Maryland Trial Judge Rules Sodomy Law Does Not Apply to Gays in ACLU Challenge, But
Sustains Solicitation Law
To: QUEERLAW@abacus.oxy.edu
Date: October 20, 1998
From: aleonard@nyls.edu (Arthur Leonard - Faculty)
Subject: *QL-ED*: Maryland sodomy ruling
Following is the article I have prepared for the November issue of Lesbian/Gay Law
Notes concerning last Friday's sodomy law ruling from Maryland – Art Leonard
Maryland Trial Judge Rules Sodomy Law Does Not Apply to Gays in ACLU Challenge, But
Sustains Solicitation Law
In a surprise to the parties, Maryland Circuit Court Judge Richard T. Rombro, ruling on
a motion by the defendants to dismiss for lack of standing, has construed the Maryland
sodomy law, 27 M.C. sec. 554, not to apply to private, consensual sex between adults of
the same sex. Williams v. Glendening, No. 98036031/CL-1059 (Baltimore City Cir.
Ct., Oct. 15, 1998). Rombro also ruled on the merits of a challenge to the solicitation
law, 27 M.C. sec. 15(e), rejecting the challenge.
This is a test case constructed by the ACLU of Maryland and the national ACLU Lesbian
& Gay Rights Project to challenge what remains of the state's sodomy law subsequent to
Schochet v. State, 580 A.2d 176 (Md. 1990), in which the state's highest court
construed the statute not to apply to private, consensual heterosexual sex in order to
avoid constitutional privacy concerns. The plaintiff group includes one man who had been
arrested for soliciting sodomy by a vice cop, to ensure that at least one member of the
plaintiff group could survive any challenge to standing. (The other members of the group
are gay and lesbian couples who expressed fear of possible prosecution and a non-gay
taxpayer who objected to the expenditure of public funds on enforcement of the statute.)
Inclusion of the arrestee necessarily led to including a challenge to the solicitation law
as well as the underlying sodomy law. The named defendants are the governor, attorney
general, the Baltimore police commissioner, the Anne Arundel County executive and the
county police chief.
The challenged sodomy statute provides, in pertinent part: "Every person who is
convicted of taking into his or her mouth the sexual organ of any other person or animal,
or who shall be convicted of placing his or her sexual organ in the mouth of any other
person or animal, or who shall be convicted of committing any other unnatural or perverted
sexual practice with any other person or animal, shall be fined not more than one thousand
dollars ($1,000.00), or be imprisoned in jail or in the house of correction or in the
penitentiary for a period not exceeding ten years, or shall be both fined and imprisoned
within the limits above prescribed in the discretion of the court." Court decisions
have construed this law to apply to both oral and anal sex. The solicitation statute makes
it unlawful "to ... solicit ... for the purpose of prostitution, lewdness or
assignation."
In their motion to dismiss, the defendants asserted that they should not have been
named as individual defendants; as plaintiffs are seeking injunctive relief, the
defendants claimed that it would be proper to name the state and county directly rather
than individual public officials. Judge Rombro agreed, and ordered that the state and
county be substituted as defendants.
The defendants also argued that none of the plaintiffs had standing to challenge the
sodomy law, asserting that there is no active enforcement of the statute against same-sex
adult couples having consensual sex in private. As to this, the court disagreed with
defendants, finding that it "cannot say that the concerns of these plaintiffs are not
real" in light of the possibility of prosecution and consequent loss of livelihood
and reputation. The court also noted that there are 24 separate prosecutory jurisdictions
in Maryland, so the assurances of the named defendants in this case that prosecution would
not be undertaken did not resolve the matter. The court was also persuaded by decisions in
other jurisdictions, most recently in Montana, finding that a similar test case plaintiff
group had standing to challenge that state's sodomy law.
The court then proceeded, without explaining why, to rule on the merits of the
plaintiffs' claim. The plaintiffs were seeking a declaration that the statute is
unconstitutional as applied to them; the defendants argued that the statute should be
construed to avoid the constitutional question that would be raised by prohibiting
homosexuals from engaging in conduct that is allowed for heterosexuals. The state itself
suggested that applying sec. 554 to same-sex couples would raise both equal protection and
privacy concerns.
Judge Rombro, following the approach of the court of appeals in Schochet, agreed
with the defendants that the statute could and should be so construed. "It cannot be
doubted, as Defendants concede, that there would be an equal protection violation if acts,
considered not criminal when committed by a heterosexual couple, could be prosecuted when
practiced by a homosexual couple. There is simply no basis for the distinction."
Thus, seeking to avoid the constitutional problem, "this court. . . will hold that
the statute as it is written does not encompass consensual, non- commercial, heterosexual
or homosexual activity between adults in private."
However, Rombro refused to strike down the solicitation statute, rejecting the
plaintiffs' argument if the underlying act is not illegal, then solicitation to commit the
act cannot be penalized either. Plaintiffs based their argument on People v. Uplinger,
447 N.E.2d 62 (N.Y. 1983), cert. dismissed, 467 U.S. 246 (1984), in which New York's
highest court held that, having invalidated application of the sodomy law to consensual
adult sex in 1980, it must thereafter invalidate a loitering statute as it applied to
charges of soliciting deviate sexual intercourse.
Rombro found the New York case distinguishable in various respects. First, he noted
that the Maryland law does not single out homosexuals, but rather prohibits all
solicitation for engaging in lewdness. "Clearly one segment of society is not singled
out." Next, the New York law was a loitering law, whereas the Maryland law focuses
directly on solicitation. Finally, the Uplinger court had noted that the
legislature could pass a law regulating offensive public conduct. "The Schochet
decision held that acts between consenting adults which were conducted in private are not
criminal," Rombro noted; "An unwanted solicitation is neither private nor
consensual."
"This court believes that the varied ramifications of a solicitation make it
inappropriate for a court to declare such a statute facially unconstitutional. Certainly
there is a difference whether the solicitation occurs in a bar, gay or straight, [or] in a
shopping mall. In the latter case, there is involved an element of harassment and
nuisance; cases arising from that set of facts usually come about because of merchant
complaints that their customers have received unwelcome overtures."
Rombro concluded by entering an order declaring that 27 M.C. sec. 554 "does not
apply to private, consensual, non-commercial sexual activity." Interestingly, as this
was an early stage in the litigation and the parties had not expected a ruling on the
merits in this dismissal motion, the court had not yet certified the case as a class
action. However, having substituted the state and county as defendants, it appears that
this order should have the effect of banning prosecutions under sec. 554 throughout the
state.
As we went to press, there was no announcement whether either the state or the
plaintiffs would appeal. As the court actually adopted the reading of sec. 554 urged by
the state while sustaining the constitutionality of the solicitation law, it seemed
unlikely the state would want to appeal. As the invalidation of sec. 554 as applied to
consensual sex would significantly undermine the justification for enforcing the
solicitation law in many circumstances, it is possible that the plaintiffs will conclude
that an appeal at this point is not necessary, although lack of an appeal means that there
will be no published appellate decision to cite in this case. (Perhaps the legislature can
be persuaded to revise the law so that it will explicitly apply only to public and/or
non-consensual sex, thus obviating any problem about reliance on an unpublished trial
court decision.)
Commenting on the decision, ACLU Project Director Matt Coles noted that sodomy laws are
frequently invoked by gay rights opponents to justify anti-gay discrimination. Now, at
least in Maryland, "they can no longer justify opposition to lesbian and gay rights
by saying that we are criminals once these laws are struck from the books." Lead
attorney on the case for the ACLU of Maryland is Dwight Sullivan.
Arthur S. Leonard, Professor, New York Law School
ALeonard@nyls.edu or ASLeonard@aol.com
212-431-2156
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