the U.S. Supreme Court decided otherwise.

Construction of the Term "Sodomy"

As several courts have stated, "sodomy" is derived from the Biblical reference to the destruction of the towns of Sodom and Gomorrah.

Originally, sodomy referred only to two sexual acts: anal intercourse between two men or a man and a woman, or sexual intercourse between a human being and an infrahuman animal of the opposite sex. Due to the profound ignorance of biology in which people of medieval times flourished, it was thought possible that bestiality could lead to the conception of half-human, half-beast offspring.³⁶ Human sodomy was condemned because the devil was thought to engage in such activity with witches.³⁷ Thus, with the fear of supernatural forces overwhelming God’s good people, harshness was considered necessary self-defense.

The appellation "crime against nature" was coined by English jurist William Blackstone,³⁸ but he failed to delineate the limits, if any, of the term. Massachusetts had been the first state to incorporate the "nature" issue into its sodomy law. In 1697, it adopted a revised law that referred to "the detestable and abominable sin of buggery with mankind or beast, which is contrary to the very light of nature[.]" This law clearly reflects taste ("detestable and abominable") and religion ("sin"). Although the term "crime against nature" was new, it became popular. It eventually was adopted by almost all the states.

In England, case and statutory law developed earlier than in the United States and was, in most cases, used as precedent in the former English colonies. An English court ruled that anal penetration of a female by a male constituted buggery.³⁹ The act of anal intercourse between husband and wife, even with each other’s consent and taking place in private, also was subject to prosecution.⁴⁰

Even though English courts were generous in defining who could be prosecuted under the law, they were restrictive in defining the indictable act. A 1781 case decided that emission of semen had to occur for an act of sodomy to exist.⁴¹ Thus, it became an absolute defense to a charge of sodomy if the inserter withdrew prior to ejaculation, even if ejaculation occurred. This decision was controversial, effectively permitting "sodomy interruptus" to go unpunished.⁴² This was the only aspect of English case law on sodomy rejected in the United States, beginning with the Virginia Supreme Court in 1812. Most other state courts, when presented with the issue, deferred to Virginia, rather than England.

Expanding the Reach of Sodomy Laws

Fellatio

One rigidly enforced rule on sodomy was that no acts but anal intercourse and bestiality could constitute it. Cunnilingus, fellatio, tribadism, interfemoral intercourse, and mutual masturbation were found not to be included in the act. An early English case ruled that fellatio with a minor, including emission of semen, "did not constitute the offence of sodomy."⁴³ Fellatio, interfemoral intercourse, and mutual masturbation were not punished by the English Navy with death, whereas anal intercourse was.⁴⁴

Case law in the United States followed the English lead, at least through the 19th century. Fellatio came to the attention of the law before cunnilingus because of differences in sexual behavior. As a rule, males are more likely to engage in sexual activity in public or semi-public places than are females. Also, two men living together for a considerable period of time are likely to attract negative attention, whereas two women living the same way are not. A Gay male couple in Oregon was convicted of sodomy because a neighbor reported their relationship to the police.

There are precisely four reported fellatio cases in the United States before 1900, and none involving cunnilingus. In two of those four fellatio cases, convictions were not permitted to stand because they did not conform to the historical definition of sodomy. In the other two, fellatio prosecutions were found allowable only because of broader statutory language. In each of these latter cases, the interpreting courts let it be known that, without the broader language, convictions could not be upheld.⁴⁵

In 1900, statutory wording of sodomy laws permitted, or apparently permitted, prosecutions for fellatio in 13 states and ten of those had changed their laws to permit such an interpretation since 1880. In no court before 1900 had fellatio been found to be "sodomy." By 1920, the number of changes to sodomy laws to permit prosecution of fellatio doubled to 24, and 11 states had court decisions that the term "crime against nature" or "sodomy," standing alone, covered acts of fellatio. In the first such case, in 1904, the Georgia Supreme Court said that fellatio had been found not to be indictable in England only because it had not "prevailed" then.

Today, and for several decades, fellatio is mentioned far more commonly in reported sodomy cases than is anal intercourse, the reverse of the situation the Georgia Supreme Court found. The likely reason is medical. Male circumcision prior to the 20th century was rare. Uncircumcised penises retain sweat and carcinogenic smegma as well as harboring disease-causing microbes. The prevalent poor hygienic practices of the times aggravated the condition. Thus, placing one’s nose near such a dirty organ must have been so unpalatable that anal sex was the sexual activity of choice. As hygienic practices improved and as the rate of circumcision climbed steadily during the 20th century,⁴⁶ the ratio of anal to oral sex changed dramatically.

Cunnilingus

In Plymouth Colony, two women were convicted of unspecified "leude behavior each with [the] other upon a bed," but the penalty was far different from the death sentence a man could expect. One was required to make public acknowledgement of her "unchast [sic] behavior." The other received no penalty. In Massachusetts Bay Colony a female servant was flogged, partly because of "unseemly practices betwixt her and another maid."

The only statute specifically addressing sexual relations between women was one of New Haven Colony, adopted in 1656, and mandating a sentence of death for violations. There is no known prosecution under this law, however.

Sex between women was viewed as an oxymoron. In a case from Scotland, dating to 1811, the House of Lords decided, regarding a charge of cunnilingus between two women, "the crime here alleged has no existence."⁴⁷

Some United States courts ruled that, without a penis, there could be no sodomy.⁴⁸ This rule precluded criminal penalties under extant laws for Lesbians by making them applicable only to two men or a man and a woman. No published cunnilingus case appeared until 1913, nearly three decades after the first reported fellatio case. (And none involving two women would appear for yet another quarter century). Interestingly, the first state to decide whether cunnilingus constituted sodomy was Illinois, the same state that had been the first to sustain a fellatio conviction. Having used the "sodomy or other crime against nature" [emphasis added] reference in the state’s civil rights disability law to cover fellatio, the Court erected a double standard by holding that cunnilingus did not constitute an "other" crime against nature.

Later that same year, the Missouri Supreme Court refused to permit a cunnilingus conviction to stand even though the state’s sodomy law had been revised expressly to permit conviction for use of the mouth. The Court could not conceive of sexual activity without a penis and said that sexual intercourse could not be accomplished with the mouth.

A year later, the Louisiana Supreme Court ruled that fellatio violated the state’s expanded sodomy law, but that cunnilingus only "perhaps" violated it.

The legislature of neither Illinois nor Missouri changed the sodomy law of the state to eliminate this double standard. The laws of Connecticut and Wyoming specifically covered only acts with a male organ, and that discrimination remained until the laws were repealed. The situation was similar in Arizona and Wisconsin, except that eventually those laws were broadened. South Carolina continues to use the term "buggery," a word of limited scope that precludes prosecution of two women for any sexual activity. After an Ohio court ruled that cunnilingus could not be prosecuted under that state’s unusually worded sodomy law, not only did the legislature fail to overturn the decision by changing the law, but there never even was a bill introduced into the legislature to try to change it. Iowa, Nebraska, and Texas modeled their expanded law on that of Ohio, leading to a similar discriminatory application in those states.

The first cunnilingus conviction to stand was in 1917 in a case from North Dakota. In that state, the sodomy law had been expanded to cover any person who "carnally knows" another person "by or with the mouth" and this was the only reason the North Dakota Supreme Court could uphold the conviction.

In 1923, the Indiana Supreme Court ruled that cunnilingus performed on a minor could be prosecuted under the state’s sodomy law only because of the law’s provision outlawing masturbation of a person under age 21. The Court would not agree that such an act constituted sodomy.

In 1921, the English Parliament defeated a measure to outlaw "gross indecency" between females on the ground that hardly any women knew of such a thing.⁴⁹

Lesbians came into vogue, so to speak, in the 1920s. A series of novels and plays brought Lesbianism into general public consciousness, filling in the lack of knowledge the House of Lords believed to exist.⁵⁰ The Lesbian-themed play The Captive led to New York passing a law banning "sex perversion" as a theme for plays. Radclyffe Hall’s classic book The Well of Loneliness was prosecuted for obscenity both in England (successfully) and in New York (unsuccessfully).

In late 1927, after the publicity over The Captive, but before The Well of Loneliness was published, the Wisconsin Supreme Court reluctantly overturned a sodomy conviction for cunnilingus. The Court felt constrained to reach its decision solely because the state’s sodomy law clearly limited itself to oral manipulation of the "organ of any male person."

However, the next court to get a cunnilingus case decided differently. In 1935, the Oklahoma Supreme Court became the first in the nation to rule that cunnilingus was a "crime against nature." The Court gave absolutely no analysis for its conclusion. What was "unknown" to women in 1921 became dangerous knowledge by 1935 that had to be outlawed. Courts in Florida, Alabama, and Maine followed Oklahoma’s lead in the next 15 years. Before widespread public knowledge of Lesbianism, cunnilingus never was considered a species of the "crime against nature." After that knowledge was spread, it became consensus that cunnilingus was included in that historically narrower term.

Michigan added a new "gross indecency" section to its criminal code that covered sexual activity between two women in 1939, just four months after the Georgia Supreme Court ruled that an act of cunnilingus between two women did not constitute sodomy under that state’s unusually worded law.

Mutual Masturbation

Two states—Indiana and Wyoming—recognized, through statutory change, the masturbation of a minor to be sodomy, but not of an adult. In fact, an Indiana court overturned the sodomy conviction of adults for masturbation of each other.

Other states, such as Maryland and Oregon, used broadly worded sodomy laws that covered undefined terms such as "perverted practices" or "sexual perversity." Under this wording, Oregon courts held both mutual masturbation and urination to be coverable. Michigan opted for the term "gross indecency," which the state’s courts interpreted to include manipulation of another’s genitals.

Interfemoral Intercourse and Tribadism

In Plymouth Colony during colonial times, two men who frequently engaged in interfemoral intercourse were convicted of a lesser offense, the lack of penetration making a sodomy prosecution impossible.

The solitary reported case on interfemoral intercourse comes from Georgia and dates from 1938. The Georgia Court of Appeals ruled that the act did not constitute sodomy, since there was no penetration.

There are no reported cases in the United States concerning the applicability of sodomy laws to tribadism, but there is little doubt that its failure to conform to the historical definition of sodomy would render it not subject to indictment.

Mental Health

The coming out of a few people in the latter half of the 19th century, and the increasing reference to "feelings" or "attraction" for the same sex by individuals in reported medical literature, coupled with frequent, but understandable, references to loneliness or depression by these people in that unenlightened era, led medical science to conclude, based on flimsy evidence and small samples, that same-sex attraction was a form of mental illness, an "erotomania." Some doctors chose to criticize criminal laws covering consensual sodomitical acts, but no legislative body heeded their advice. These doctors argued that mental illness should not be criminalized, but, instead, "treated."⁵¹

In 1915, a California appellate judge was the first known to ponder homosexuality in an opinion. The judge believed that expert opinions were needed about sexual attractions, because "the normal man" would be unable to determine "the neurotic or orgastic effect of such indecent acts."

In 1917, when the North Dakota Supreme Court sustained a sodomy conviction for cunnilingus, it chose not to discuss the issue at length. Instead, it referred readers of its short opinion to Krafft-Ebing’s Psychopathia Sexualis⁵² to learn more.

In 1921, the Florida Supreme Court referred to men convicted of sodomy as "creatures" who "are called human beings."

By 1933, the idea of people engaging in sodomy being "abnormal" was so enmeshed in the minds of the public that a Pennsylvania appellate court noted that a man accused of sodomy asked to strip naked in the courtroom to prove that he was "normal."

The first attempt by legislators to deal with the mental health issue concerned sexual sterilization. It generally was assumed, without evidence, that insanity, epilepsy, mental retardation, and "sexual perversion" were hereditary. By sterilizing those with any of these traits, the thinking went, these traits would be eliminated from society.⁵³ Twenty-three jurisdictions never enacted sterilization laws,⁵⁴ but 33 did. Indiana pioneered a law in 1907 to authorize sterilization of "habitual criminals," which could include those convicted multiple times of consensual sodomy.

These sterilization laws fell into four categories.

The first is what might be called "therapeutic" laws. Under these statutes, generally only the insane or mentally retarded were subjected to sterilization. They clearly were without applicability to sodomitical activity. Fifteen states fell into this category.⁵⁵

The second category might be called the "undesirable" laws. These statutes had broader coverage in that any person thought to have unspecified characteristics that might be improved upon by sterilization could be subjected to the operation. Four states were in this category.⁵⁶

The third were the "criminal" laws. Persons convicted of any crime, certain crimes, or any crime multiple times, were permitted to be sterilized. There were seven states in this category.⁵⁷

The fourth were the "pervert" laws. In these jurisdictions, seven in total, persons could be sterilized if they were "moral degenerates" or "sexual perverts," sometimes even if they committed no crime.⁵⁸

Many of these laws fell when various courts ruled them unconstitutional. In fact, in the first 15 years from Indiana’s pioneering law, only one of eight challenged sterilization laws—that of Washington—was upheld by a court. The others were struck down either on the ground of lack of due process of law—not permitting those to be sterilized a hearing and a right to cross-examine witnesses against them—(although these laws were reenacted with due process guarantees)⁵⁹ or on the broader ground of liberty.⁶⁰

The liberty at issue was the right to procreate, reiterating the Victorian notion of sexuality. This same right to procreate would be raised by the United States Supreme Court when, in 1942, it struck down Oklahoma’s sterilization law that covered only criminals. This decision obliterated all of the "criminal" laws, but the "undesirable" and "pervert" laws were not affected by the decision.

Thus, frustrated by the courts in their effort to control such deviant criminal behavior as sodomy with sterilization laws, states turned increasingly to a method the courts generally approved—incarceration. Following an increase in crime, including sexual crimes, during the Great Depression,⁶¹ Michigan pioneered what generally was called a "psychopathic offender" or "sexual psychopath" law in 1935. Although these laws contained variations, generally they permitted states to keep in institutions for purposes of "treatment" those convicted of sexual crimes. In some cases, those sent to institutions need not have committed any crime, but merely be "sexually abnormal." Massachusetts, for example, permitted any citizen to report another for abnormal sexual tendencies and have that person committed for treatment. Since these laws required institutions for treatment as well as staff, their cost initially inhibited many states from enacting them, especially in the years just following the Great Depression. There were only five such laws passed before World War II, and only one during it.⁶²

Several things led to their multiplication. First, the Minnesota law was challenged rapidly after its enactment and, just 10 months after passage, the United States Supreme Court unanimously upheld its constitutionality.⁶³ Second, mobilization for the Second World War improved the economies of most states, permitting more of them to afford such laws. Third, and most important, following the War, the number of sex crimes increased dramatically, leading to hysteria in a number of places in the country and demands from a frightened public for action. Fourth, the national mood influenced by McCarthyism and his crusade against both communism and homosexuality created a receptive atmosphere. In the 12 years 1935-1946, only six such laws were enacted in the country, four of them in the Midwest. However, in the next 12 years, that number quintupled to 30 and included all geographic regions.⁶⁴

Unfortunately, thought rarely went into these laws and they simply did not work. States, even though improved in finances following the War, were unwilling to spend money on sex criminals, preferring to warehouse them. The laws generally were enacted only following spectacular sex crimes or in copy-cat fashion of other states, in effect promising more than they could deliver to assuage a frightened public. Also, no one was quite sure if there was such a thing as a "sexual psychopath." The medical community was divided over terminology. Despite these problems, legislators continued to enact and expand psychopath laws, reacting to constituent pressure for a quick solution to the problem of sex crimes.⁶⁵

Whatever promise may have been inherent in the heady, early days of these laws vanished. The McCarthy era, continuing shocking sex crimes, and the emergence of an identifiable Gay community contributed to increasing harshness. In the early 1950s, while Joseph McCarthy still was riding high, both Ohio and Michigan expanded their laws to cover misdemeanor sex offenses. Ohio went so far as to cover any misdemeanor "in which abnormal sexual tendencies are displayed." Conceivably, this could cover jaywalking after leaving a Gay bar. Some of these laws led to Kafkaesque nightmares for those processed under them.⁶⁶

The laws were dismal failures. Analyses of the operation of the laws of Illinois,⁶⁷ Indiana,⁶⁸ Iowa,⁶⁹ Massachusetts,⁷⁰ Nebraska,⁷¹ New Hampshire,⁷² and Wisconsin⁷³ showed that the laws were used, not to treat violent or predatory individuals, but rather to warehouse people not even remotely dangerous to others, and who merely violated a moral code.

The Minnesota law had been upheld by the United States Supreme Court in 1940, largely based on speculation that the state would use the law’s procedures wisely and with great fairness. By 1967, after sometimes draconian changes were made in these laws, the unanimous vote to uphold the Minnesota law became a unanimous vote by the same court to strike down the Colorado law. Pennsylvania’s law soon after also was invalidated by a court. In 1968, Vermont and Michigan, two of the pioneer states in enacting psychopath laws, became the first to repeal them. Today, all but one state either have repealed the laws, limited their applicability to sexual activity with children, or had them rendered innocuous by repealing consensual sodomy laws, or by having the triggering sodomy laws invalidated by a court.⁷⁴

Privacy

The concept of a privacy right for consensual sexual activity actually is of recent vintage. The Washington Constitution of 1889 and that of Arizona from 1910 contained identical meaningless rights of privacy: "No person shall be disturbed in his private affairs, or his home invaded, without authority of law." Thus, the right to privacy in a citizen’s house must bow to any legislative curiosity about what goes on in the house.

Early claims to such a right in sodomy cases met with uniform rejection by courts. In 1923, two New Jersey men arrested under the state’s "private lewdness" law for consensual sexual relations in one’s home claimed that their activity, occurring in private, did not "debauch the morals and manners of the people." The New Jersey Supreme Court disagreed, saying that acts which would debauch the public morals were illegal whether committed in public or private. Of course, using this logic, marital intercourse would be illegal in private since, if it occurred in public, it would debauch the public morals. In 1926, the Wisconsin Supreme Court rejected the claim of a woman arrested for sodomy with a man that police had no right to enter her home for such a purpose. The Court said that, if it agreed with her, it "would seriously embarrass the enforcement of law, and license the defendant and her kind to continue their abominable practices under the protection of the law."

The first explicit privacy claim arose in 1944 in Arizona in a case in which a man was prosecuted for consensual fellatio with another man in his own home. He protested that "the privacy of his home" had been invaded. The argument was disposed of by the Arizona Supreme Court by being ignored. Numerous other shocking examples of privacy violations were ignored by appellate courts in their rush to uphold sodomy convictions.⁷⁵ In none of them was a privacy claim raised.

Married couples were not immune. In 1948, the California Court of Appeals sustained the oral copulation conviction of a married couple after photographs of the couple’s consensual activity in their own home fell into the hands of police. The couple never raised a privacy issue and the California Supreme Court refused to review their case.

The issue of privacy for consenting adults came into play with the publicity received by Alfred Kinsey’s pioneering research into human sexual activity. In two volumes published in 1948⁷⁶ and 1953,⁷⁷ Kinsey shattered prevalent myths about human sexual behavior. Most importantly, he revealed that sexual activity and physical attraction between persons of the same sex was far more common than thought. His first volume aroused "new popular interest in the status of our sex law"⁷⁸ as well as much controversy.

Just a year following the first Kinsey study, the Utah Supreme Court became the first to address some of the concerns Kinsey and others raised about human sexual behavior. The "wisdom of declaring their [homosexuals’] conduct to be criminal may be seriously questioned." Less than a decade later, the Hawaii Supreme Court noted that there had been "much" criticism of "making a crime out of homosexual or other unnatural sexual relations," but it was a matter for a legislature, not a court, to address.

In opposition to the Kinsey side of the question was Senator Joseph McCarthy and his crusade against communism and homosexuality in the federal government.⁷⁹ Legislative reaction, reflecting the conflict between Kinsey and McCarthy, was mixed.

In the seven years after the first Kinsey work was published, five states—Arkansas, Georgia, Nevada, New Jersey, and New York—lowered their maximum or minimum penalty for sodomy, with New York becoming the first to change its status from a felony to a misdemeanor. The preamble to Arkansas’s law of 1955 lowering the minimum penalty from five years to one noted the difficulty the state was having in securing convictions for (presumably consensual) sodomy with the five-year minimum. Massachusetts and South Dakota toned down their extreme psychopath laws. California eliminated "sexual perverts" from the list of those subject to the state’s sterilization law.

On the other hand, some laws became more harsh. Congress outlawed sodomy in the District of Columbia (finding the common-law crime provision insufficient), Hawaii enacted a disorderly conduct provision that covered men soliciting other men, California pioneered a sex offender registration law including consensual sodomy, Wisconsin outlawed newspaper coverage of crimes of sodomy, and Michigan and Ohio both expanded their psychopath laws to cover misdemeanors, while Washington eliminated the impressive civil liberties provisions from its psychopath law. Also during this time, Arizona, California, and Wyoming raised their sodomy penalties, with California now allowing a sentence of life imprisonment for consensual activity.

Increasingly, however, the focus on sex crimes changed from preserving an ideal of chastity to protection of children and adults from assaultive and manipulative sexual activity. This may have been a "lesser evil" situation. Since assaults seemed to be more common, the public and prosecutors were more amenable to focus on them, especially considering the devastating information revealed by studying the results of psychopathic offender laws. Psychopath laws enacted after the McCarthy era tended to place their focus on sexual activity with minors, especially the pre-pubertal.⁸⁰

After the public had some time to consider the Kinsey statistics, the American Law Institute published sections of a Model Penal Code in 1955. The sexual offenses provisions advocated repeal of consensual sodomy laws, but retained and expanded protections for children and for adults from unwanted sexual activity.⁸¹

Contradictory strains in society ran through the 1950s and 1960s. On the one hand, the Kinsey studies and the American Law Institute’s Model Penal Code pushed toward a libertarian attitude on sex. McCarthy had been discredited and censured by his colleagues. On the other hand, legislative bodies moved slowly, unwilling to move in a direction that might be found controversial by constituents still in the grip of the remnants of McCarthyism and yet adjusting to Kinsey’s startling findings.

For example, it just so happened that Wisconsin was debating a comprehensive criminal code revision in 1955 when the Model Penal Code was recommended. Rather than follow the advice of the Code, the Wisconsin legislature retained sodomy as a felony and expanded its coverage to include cunnilingus.⁸²

The next opportunity for reform came in 1957 when the Virgin Islands adopted a new criminal code. As with Wisconsin, the Virgin Islands refused to move the way the American Law Institute recommended. The felony sodomy law was retained and broadened to cover oral sex, something it previously had not recognized.

In the 1960s, the Code’s advice also was rejected by New Mexico, New York, Minnesota, Georgia, and Kansas when those states adopted new criminal codes. Although the non-sexual provisions of the Code largely were followed, as were the sexual assault provisions, allowing freedom to consenting adults still was controversial. Fifteen years after publication of the Model Penal Code, only Illinois and Connecticut had followed the recommendation to eliminate consensual sodomy as a crime. A poll taken that same year, 1970, showed that nearly 86% of the U.S. population believed that same-sex sexual activity, even between people in a loving relationship, was "sometimes," "almost always," or "always" wrong.⁸³ It is small wonder the legislative bodies tread lightly.

Because vestiges of Biblical, Puritan, and Victorian morality obviously remained, privacy invasions in sexual matters could be chipped away only slowly. The first to receive such rights, although not without limitations, would be the least morally controversial to society—married couples.

The earliest right of privacy for married couples would be found by an Ohio court in a divorce case. In 1957, a divorce was denied a woman seeking to end her marriage to a man who wanted both fellatio and cunnilingus to be part of their sexual intimacy. The court said, in dictum, that "the private moral relationship between husband and wife...(as to either cunnilingus or fellation [sic])...rests entirely in the minds of the two of them."

A clearly enunciated, but limited, right to privacy in sexual matters would not be made by the United States Supreme Court until 1965 in its landmark decision, Griswold v. Connecticut.⁸⁴ The case concerned a law of Connecticut, similar to those of other states, that forbade dissemination of birth control devices. Of greater interest than Justice Douglas’s superficial opinion for the Court striking down the law is the far longer concurring opinion of Justice Arthur Goldberg⁸⁵ that comprised the first in-depth analysis of the Ninth Amendment. After citing the words of James Madison, its author, in explaining its purpose of guaranteeing rights not specifically mentioned elsewhere in the Constitution,⁸⁶ Goldberg believed that the test as to whether some activity was protected by the Amendment was the

traditions and [collective] conscience of our people" to determine whether a principle is "so rooted [there]...as to be ranked as fundamental." [Quoting Snyder v. Massachusetts, 291 U.S. 97, at 105].⁸⁷

He added that the Court’s decision should not be interpreted as interfering with "a State’s proper regulation of sexual promiscuity or misconduct."⁸⁸ He then quoted from Justice Harlan’s dissent in a previous contraception case, that the Court had ducked on the issue of standing, that "[a]dultery, homosexuality, and the like are sexual intimacies which the State forbids[.]" [Emphasis added].⁸⁹

In Puritan beliefs, even sexual activity between married couples was evil, although an evil necessary to propagate the race. In "moral" families, sexual relations between spouses were limited to reproduction efforts at a frequency of perhaps once a month. A popular movement in the late 19th century labeled as a prostitute any woman who had sex with her husband for any other reason.⁹⁰ During his divorce trial in 1927, actor Charlie Chaplin was confronted with a charge that oral sex was part of his marriage to Lita Grey, and that was considered sufficient reason to divorce.⁹¹ The same year, the Utah Supreme Court was faced with a case in which disinherited children of a decedent argued that the fellatio and cunnilingus in which he engaged in his marriage rendered him insane.⁹²

So, it should be no surprise that marital exemption from sodomy laws is a new concept. Convictions for consensual activity between married spouses in their own home have been affirmed⁹³ and other courts have rejected marital exemption both before⁹⁴ and after⁹⁵ the Griswold decision. However, since Griswold, a number of courts have decided that the Supreme Court’s decision meant that the state’s sodomy law could not be applied constitutionally to married couples.⁹⁶

The first statutory exemption for married couples occurred in New York when it adopted a new criminal code just six weeks after Griswold was decided. Rather than start a marital exemption stampede, only four states since have followed its lead.⁹⁷

Seven years after Griswold, a plurality of the Court decided in Eisenstadt v. Baird⁹⁸ that the right of privacy concerning use of contraceptive devices extended to the unmarried as well as the married. This highly overrated case actually decided very little. First, as stated above, the case was decided by a plurality, rather than a majority of the Court. Only seven members sat for the case and, although six of the seven voted to overturn Baird’s conviction, only four did so on constitutional grounds. Second, the plurality opinion of Justice Brennan limited itself to the sexual privacy of deciding "whether to bear or beget a child."⁹⁹

Although the Supreme Court in Hardwick said, regarding the dismissal of the heterosexual co-plaintiffs from the case, "We express no opinion on the constitutionality of the Georgia statute as applied to other acts of sodomy,"¹⁰⁰ it has allowed prosecution of heterosexual activity. In 1975, in Rose v. Locke,¹⁰¹ after both Griswold and Eisenstadt, the Court voted 5-3 to uphold Tennessee’s sodomy law in a case challenging its applicability to heterosexual cunnilingus. On other occasions, the Court let stand lower court rulings that seemed to exempt, in one case married couples and, in the other, consenting heterosexuals from sodomy laws,¹⁰² and on other occasions refused to review a lower court decision deciding the opposite.¹⁰³

Several courts expressly have rejected the contention that heterosexual activity was not covered by sodomy laws both before¹⁰⁴ and after¹⁰⁵ Eisenstadt. Other courts have upheld convictions for consensual heterosexual activity both before¹⁰⁶ and after¹⁰⁷ Eisenstadt.

Taking Griswold and Eisenstadt together, some courts have decided that consensual heterosexual sodomy is constitutionally protected, whether the parties are married or unmarried.¹⁰⁸ Some states also revised their sodomy laws so that they became applicable only to activity between people of the same sex. Kansas began this unfortunate trend in 1969. Seven other jurisdictions followed suit.¹⁰⁹ These jurisdictions found a creative way to rationalize heterosexual desire for long-banned activity by making it seem normal and acceptable, as if society always had accepted heterosexual sodomy. Some courts also have rejected challenges to facially neutral laws against discriminatory enforcement claims.¹¹⁰ In none of the cases was any analysis given by the court.

This certainly does not square with history. The eighteenth-century Wiseman case from England found that heterosexual sodomy was indictable despite the wording of the English law as referring only to activity between males. Justice Fortesque, trying the case, was

exceeding sorry, that such a gross Offence should escape without any Punishment in England; when it is a Crime punishable with Death and burning at a Stake, all over the World besides.¹¹¹ [Emphasis his].

Thus, even though the statute did not contemplate opposite-sex sodomy, that act was of such a heinous nature that it should be prosecuted as well. In fact, heterosexual sodomy was the greater evil. A male committing such an act with a female instead of another male "only makes it more inexcusable." [Emphasis added].¹¹² Sodomy with a woman

seems worse that than [sic] of a Man or a Beast; for it seems a more direct Affront to the Author of Nature, and a more insolent expression of Contempt of his Wisdom, condemning the Provision made by him, and defying both it and him.¹¹³

In 1916, when Virginia amended its sodomy law to permit prosecutions for oral sex, it, for some reason, limited that portion of the law to people of the same sex. When the Virginia Supreme Court got a heterosexual oral sex case before it, it had no choice but to reverse the conviction owing to the clear statutory limitation. It lamented that it couldn’t uphold the conviction and urged the legislature to expand the law to cover opposite-sex activity. This the legislature did speedily.

However, by 1990, the Maryland Court of Appeals could erase its own case law that heterosexual activity and married couples were covered by the state’s sodomy and "unnatural and perverted practices" laws and say that they not only did not cover either type of activity, but never had. The Court, wanting such an exemption, ignored its own previous decisions to the contrary and legislated one from the bench.

Oddly, sexual activity has been granted one location for constitutionally protected performance—the public restroom. Beginning with a decision by the California Supreme Court in 1962, and continuing with numerous others throughout the United States, enclosed or, in some states, enclosed and locked restroom stalls are places where consensual sodomy is sacrosanct from prosecution.¹¹⁴ In other cases, parked cars have been held to be private places,¹¹⁵ as have a Gay bath house,¹¹⁶ and shrubbery.¹¹⁷ Because of the sexual segregation of restrooms and bath houses, these decisions effectively permit only homosexual activity the standing to claim a right to privacy.

The approach of granting "privacy" rights to quasi-public places, but denying them to a person’s own home escapes rational analysis. In effect, the courts are saying that a person’s home, a place granted clear protection from unreasonable searches and seizures by the Fourth Amendment, has enjoyed a long history of being available to police and prosecutors for inspection of consensual sexual activity occurring therein, but that a public restroom stall, parked car, or shrubbery was contemplated by the writers of the Constitution as a hallowed place where police dare not tread. Home was where both Michael Hardwick and John Lawrence were arrested.

One can conclude that judges and legislators are filled with as many emotional conflicts concerning human sexuality as is the public at-large. Since 1970, eight states¹¹⁸ have adopted specific privacy rights amendments to their constitutions. Even this doesn’t necessarily do the trick. The Hawaii Supreme Court decided that, privacy amendment or no, consensual sodomy remained unprotected by the state constitution and, even though the legislature had repealed the sodomy law, its reenactment would not be barred by an explicit right to privacy.¹¹⁹ The Louisiana Supreme Court also rejected the claim that the state’s explicit right to privacy protects sexual privacy. The Court went so far as to suggest that voters adopting the privacy amendment actually were voting for the "liberty" of protecting the right of the legislature to outlaw consensual sexual activity.¹²⁰ The Florida Supreme Court has found that the state’s privacy amendment doesn’t prevent the government from outlawing "obscene" materials.¹²¹ In effect, the courts are too comfortable with regulating private morals to allow privacy provisions in constitutions to interfere with them.

Granting privacy rights to activity occurring in a home adds permanence to that activity, enmeshing it with affection. Sexual activity in a restroom stall, on the other hand, deals only with fleeting pleasure, something that can be denied once it is finished. Permitting, for example, men to engage in sodomy in a restroom stall and then go home to their wives and closeted existence helps to deny the reality of the reason for that sodomitical act. However, allowing two men or two women voluntarily to engage in such activity in a home that the two of them have established and in which they hold themselves out as an affectionate couple challenges the insecure.

With the so-called sexual liberation of the last few decades, the focus of insecurity about sexuality increasingly has been shifted toward same-sex activity. After all, heterosexuals still can claim that non-procreative sexual activity doesn’t preclude them from procreating when they choose, something that inherently is impossible for same-sex activity, regardless of the level of affection that accompanies it. As far as heterosexuality is concerned, the immutable conflict between the sexes, fear of having "abnormal" sexual desires, and anxieties about sexual performance and body image all can be subverted intermittently by a belief that sexual activity may, after all, lead to reproduction.

Moreover, medical technology existing since 1978 with the birth of the first test-tube baby has made any claim to heterosexuality’s necessity invalid. Sexual activity no longer is needed for reproduction. The law, in order, like the traveler, to be ready for the morrow, must recognize that fact.

Our forefathers’ sensibilities were grounded in ignorance and religious prejudice. Paying homage to barbarian treatment of natural sexual instincts that all persons possess reflects continuing insecurity with ourselves.

Our own sensibilities will be handed to the next generation. Consider the hangings, the floggings, the long years of imprisonment, the humiliation, the suicides, for which our society has been responsible here in the United States of America, all because of the expression of physical affection between two consenting persons. It was a form of madness that was the sensibilities of our forefathers.

It appears that the U.S. Supreme Court may have done some deeper thinking on these subjects in the years after the Hardwick case was decided, or may have had some of these issues pointed out to them. Certainly, the individual Justices have been affected by having openly Gay and Lesbian clerks in recent years.¹²² After the Hardwick case, the Court handed down some respectful decisions concerning the rights of sexual minorities.¹²³

 

No decision, however, was more respectful of the Gay and Lesbian citizenry of the United States than was that in 2003 of Lawrence et al. v. Texas.¹²⁴ The Court confessed error in the Hardwick case, noting that it was in violation of the Court’s precedents on privacy at the time it was decided and chided the majority in that case for its conclusions, stating that the “historical premises are not without doubt and, at the very least, are overstated.”¹²⁵ In this case, the Court no longer merely used respectful language toward the Gay and Lesbian community. It stated that the Constitution demanded such respect by the government.

The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.¹²⁶

 A sea change in the law occurred once the Supreme Court stepped out of the past.

This work is divided into five time eras. The first, The Colonial Period, covers the years 1607-1776, from the founding of Jamestown Colony to the Declaration of Independence. This was the time of English law and peak Puritan influence.

 

The second, The Post-Revolution Period, covers the years 1776-1873, from the Declaration of Independence to a year in Victorian times that represented both the repeal of the last capital sodomy law and the enactment of the Comstock Act, the notorious law that put the government firmly in the business of censorship of “obscene” materials and that ushered in an era of repressive morality in the United States. During this period, many of the shackles of English law were thrown off and the United States developed its “Americanism.”

 

The third, The Victorian Morality Period, covers the years 1873-1948, from the Comstock Act to the publication of the first Kinsey Report. During this time was the peak of concern with “morality,” even though the period lasted long after Queen Victoria and Anthony Comstock were cold in their graves.

 

The fourth, The Kinsey Period, covers the years 1948-1986, from the first publication of Alfred Kinsey’s pioneering work on human sexuality to the decision of the United States Supreme Court in Bowers v. Hardwick. During this era, reform of sex laws was advanced on numerous fronts, leading to the repeal or court invalidation of a number of sodomy laws, not to mention a revolution in attitudes of many in society.

 

The fifth, The Post-Hardwick Period, covers the years from 1986 to the present from the date of the Hardwick decision that signaled a new era in sex law reform. The Court, dominated by Nixon and Reagan appointees, stated that the Constitution remained fixed in the Colonial era, thus throwing the impetus for reform to state legislatures and state courts exclusively. As a result, four more state laws were repealed by legislatures and seven others were struck down on broad constitutional grounds, all but one of them using the respective state constitution. These decisions generally were outspokenly critical of Hardwick.

 

The U.S. Supreme Court, having undergone a two-thirds turnover in membership within eight years of the Hardwick case, reversed itself in 2003 with Lawrence et al. v. Texas and struck down the 16 remaining sodomy laws in the nation.¹²⁷

 

It took until the twenty-first century for the legal nightmare begun in the colonies in the seventeenth century to be vanquished with an awakening from the gentle hand of liberty.

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Footnotes

¹ Bowers v. Hardwick, 478 U.S. 186, at 190.

² Id. at 192.

³ Id. The applicability of common‑law reception statutes to consensual sodomy has been obviated by the 2003 decision of the U.S. Supreme Court in Lawrence et al. v. Texas. Prior to Lawrence, consensual anal sex could have remained indictable in these jurisdictions, since anal sex constituted a crime under the common law. Since statutory consensual sodomy laws have invalidated, it is not possible for a state to use a common-law provision to prosecute consensual sodomy, either. Fourteen jurisdictions still recognize common-law crimes, which can criminalize other kinds of erotic behavior besides sodomy. They are the District of Columbia, Florida, Idaho, Maryland, Michigan, Mississippi, New Mexico, North Carolina, Rhode Island, South Carolina, Vermont, Virginia, Washington, and West Virginia.

⁴ David G. Savage, Turning Right, (New York:John Wiley & Sons, 1992), page 93.

⁵ Hardwick, at 196.

⁶ Griswold et al. v. Connecticut, 381 U.S. 479 (1965).

⁷ Loving et ux. v. Virginia, 388 U.S. 1 (1967).

⁸ Roe v. Wade, 410 U.S. 113 (1973).

⁹ Eisenstadt v. Baird, 405 U.S. 438, at 467.

¹⁰ Barnes v. Glen Theatre, Inc. 501 U.S. 560, at 590.

¹¹ Id.

¹² Id. at 197.

¹³ 16 Wall. 130, decided Apr. 19, 1873.

¹⁴ Id. at 141-142.

¹⁵ 163 U.S. 537, decided May 18, 1896.

¹⁶ Id. at 550.

¹⁷ 323 U.S. 214, decided Dec. 18, 1944.

¹⁸ Id. at 218-219.

¹⁹ "The Pentagon’s argument was that if the Japanese army landed in areas thickly populated by Americans of Japanese ancestry, the opportunity for sabotage and confusion would be great. By doffing their uniforms they would be indistinguishable from the other thousands of people of like color and stature." William O. Douglas, The Court Years 1939-1975: The Autobiography of William O. Douglas, (New York:Random House, 1980), page 279. Justice Hugo Black hid his prejudices from his opinion, but later was quoted: "People were rightfully fearful of the Japanese. They all look alike to a person not a Jap." Peter Irons, Brennan v. Rehnquist, (New York:Alfred A. Knopf, 1994), pages 83-86. It is curious to note that, at the time of the Korematsu decision, the Supreme Court had a 5-4 liberal majority. Four of the five liberals voted to uphold the racially based relocation.

²⁰ Michael Goodich, "Sodomy in Medieval Secular Law," Journal of Homosexuality, 1:295-302, at 297 (1976). A thorough analysis of the development of secular sodomy laws from religious fervor and racial animus is in Byrne Fone, Homophobia: A History, (New York:Metropolitan Books, 2000), pages 133-159.

²¹ Richard Davenport-Hines, Sex, Death and Punishment: Attitudes to sex and sexuality in Britain since the Renaissance, (London:Collins, 1990), page 59.

²² H. Montgomery Hyde, The Love That Dare Not Speak Its Name: A Candid History of Homosexuality in Britain, (Boston:Little, Brown & Co., 1970), page 37.

²³ Id. at 36.

²⁴ LeBarron v. LeBarron, 35 Vt. 365, at 367 (1862). An English case from the colonial era stated that "Christianity is part of the law[.]" Rex v. Curl, 2 Stra. 788 (1727).

²⁵ 25 Henry VIII c. 6.

²⁶ Hyde, at 5.

²⁷ Id. at 39.

²⁸ Id.

²⁹ Another jurist, conservative James Stephen, said, "A more disorderly mind than Coke’s and one less gifted with the power of analysing [sic] common words it would be impossible to find." James Stephen, A History of the Criminal Law of England, (London, 1883), Vol. II, p. 206.

³⁰ Hyde, at 38.

³¹ 5 Eliz. c. 17 (1562).

³² Hyde, at 40.

³³ There were a total of five documented death sentences in the colonies for same‑sex sodomy during the 1600s, two each in Connecticut and New York, and one in Virginia. In addition, there was another prosecution in New York in which the records do not show disposition of the case. There were a total of 162 known death sentences carried out in all the colonies during the century, making the five known for same-sex sodomy about 3% of the total. See Raymond Paternoster, Capital Punishment in America (New York: Lexington Books, 1991), page 4. In addition, according to Executions in the U.S. 1608-1987.: The Espy File, there were 10 known executions for sodomy, either buggery, bestiality, or type unknown, in the colonies between 1625 and 1674 (one in Virginia, two in New York, three in Massachusetts, and four in Connecticut). There also were five between 1757 and 1801 (three in New Jersey, one in Pennsylvania, and one under Spanish law in California.) The 83-year gap is curious, but there are claims (not in the Espy File) of three more death sentences carried out for sodomy between 1692 and 1743 (one each in New Jersey, Massachusetts, and Georgia.) The Espy file, a masterwork, can be accessed at www.deathpenaltyinfo.org.

³⁴ Leviticus 20:13.

³⁵ "[T]hat most horrid and detestable crime (among christians not to be named), called Sodomy." Davis v. State, 3 H. & J. 154, (Maryland Court of Appeals, 1810); "[N]o satisfactory reason occurs to us why the lesser form of this crime against nature should be covered by our statute, and the greater excluded, when both are committed in a like unnatural manner, and when either might well be spoken of and understood as being ‘the abominable crime not fit to be named among Christians’." Herring v. State, 46 S.E. 876, at 881-882, (Georgia Supreme Court, 1904); "[T]he word ‘sodomy’ is derived from the city of Sodom, where the crime against nature had its origin, and was universally prevalent until that city was destroyed by the wrath of God." Commonwealth v. Poindexter et al., 118 S.W. 943, at 944, (Kentucky Court of Appeals, 1909); "We cannot think upon the sordid facts contained in this record without being reminded of the savage horror practiced by the dwellers of ancient Sodom from which this crime was nominally derived." Parris v. State, 190 So.2d 564, at 565, (Alabama Court of Appeals, 1966). "The lawmaker who penalized the act in that wording and the judge who is to find guilty of its commission or is to charge the jury on its commission, have read the Holy Scriptures, the Genesis, the Deuteronomy; they know about Sodom, the ancient city of Palestine and its devious sexual practices; they have read Saint Paul, Epistle to the Romans and Saint Thomas - The Summa Theologica - which deal with the matter." People v. Santiago Vasquez, 95 P.R.R. 581, at 584-585, (Puerto Rico Supreme Court, 1967); "This commandment has become famous Biblical lore in the story of the destruction by fire and brimstone of the cities of Sodom and Gomorrah where the practice was prevalent." State v. Stokes, 163 S.E.2d 771, at 774, (North Carolina Supreme Court, 1968).

³⁶ This belief was repeated as late as 1858 by supposedly well educated members of the Indiana Supreme Court. Ausman et ux. v. Veal, 10 Ind. 355, at 357.

³⁷ Arthur Evans, Witchcraft and the Gay Counterculture, (Boston:Fag Rag, 1978), pages 76-77.

³⁸ William Blackstone, Commentaries on the Laws of England, Vol. IV (Oxford, 1769), page 215. Curiously, though Blackstone often has been cited as an authority justifying the existence of sodomy laws, most notably by Chief Justice Warren Burger in his concurring opinion in Bowers v. Hardwick, there is a long history of rejection of Blackstone as an authority. See Theodore Schroeder, Constitutional Free Speech Defined and Defended in an Unfinished Argument in a Case of Blasphemy, (New York:Free Speech League, 1919). As long ago as 1804, the English Lord Chancellor complained, "I am always sorry to hear Mr. Justice Blackstone’s Commentaries cited as an authority." (Id., at 90). It was believed that Blackstone was more widely read in the United States than in England (Id., at 91).

³⁹ Rex v. Wiseman, (1) Fortes.Rep. 91 (1717).

⁴⁰ Regina v. Jellyman, 8 C. & P. 604 (1838).

⁴¹ Hill’s Case, 1 East P.C. 649.

⁴² This decision remained unpopular in England and was overturned by legislation of Parliament. 9 Geo. IV c. 31, enacted June 27, 1828. The question continued to be raised in English courts and was settled with Rex v. Reekspear (1 Mood.C.C. 342, 1832) that only "the new act" of Parliament allowed Reekspear’s conviction to stand. He had ejaculated after withdrawing.

⁴³ Rex v. Jacobs, (1) Russell and Ryan’s C.C. 331 (1817).

⁴⁴ See, for example, Arthur N. Gilbert, "The Africaine Courts Martial: A Study of Buggery and the Royal Navy," Journal of Homosexuality, 1:111-122, at 122 (1974).

⁴⁵ Convictions were reversed in Prindle v. State, 21 S.W. 360 (Texas, 1893) and People v. Boyle, 48 P. 800 (California, 1897). Fellatio was found to be indictable in Commonwealth v. Smith, 14 Luz.L.R. 362 (1885), because the Pennsylvania sodomy law had been changed specifically to permit convictions for oral sex. Nevertheless, the conviction was reversed on other grounds. In Honselman v. People, 48 N.E. 304 (1897), the Illinois Supreme Court affirmed a fellatio conviction because of an obscure state law dealing with civil rights of those convicted of sodomy or other crime against nature.

⁴⁶ The "ancient rite of circumcision was brought to the notice of the [medical] profession as a remedy for certain ills of childhood" "a few years ago." Newton Melman Shaffer, "On Indiscriminate Circumcision," originally published in Annals of Anatomy and Surgery in May 1881, reprinted in Selected Essays on Orthopaedic Surgery: From the Writings of Newton Melman Shaffer, M.D., (New York:G.P. Putnam’s Sons, 1923), pages 543-549, at 543. By the end of the First World War, circumcisions had become "abundant." Douglas H. Stewart, "The value of the ‘no-good’—circumcision," Western Medical Times, 39:165-167 (1919); By the Second World War, male circumcision had become almost universal. Walter McMann, "Is routine circumcision of male children at birth justifiable?" Virginia Medical Monthly, 68:216-218 (1941). Also see John H. Gagnon and William Simon, "The Sexual Scripting of Oral Genital Contacts," Archives of Sexual Behavior, 16:1-25 (1987). In this study, oral sex was shown to be far more common among those who came of age between the years 1963 and 1967 (which would relate to birth years in the 1940s, a time of nearly universal circumcision) than among those who came of age between 1928 and 1943 (which would relate to birth years from the 1900s to the 1920s when circumcision was less common).

⁴⁷ Miss Marianne Woods and Miss Jane Pirie Against Dame Helen Cumming Gordon, (N.Y.:Arno Press, 1975).

⁴⁸ Foster et al. v. State, 1 Ohio C.C. 467, at 471-472 (Ohio, 1886); Ex Parte Benites, 140 P. 436, at 436-437 (Nevada, 1914).

⁴⁹ Jeffrey Weeks, Coming Out: Homosexual Politics in Britain, from the Nineteenth Century to the Present, (London:Quartet Books, 1977), pages 106-107.

⁵⁰ Jeanette Foster, Sex Variant Women in Literature, (New York:Vantage, 1956), pages 269-287.

⁵¹ J.C. Shaw and G.N. Ferris, "Perverted Sexual Instinct," Journal of Nervous and Mental Disease, 10:185-204 (1883); James G. Kiernan, "Perversion," Detroit Lancet, 7:483-484 (1884); [Author unknown], "Perverted Sexual Instinct," [New York] Medical Record, 26:70-71 (1884); G. Frank Lydston, "Sexual Perversion, Satyriasis and Nymphomania," Medical and Surgical Reporter, 61:253-258 (1889); C.H. Hughes, "Erotopathia—Morbid Eroticism," Alienist and Neurologist, 14:531-578 (1893).

⁵² Richard Krafft-Ebing, Psychopathia Sexualis, with special reference to contrary sexual instinct (1892).

⁵³ See the Oregon Journal, Feb. 2, 1917, 12:3; Harry H. Laughlin, "Eugenical Sterilization in the United States," Journal of Social Hygiene, 6:499-532 (1920); G.E. Worthington, "Compulsory Sterilization Laws," Journal of Social Hygiene, 11:257-271 (1925); "Sterilization Bill: The Eugenics Society’s First Draft," Eugenics Review, 20:166-168 (1928); Clarence Pierson, "Are We Sufficiently Progressed Scientifically for the Legal Sexual Sterilization of Inmates of State Institutions in Certain Cases?" New Orleans Medical and Surgical Journal, pages 350-357 (1930); Marie E. Kopp, "Surgical Treatment as Sex Crime Prevention Measure," Journal of Law, Criminology, and Police Science, 28:692-706 (1937-38); James B. O’Hara and T. Howland Sanks, "Eugenic Sterilization," 45 Georgetown L.J. 20 (1956-57); "Eugenic Sterilization," in Samuel J. Brakel and Ronald S. Rock (eds)., The Mentally Disabled and the Law, (Chicago:University of Chicago, 1971), pages 207-219.

⁵⁴ Alaska, American Samoa, Arkansas, Colorado, District of Columbia, Florida, Guam, Hawaii, Illinois, Kentucky, Louisiana, Maryland, Massachusetts, Missouri, New Mexico, Northern Mariana Islands, Ohio, Pennsylvania, Rhode Island, Tennessee, Texas, Virgin Islands, and Wyoming.

⁵⁵ Alabama, Arizona, Connecticut, Georgia, Maine, Michigan, Minnesota, Mississippi, Montana, New Hampshire, South Carolina, South Dakota, Vermont, Virginia, and West Virginia.

⁵⁶ Kansas, New Jersey, New York, and North Carolina.

⁵⁷ Delaware, Indiana, Nebraska, Nevada, Oklahoma, Utah, and Wisconsin. The Nebraska law covered males only and included those convicted of the "crime against nature." The Utah law covered only sexual crimes.

⁵⁸ California, Idaho, Iowa, North Dakota, Oregon, Puerto Rico, and Washington.

⁵⁹ Indiana, Iowa, Michigan, and Oregon.

⁶⁰ Nevada, New Jersey, and New York.

⁶¹ Karl M. Bowman and Bernice Engle, "Certain Aspects of Sex Psychopath Laws," American Journal of Psychiatry, 114:690-697, at 690 (1957-1958).

⁶² Michigan was followed by Illinois, Minnesota, Ohio, and California. Vermont enacted the only such law during World War II.

⁶³ Minnesota ex rel. Pearson v. Probate Court of Ramsey County et al., 309 U.S. 270 (1940).

⁶⁴ Alabama, California, Colorado, Connecticut, District of Columbia, Florida, Illinois, Indiana, Iowa, Kansas, Massachusetts, Michigan, Minnesota, Missouri, Nebraska, New Hampshire, New Jersey, New York, Ohio, Oregon, Pennsylvania, South Dakota, Tennessee, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, and Wyoming.

⁶⁵ See Sydney B. Maughs, "Psychopathic Personality: Review of the Literature 1940-47," Criminal Psychopathology, 10:247-275 (1949); Edwin H. Sutherland, "The Sexual Psychopath Laws," Journal of Criminal Law and Criminology, 40:543-554, at 553-554 (1950); "Report on Study of 102 Sex Offenders at Sing Sing Prison," New York Legislative Documents, One-hundred and seventy-third session 1950, Vol. VIII, No. 56 (1950); People v. Hector, 231 P.2d 916, at 920 and 920-921 (Doran, J, dissenting) (1951); Karl M. Bowman and Milton Rose, "A Criticism of Current Usage of the Term ‘Sexual Psychopath’," American Journal of Psychiatry, 109:177-182 (1952-53); Gordon R. Kamman, "Evolution of Sexual Psychopath Laws," Journal of Forensic Sciences, 6:170-179 (1961); Thomas M. Tyack, "The Validity of the Segregation of the Sexual Psychopath Under the Law," 26 Ohio St.L.J. 640 (1965); "The Sexual Psychopath and the Law," in Samuel J. Brakel and Ronald S. Rock (eds)., The Mentally Disabled and the Law, (Chicago:University of Chicago, 1971), pages 341-376; Psychiatry and Sex Psychopath Legislation: The 30s to the 80s, (New York:Group for the Advancement of Psychiatry, 1977), pages 840-844.

⁶⁶ In Illinois, the Attorney General ruled that the state was under no obligation to pay for the cost of hearings for prisoners initiating proceedings to have themselves declared recovered from their psychopathy. Thus, unless wealthy, psychopaths were doomed to remain warehoused as long as the state chose. Illinois Attorney General’s Report and Opinions 1958, page 174, No. 462. In Iowa, the Attorney General ruled that the law required psychopaths to remain in custody until cured. If never cured, they had to spend the rest of their life in custody. Report of the Attorney General of Iowa 1958, page 153, No. 15.2. In Michigan, sexual psychopaths were subjected, without their knowledge or consent, to experimentation with LSD. Irving Wallace et al., The Book of Lists #2, (New York:Morrow & Co., 1980), page 77. In Ohio, some adjudged psychopaths were given a dangerous drug with numerous possibly lethal side effects. Rudolph Buki, "A Treatment Program for Homosexuals," Diseases of the Nervous System, 25:304-307 (1964). Others were kept institutionalized long beyond the term they should have and frequently were subjected to physical abuse. Columbus Citizen-Journal, Apr. 24, 1971, 1:1; Apr. 27, 1971, 1:2; June 28, 1973, 21:4; June 30, 1973, 3:3.

⁶⁷ The Illinois law originally was used to process violent sexual offenders, but in the 1950s the state refocused on consensual sexual offenders. Lawrence T. Burick, "An Analysis of the Illinois Sexually Dangerous Persons Act," Journal of Criminal Law and Criminology, 59:254 (1968).

⁶⁸ In Indiana, 20% of those processed were for private consensual sodomy between adults, and one was a married man for "unnatural acts with "wife." Elias S. Cohen, "Administration of the Criminal Sexual Psychopath Statute in Indiana," Indiana Law Journal, 32:450 (1957).

⁶⁹ In Iowa, like Indiana, 20% of those processed were for private consensual sodomy between adults. One was a man who was Gay, but who had not been charged with any crime. The adjudged psychopaths were given only "occupational therapy and music therapy" and that only "to occupy their time." Samuel M. Fahr, "Iowa’s New Sexual Psychopath Law—An Experiment Noble in Purpose?" Iowa Law Review, 41:523 (1956).

⁷⁰ In Massachusetts, "a number of persons were committed without the proper legal safeguards of notice and a hearing." William J. Curran, ed., 1954 Annual Survey of Massachusetts Law, (Boston:Little, Brown & Co., 1955), at 245-247.

⁷¹ In Nebraska, about 7% of those processed were for private consensual sodomy between adults. One was committed for 2˝ years. Domenico Caporale and Deryl F. Hamann, "Sexual Psychopathy—A Legal Labyrinth of Medicine, Morals and Mythology," Nebraska Law Review, 36:320 (1957).

⁷² In New Hampshire, 34% of those processed were for fellatio, sodomy, and "homosexuality unspecified." One commitment was of a 12-year-old boy "because he and a 9-year-old boy compared the length of their genitalia[.]" G. Donald Niswonder, "Some Aspects of the ‘Sexual Psychopath’ Examinations in New Hampshire," New Hampshire Bar Journal, 4:66 (1962).

⁷³ In Wisconsin, 59% of those committed via a judge’s discretion (as opposed to mandatory commitment under a statute) were for sodomy. Anton Motz, "Criminal Law—Wisconsin’s Sexual Deviate Act," Wisconsin Law Review, 1954, page 328.

⁷⁴ Virginia was the last holdout, its law relevant until the Lawrence decision.

⁷⁵ The mother of a consenting partner had holes drilled into the bedroom wall of her son. People v. Funtas, 182 P. 785 ( California , 1919). A private investigator surreptitiously entered a home and hid under a bed. People v. Parisi, 87 Cal.App. 208 ( California , 1927). Sheriff’s deputies created a false roof on a cabin and hid in it. People v. Jordan et al., 74 P.2d 519 ( California , 1937). Investigators listened through a hotel door. People v. Brendle, 25 Cal.App.2d 161 ( California , 1938). A heterosexual couple was watched through a window by police from the roof of a nearby building. People v. Rayol, 65 Cal.App.2d 462 ( California , 1944). Two women were seen entering a motel and police came in through the motel window. People v. Manicap et al., 260 P.2d 137 ( California , 1953). A witness looked through a keyhole. State v. Gage, 116 N.W. 596 ( Iowa , 1908). Postal inspectors opened letters. State v. Nelson, 271 N.W. 114 ( Minnesota , 1937). A neighbor reported a Gay couple to police. State v. Edwards, 412 P.2d 526 ( Oregon , 1966). The earliest reference I have found referring to privacy in sexual matters was Samuel D. Warren and Louis D. Brandeis, “The Right to Privacy,” 4 Harvard L.Rev. 193 (1890). A brief discussion of the right to privacy in “sexual relations” is on page 196. It uses no limiting definition of “sexual relations,” effectively arguing for the right for all types of consensual relations.

⁷⁶ Alfred C. Kinsey et al., Sexual Behavior in the Human Male, (Philadelphia:W.B.Saunders, 1948).

⁷⁷ Alfred C. Kinsey et al., Sexual Behavior in the Human Female, (Philadelphia:W.B.Saunders, 1953).

⁷⁸ "Post-Kinsey: Voluntary Sex Relations as Criminal Offenses," 17 Univ.Chicago L.Rev. 162, at 163 (1949-50).

⁷⁹ One of the best sources for this material is David M. Oshinsky, A Conspiracy So Immense: The World of Joe McCarthy, (New York:The Free Press, 1983).

⁸⁰ In addition, Montana, while not enacting a psychopath law, amended its sodomy law to raise the minimum age to be considered an accomplice.

⁸¹ Model Penal Code, Tentative Draft No. 4, (Philadelphia:American Law Institute, 1955). See pages 276-291 for the discussion of and recommendation for decriminalizing consensual sodomy.

⁸² Also, a survey of the Connecticut legislature in 1956 showed that a solid majority of members opposed lowering the state’s 30-year maximum penalty for consensual sodomy.

⁸³ Eugene E. Levitt and Albert D. Klassen, Jr., "Public Attitudes Toward Homosexuality: Part of the 1970 National Survey by the Institute for Sex Research," Journal of Homosexuality, 1:29-43, at 31 (1974).

⁸⁴ 381 U.S. 479.

⁸⁵ Id. at 486-499.

⁸⁶ Id. at 489-490.

⁸⁷ Id. at 493.

⁸⁸ Id. at 498-499.

⁸⁹ Id. at 499. The earlier case was Poe v. Ullman, 367 U.S. 497, at 553.

⁹⁰ Milton Rugoff, Prudery and Passion, (New York:Putnam’s, 1971), pages 47-49.

⁹¹ Kenneth Anger, Hollywood Babylon, (San Francisco:Straight Arrow Books, 1975), pages 93 and 94.

⁹² In Re Ford’s Estate, 261 P. 15.

⁹³ Commonwealth v. Wiesner, 21 Lehigh L.J. 284 (Pennsylvania, 1945), People v. Doggett et al., 188 P.2d 792 (California, 1948), cert. den. by California Supreme Court; Lovisi et ux. v. Slayton, 363 F.Supp. 620; aff’d, 539 F.2d 349; cert. den., 429 U.S. 977 (Virginia, 1975). In Indiana, a man was prosecuted and confined as a psychopathic offender for "unnatural acts with wife." See Elias S. Cohen, "Administration of the Criminal Sexual Psychopath Statute in Indiana," 32 Ind.L.J. 450, at 453 (1957). In Ohio, a closeted Gay man arrested in a public restroom raid was asked if he and his wife engaged in sodomy because that was just as illegal. 1226 Ohio Supreme Court Briefs and Records 2d 38621. In addition, both Arizona and Oklahoma created statutory instructions for the prosecution of the "crime against nature" occurring within a marriage.

⁹⁴ Regina v. Jellyman, 8 C. & P. 604 (England, 1838); State v. Nelson (dictum), 271 N.W. 114 (Minnesota, 1937). A 1943 divorce case showed that marital sodomy was not exempt from criminal prosecution. A court doubted that a man had overheard a married couple planning "unnatural sexual intercourse." It doubted it because "[t]he nature of the offense, the ease with which it may be charged, the difficulty of disproving it, always require convincing corroboration by a disinterested and credible witness whose testimony bears the stamp of inherent probability. Blackstone, discussing the ‘infamous crime against nature’, says, ‘[it is] a crime which ought to be strictly and impartially punished’." Bates v. Bates, 33 A.2d 281 (Pennsylvania, 1943).

⁹⁵ State v. Schmit (dictum), 139 N.W.2d 800 (Minnesota, 1966); Hughes v. State, 287 A.2d 299; cert. den., 409 U.S. 1025 (Maryland, 1972); State v. Bateman, 547 P.2d 6; cert. den., 429 U.S. 864 (Arizona, 1976).

⁹⁶ Cotner v. Henry, 394 F.2d 873; cert. den., 393 U.S. 847, (Indiana, 1968); Jones v. State, 200 N.W.2d 587 (Wisconsin, 1972), reaff’d, State v. Mentek, 238 N.W.2d 752 (1976); State v. Lair, 301 A.2d 748 (New Jersey, 1973); State v. Santos (by implication), 413 A.2d 58 (Rhode Island, 1980); State v. Holden, 890 P.2d 341 (Idaho, 1995).

⁹⁷ Alabama, New Hampshire, Pennsylvania, and Utah. The New Hampshire sodomy law since has been repealed and those of New York and Pennsylvania have been ruled unconstitutional, the latter because of the marital exemption. Only Alabama and Utah retained statutory exemptions at the time the Lawrence v. Texas decision was handed down.

⁹⁸ 405 U.S. 438, decided Mar. 22, 1972.

⁹⁹ Id. at 453.

¹⁰⁰ Hardwick, at 188, n.2.

¹⁰¹ 428 U.S. 48, decided Nov. 17, 1975.

¹⁰² Cotner v. Henry, 394 F.2d 873; cert. den., 393 U.S. 847 (Indiana, 1968); Post v. State, 715 P.2d 1105; cert. den., 479 U.S. 890 (Oklahoma, 1986).

¹⁰³ State v. Poe, 252 S.E.2d 843; cert. denied, 259 S.E.2d 304; appeal dismissed, 445 U.S. 947, (North Carolina, 1979); State v. Lopes, 660 A.2d 707; cert. denied, 133 L.Ed.2d 861 (Rhode Island, 1995).

¹⁰⁴ Lewis v. State, 355 S.W. 372 (Texas, 1896); Comer v. State, 94 S.E. 314 (Georgia, 1917); People v. Diaz, 35 P.R.R. 212 (Puerto Rico, 1926); Connell v. State, 19 N.E.2d 267 (Indiana, 1939); People v. Coleman, 127 P.2d 309 (California, 1942); LeFavour v. State, 142 P.2d 132 (Oklahoma, 1943); People v. Whitham, 94 N.E.2d 506 (Illinois, 1950); Territory v. Bell, 43 Haw. 23 (Hawaii, 1958); Daniels v. State, 205 A.2d 295 (Maryland, 1964); People v. Askar, 153 N.W.2d 888 (Michigan, 1967).

¹⁰⁵ People v. Vasquez, 39 Mich.App. 573 (Michigan, 1972); United States v. Dumas, 327 A.2d 826 (District of Columbia, 1974); State v. Santos, 413 A.2d 58 (Rhode Island, 1980); State v. Lopes, 660 A.2d 707 (Rhode Island, 1995).

¹⁰⁶ Edwards v. State, 208 N.W. 876 (Wisconsin, 1926); People v. Rayol, 65 Cal.App.2d 462 (California, 1944); Commonwealth v. Burkett, 11 D. & C.2d 654 and its companion case, Commonwealth v. Yingling, 19 Camb.Co.L.J. 141 (Pennsylvania, 1956); Christy v. United States, 261 F.2d 357; cert. den., 360 U.S. 919 (Alaska, 1958).

¹⁰⁷ Locke v. State, 501 S.W. 826; aff’d, 428 U.S. 48 (Tennessee, 1973); State v. Elliott, 551 P.2d 1352 (New Mexico, 1976); State v. Poe, 252 S.E.2d 843; cert. den., 259 S.E.2d 304; appeal dismissed, 445 U.S. 947 (North Carolina, 1979); Neville v. State, 430 A.2d 570 (Maryland, 1981).

¹⁰⁸ State v. Pilcher, 242 N.W.2d 348 (Iowa, 1976); Post v. State, 715 P.2d 1105; cert. den. 479 U.S. 890, (Oklahoma, 1986); Schochet v. State, 580 A.2d 176 (Maryland, 1990). The Maryland court stated that consensual homosexual sodomy was not constitutionally protected, whereas the Iowa and Oklahoma courts declined to decide the issue. Later decisions in both states went the same way as Maryland.

¹⁰⁹ Arkansas, Kentucky, Missouri, Montana, Nevada, Tennessee, and Texas. The unique Puerto Rico law outlaws anal sex between “human beings,” but other sexual activity only between those of the same sex. The Arkansas, Kentucky, Montana, and Tennessee laws were struck down by state courts before the Lawrence decision and the Nevada law was repealed before Lawrence.

¹¹⁰ United States v. Cozart, 321 A.2d 342 (District of Columbia, 1974); Sears v. State, 287 N.W.2d 785 (Wisconsin, 1980); Ray v. State, 389 S.E.2d 326 (Georgia, 1990).

¹¹¹ (1) Fortes.Rep. at 92.

¹¹² Id. at 93.

¹¹³ Id.

¹¹⁴ The precedent-setting case was Bielicki v. Superior Court of Los Angeles County, 371 P.2d 288 (California, 1962). Other cases reaching the same conclusion are: Byars v. Superior Court of Los Angeles County, 371 P.2d 292 (California, 1962); Britt v. Superior Court of Santa Clara County, 374 P.2d 817 (California, 1962); State v. Bryant, 177 N.W.2d 800 (Minnesota, 1970); Kroehler v. Scott, 391 F.Supp. 1114 (Pennsylvania, 1975); People v. Dezek et al., 308 N.W.2d 652 (Michigan, 1981); People v. Kalchik, 407 N.W.2d 627 (Michigan, 1987); City of Tukwila v. Nalder, 770 P.2d 670 (Washington, 1989); State v. Limberhand, 788 P.2d 857 (Idaho, 1990); Ward v. State, 636 So.2d 68 (Florida, 1994). In two states, the restroom stall doors must be locked as well as closed in order to create a private place. See Buchanan v. State, 471 S.W.2d 401 (Texas, 1971) and State v. Johnson, 536 N.E.2d 648 (Ohio, 1987). In Oregon, case law is now such that virtually any consensual sexual activity occurring in a public restroom is constitutionally protected, whether or not it occurs out of view of others. See State v. Casconi, 766 P.2d 397 (1988) and State v. Owczarzak, 766 P.2d 399 (1988).

¹¹⁵ State v. J.O. and F.C., 355 A.2d 195 (New Jersey, 1976); Commonwealth v. Ferguson, 422 N.E.2d 1365 (Massachusetts, 1981); State v. Culmsee, 754 P.2d 11 (Oregon, 1988); People v. McNamara et al., 578 N.Y.S.2d 476 (New York, 1991). This latter case apparently overruled sub silentio a previous case to the contrary, People v. Jose L., 417 N.Y.S.2d 655 (1979). Curiously, all but the New Jersey case concerned heterosexual activity.

¹¹⁶ State v. Alvarez et al., 42 Fla.Supp. 83 (Florida, 1975).

¹¹⁷ State v. Goldsmith (unreported), No. 83-01-002, Twelfth Appellate District (Ohio, 1983); United States v. Hoffman, New York Law Journal, Oct. 20, 1994, 1:3 (New York, 1994).

¹¹⁸ Alaska, California, Florida, Hawaii, Illinois, Louisiana, Montana, and South Carolina. In addition, Arizona and Washington have older, identical privacy provisions which are legally meaningless. Each authorizes a right to privacy for citizens to do anything the law allows.

¹¹⁹ State v. Mueller, 671 P.2d 1351 (1983).

¹²⁰ State v. Smith, 766 So.2d 501 (2000).

¹²¹ Stall v. State, 570 So.2d 257 (1990).

 

122 For a discussion of the effect of openly Gay and Lesbian law clerks for the Supreme Court Justices, see Joyce Murdoch and Deb Price, Courting Justice: Gay Men and Lesbians v. The Supreme Court, (New York: Basic Books, 2001), pp. 271-309.

 

123 Hurley et al. v. Irish-American Gay, Lesbian and Bisexual Group of Boston et al., 515 U.S. 557 (1995) and Romer v. Evans et al., 517 U.S. 620 (1996). In Hurley, the Court, though upholding the right of an Irish-American organization in Boston to exclude a Gay and Lesbian contingent, also upheld the reverse issue, saying that Gay and Lesbian groups can exclude others from private parades. The Court also decided that public parades can not exclude anyone because of the message presented, and it rejected the contention of the Irish-American group that the Massachusetts law banning sexual orientation discrimination in places of public accommodations was unconstitutional. All three points of law were decided by a unanimous vote. In this case, the Court for the first time used the words “Gay” and “Lesbian” and used a respectful tone throughout. In Romer, the Court voted 6-3 to strike down Colorado’s Amendment 2, which sought to exclude Gay and Lesbian people from the political process in the state. The Court found that no state can do this to any group based on the supposed unpopularity of that group.

 

124 539 U.S. ___.

 

125 Slip Opinion, at 11.

 

126 Slip Opinion, at 18.

 

127 Most reports before and after Lawrence was decided list 13 remaining states with sodomy laws, whereas the correct number was 14 (plus Puerto Rico and the U.S. military for 16 in the nation.) The discrepancy is caused by the erroneous omission of Michigan, based on a 1990 trial court decision striking down the operative state laws. That decision had precedent only in a single county, was not appealed, and was undermined by later decisions by the Michigan Court of Appeals (which has statewide jurisdiction) and the Michigan Supreme Court. Consequently, Michigan had a viable sodomy law until the day Lawrence was decided.

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