Strategies for Sodomy Law Repeal
Legislative vs. Judicial approaches
Several states have simultaneously sought repeal legislation and lawsuits to strike
down the sodomy laws, or have quickly switched from one to the other. Rhode Island, Nevada
and Montana all had both legislation and litigation.
Legislative repeals in the 1990s have required strong support for gay issues in the
legislature and a politically active gay community to lobby, write, call and visit
legislators. Most remaining sodomy laws are in southern states with small and
inexperienced organizations with strong opposition groups and conservative legislatures
and judiciaries.
Nationally, there are three organizations actively seeking the repeal of sodomy laws.
The ACLU & LLDEF as legal groups, favor litigation, while the National Gay and Lesbian
Task Force—supporting statewide political groups—generally works on legislative
approaches. Naturally all three organizations support repeal by either legislation or
litigation.
States with the best chances for legislative repeal are those with large and active gay
communities. Arizona, Florida, Massachusetts, Michigan, Minnesota, Missouri, North
Carolina, and Virginia top the list for most likely to achieve legislative repeals. New
York and Montana are seeking legislative repeal but have already won in court.
Arizona’s efforts are fairly recent and show tremendous promise in the very
conservative, but often libertarian legislature. The Arizona bill in recent years has
combined the cohabitation, adultery, and sodomy laws for repeal as archaic legislation.
This strategy blunts the anti-gay sentiment. In 1999, the Arizona house passed, and then
withdrew four amendments to a bill that would have repealed the archaic laws.
Florida does not have a specific sodomy law. According to Nadine Smith of Equality
Florida, a felony law used in the arrest of two men engaged in a sexual act in a car was
struck down as too vague to enforce in 1972. An accompanying 2nd degree misdemeanor
lewdness charge (800.2 Unnatural and Lascivious Act) was not dismissed but legal analysts
have agreed that other factors (such as the somewhat public nature of the activity) may
have triggered the charge rather than sexual orientation or specific activity of the men.
Smith is unaware of any Floridian going to court on this misdemeanor charge since the
passage of Florida’s Privacy Amendment in 1980—one of the strongest privacy
provisions in the country. However, the sodomy law has been cited in custody cases to
justify taking children from Gay and Lesbian parents.
A lawsuit challenging the ban on adoptions by homosexuals is working its way through
the Florida courts, but it is not clear what, if any, role the Unnatural and Lascivious
Act will play.
The primary focus of work to overturn the sodomy law has been through litigation, but
the lack of enforcement has made it difficult to find an "ideal" case to
challenge the constitutionality of the law. Other attempts to remove it with other
archaic, unenforced laws have failed to progress.
Smith does not believe that near–term prospects for legislative repeal are good.
Political organizing of the community is underway, but Smith said, "education is our
primary focus when it comes to the legislature on the issue."
Massachusetts probably has the single most receptive legislature, but the repeal bill
has been successfully blocked by well placed opponents who have bottled up the bill. As
shifts in the legislature occur, this bill is likely to be able to get a hearing and pass.
Michigan has an unreceptive judiciary, and a very conservative state legislature.
Despite lower court rulings in Michigan, higher courts are not thought to be good choices
for bringing sodomy lawsuits.
In Michigan Organization for Human Rights v. Kelley a trial court ruled
Michigan’s sodomy law unconstitutional under the state constitution. Arguably,
because the attorney general did not appeal that ruling, Michigan law makes it binding on
all state prosecutors, at least absent future litigation that might attempt to resuscitate
the sodomy statute. However, it is only clearly binding on Wayne County, the area in and
around Detroit.
Minnesota, Missouri, North Carolina and Virginia are able to introduce repeal
legislation but have thus far received only the cursory attention as the legislatures have
not seriously considered their bills.
Solicitation for Sodomy
Quite often, arrests are not made for sodomy, but for soliciting sodomy—asking
someone to perform sodomy—even in the confines of a private conversation—is
itself a crime, and often a felony. Arrests for solicitation are common in Kansas,
Missouri, Virginia, and North Carolina, among other states.
And even in states where sodomy is legal, such as Georgia, solicitation to engage in
sodomy may still be a crime for which local police and prosecutors say they will arrest
people and charge people.
- Dr. Franklin E. Kameny, a long-time gay rights activist, put an end to the solicitation
charges in Washington, DC in 1972 by writing to the top three law enforcement officials:
The US Attorney, The Corporation Counsel (equivalent to a City Attorney), and the Chief of
Police. He solicited all three for the act of sodomy of their choice as defined in the DC
law.
-
- He pointed out that "if (1) they chose to prosecute me, the prosecution would be
utilized to mount a challenge to the DC sodomy law; if (2) they chose not to prosecute,
then that would be used as a precedent in future prosecutions for such solicitations,
since if, with impunity and without arrest or prosecution, I could solicit the three top
law enforcement authorities of the District, then obviously anyone could solicit anyone,
and this would be made widely known and utilized. They did not prosecute. The effects were
highly salutory, both immediately and in the long term right up to the present."
-
- In December of 1998, in response to the arrest of 18 men on solicitation charges in
Roanoke, Virginia, Dr. Kameny "solicited for sodomy the entire adult population of
the state of Virginia, with particular emphasis on judges, prosecutors, and chiefs of
police, especially in Roanoke and Charlottesville" on radio station WZHF.
-
- He also sent a letter to the judges in the case, the prosecutor and the Roanoke Chief of
Police stating:
…I hereby solicit, urge, entreat and invite each of you
individually to engage with me in an act or acts of sodomy of your choice and as defined
by Section 18.2-361 of the Virginia Code, in some indisputably private place in the state
of Virginia, at a time of our mutual convenience.
…This letter will be published and publicized, with
intent to embarrass each of you individually and by name, and to bring you into public
contempt and ridicule nationally, as well as to make a contemptible laughingstock of your
benighted, barbaric, backward state of Virginia — and, most importantly, to provide
impetus for reconsideration and reform of Virginia’s antiquated laws on relevant
sexual offenses implemented judicially through the disposition of these 18 cases.
The four who have received letters have decided not to comment, but to continue the
case against the men who have been arrested. At least eight of the men plan to appeal
their cases and seek to have the sodomy law ruled unconstitutional.
Seven states consider consensual sodomy convictions serious enough to require the
registration of released convicts and notification of their neighbors as is done with
rapists and child-molesters: Alabama, Idaho, Kansas, Louisiana, Mississippi, Oklahoma, and
South Carolina.
Missouri defeated legislation in 1999 to add consensual sodomy to its sex offenders
registration program, commonly known as Megan’s Law. The Missouri Department of
Public Safety’s website would include the name, photograph, birth date, and address
of people convicted of consensual sodomy as a "persistent or predatory sex
offender."
Similar legislation was proposed in the District of Columbia, in June 1999, but was
removed by amendment in committee. Michigan is also considering such legislation.
The US Department of Justice issued regulations on the requirements of states to enact
Megan’s Laws. The regulations are clear that the federal law does not intend
requiring registration by people convicted of consensual adult sodomy.
"…some states appear to be imposing registration requirements on individuals
convicted of consensual adult sodomy. As the guidelines state, such offenses are not among
the offenses for which the Act requires registration, and registration of persons
convicted of such offenses would not further the Act’s objectives."
Repeal Strategies
The most fun you'll ever have in a pledge drive! The Bisexual
Resource Center presents the Sodomy
Challenge. Try this at home!
PDF files created by the Bisexual Resource Center:
Introduction and
Instructions
Pledge Form
Let us know if you create a Sodomy Challenge of your own! Do you have an
interesting strategy to repeal a law? Let me know. Email Bob Summersgill at info@sodomylaws.org.
