National Lesbian and Gay Law Association Testimony for Sodomy
Law Reform
Statement
on
Bill 10-30, The District of Columbia
Criminal Code Right to Privacy Amendment Act of 1993
by the
National Lesbian and Gay Law Association
before the
Committee on the Judiciary
of the
Council of The District of Columbia
January 29, 1993
The National Lesbian and Gay Law Association (NLGLA) is pleased for this opportunity to
testify on D.C. Bill 10-30, the District of Columbia Criminal Code Right to Privacy
Amendment Act of 1993.
Founded in 1988, NLGLA is the national association of lesbians and gay men in the legal
profession. Among its members are lawyers, judges, law students and legal professionals,
as well as local lesbian and gay bar associations and other legal organizations. NLGLA is
an affiliated organization of the American Bar Association with a voting seat in its House
of Delegates. NLGLA and our local affiliates have been active in civil rights and sodomy
repeal efforts in several jurisdictions. One of our national co-chairs is a long-time
District voter, and we are pleased that our members have been active on various
legislation before this Council.
The existing District criminal code, section 22-3502, makes it a felony, punishable by
$1,000 fine and 10 years imprisonment, for a person to engage in either gay or
heterosexual sodomy, whether oral or anal.
Although repealed earlier by the District Council, this
section remains in the code only because of the one-house congressional veto of District
legislation.
The bill under current consideration would leave the existing criminal code intact
while adding one sentence, "No act engaged in only by consenting persons 16 years of
age or older shall constitute an offense under this section."
This statement focuses on three topics.
Sodomy Laws Invade the Privacy Rights of All Americans and the Modern Trend Is Toward
the Repeal and Renunciation of Such Laws.
The conduct made a felony and punishable by 10 years imprisonment under the District's
sodomy law is an important aspect of private sexual expression for the general
heterosexual population as well as for lesbians and gay men. A 1983 study of 12,000 people
nationwide found that 90% of the married and unmarried heterosexual couples studied had
engaged in oral sex. P. Blumstein & P. Schwartz, American Couples 236 (1983).
This finding is fully supported by various other studies including C. Tavris & S.
Sadd, The Redbook Report on Female Sexuality (1977) and M. Hunt, Sexual Behavior
in the Seventies 198-99 (1974). A major Consumer's Union study reported that, after
reaching the age of 50, roughly half of men and women engaged in oral sex. E. Brecher, Love,
Sex, and Aaina: A Consumer's Union Report 358-59 (1984).
All of this private conduct occurs routinely with no harm to others, and, for that
reason, numerous legal and other authorities conclude that it should be left up to private
decision-making free from governmental interference.
In 1955, the American Law Institute published its draft Model Penal Code, recommending
that all private adult consensual relationships be legalized. The Institute carefully
notes that since "there is the fundamental question of the protection to which every
individual is entitled against state interference in his personal affairs when he is not
hurting others," the Model Penal Code "does not attempt to use the power of the
state to enforce purely moral or religious standards." ALI Model Penal Code,
Tentative Draft No.4277-78, 207 (1955).
Only 28 % of Americans live in the 15 states which have as restrictive a sodomy statute
as the District of Columbia does. Fifty seven per cent of Americans live in the 27 states
which have eliminated their sodomy laws since 1961 by either legislative or judicial
action. Another 7% live in Texas, where the trial court and the appeals court have struck
down the Texas sodomy statute—with the Texas Supreme Court set to rule this year. We
are confident that this Committee is prepared to lead the way in removing the sodomy
statute's shackles from private consensual behavior so that we in the District can join
the large majority of Americans who are free from this intrusion into their private
relationships.
The trend in American jurisdictions has been mirrored abroad where nearly all major
Western and industrialized nations have eliminated their sodomy laws. England and Wales
did so twenty-five years ago; Scotland in 1980. Northern Ireland's sodomy law was repealed
after it was found in violation of the European Convention on Human Rights and Fundamental
Freedoms, Dudgeon v. U.K., Eur. Comm'n H.R. 1, 35-36 (1980) and 45 Eur. Ct. H.R.
(Ser. A) 24 (1983), and a similar ruling has issued on the Republic of Ireland's statute, Norris
v. Ireland, 6/1987/129/180 (Oct. 26, 1988). Canada, Germany, France, Italy, Japan,
Norway, Sweden, Denmark, and the Netherlands have all repealed their sodomy statutes. In
fact, of the relevant jurisdictions, such laws have been retained only in South Africa,
the Isle of Man, the Channel Islands and Gibraltar. Thus the historical tradition of
proscriptions against sodomy has clearly given way to the social outlook that regards
sodomy laws as an affront to human dignity. The District's sodomy statute, certainly as
applied to noncommercial, private consensual behavior between persons above the existing
age of consent, has become an anachronism--one which the Council wisely struck from the
books struck but for the outside interference of Congress would already have been removed
from the books.
THE SODOMY LAW SPAWNS DISCRIMINATORY ENFORCEMENT AGAINST DISFAVORED MINORITIES AND
INDIVIDUALS AND ENCOURAGES COLLATERAL DISCRIMINATION AGAINST LESBIANS AND GAY MEN.
Precisely because the sodomy law criminalizes conduct
which is so widely practiced by both heterosexual and gay people—and just as many
people violate the law—it sets the stage for selective enforcement against disfavored
minorities and individuals. Obviously, the police do not—indeed, could not—even
attempt to ferret out and arrest every person who commits this felony; but the law remains
in force as a possible tool of harassment against otherwise completely law-abiding
citizens. Moreover, many District residents would be simply astounded to learn that the
intimate consensual behavior they routinely practice could place them in prison for a
decade.
The sodomy statute is similar to the vagrancy and loitering laws struck down in the
civil rights era because they were vague and the source of potentially discriminatory
enforcement against African-Americans, Latinos, Asian-Americans, civil rights activists,
and others out of favor with those in power. In Papachristou v. Citv of Jacksonville,
405 U.S. 156 (1972), for example, the United States Supreme Court struck down a
vagrancy/loitering statute because, among other reasons, it permitted and encouraged
arbitrary and erratic arrests and convictions, granted too much discretion to police
officers, and criminalized activities which by modern standards are normally considered
fully harmless.
The reform bill will reduce the opportunity for discrimination on the basis of sexual
orientation (and other prohibited grounds) and thus serves to enforce the District's Human
Rights Act (D.C. Code sec. 1-2501, et seq.). We urge that the reform bill include an
express acknowledgment of this as one of its purposes.
The District's sodomy law, even when not enforced, encourages collateral discrimination
against lesbians and gay men and potentially against other disfavored minorities as well.
Sodomy laws are used to justify the denial of associational rights to lesbians and gay
men. Though usually enjoined by the courts as violating the First Amendment, this form of
discrimination is deeply wounding and imposes profound human costs.
Sodomy laws have also been used to justify the denial of professional licenses to
lesbians and gay men. For example, the commission of an offense exhibiting "moral
turpitude" is a basis for denial of admission to the Bar in most states, and while
the District's Human Rights Act prohibits discrimination on the grounds of sexual
orientation in the granting of licenses, decriminalization of private consensual sodomy
removes a possible ambiguity from the District's licensure structure.
As reported as recently as two days ago in the Washington Post, sodomy laws have
been used to justify discrimination against lesbians and gay men in hiring for police
force positions. And although a spokesperson for the Metropolitan Police Force stated that
it does not ask applicants if they are gay, the existence of a sodomy law clearly is a
background problem. "Area Police Agencies Differ Widely on Hiring Homosexuals," Washington
Post B1, col. 2-6 and B6, col. 3-6 (Jan. 27, 1993).
In fact, the Post article itself reflects the discriminatory application of
sodomy laws to lesbians and gay men and the collateral effect on their police careers.
Both Virginia and the District have sodomy laws which apply, theoretically, with equal
force to heterosexuals. Yet it apparently did not occur to any of the police officials
interviewed to discuss the effect of such criminal conduct on the police careers of
heterosexuals.
Because sodomy laws have been used in this and in other kinds of collateral
discrimination, passage of the sodomy reform bill will further reduce discrimination
prohibited under the Human Rights Act. This provides additional reason for the Committee
to include in the bill a specific acknowledgment that this reduction in discrimination is
one of the reasons for the bill.
THE SODOMY LAW IGNORES THE MODERN DIVERSITY OF RELIGIOUS OPINION ABOUT PRIVATE
CONSENSUAL SEXUAL ACTS, INCLUDING THOSE BETWEEN PERSONS OF THE SAME GENDER, AND
IMPERMISSIBLY INTERJECTS CRIMINAL SANCTIONS INTO AN ON-GOING RELIGIOUS DISPUTE.
Widespread support for the equal rights of lesbians and gay men exists today among
Judeo-Christian religious bodies. Many major religious groups in America are today
embracing their gay and lesbian members and expressing their support for the equal civil
rights of lesbians and gay men. Many denominations have concluded that the condemnation
which was prevalent earlier in the twentieth century has become outmoded.
Whatever the stance of prior interpretations of the Bible and other religious thought,
there is an increasing acceptance of sexually active lesbians and gay men as not
inherently immoral individuals and as equal participants in religious endeavors.
The Protestant Episcopal Church in the U.S.A., the American Friends Service Committee, the
American Jewish Congress, the American Lutheran Church, the United Church of Christ, the
Unitarian Universalist Association, the Union of American Hebrew Congregations, the
Presbyterian Church in the U.S.A., and the General Board of Church and Society of the
United Methodist Church, among others, have all adopted statements supporting equal civil
rights for homosexual persons.
Most major religious denominations, whether they believe that homosexual sexual
expression is moral or immoral, strongly oppose criminal punishment for such conduct. As
one commentator noted, even the general issue of civil rights "initially involved the
decriminalization of homosexual practice between two consenting adults and ending police
harassment . . . "J. Melton, The Churches Speak on Homosexuality xxvi (1990).
The Presbyterian Church in the U.S.A., the General Board of Church and Society of the
United Methodist Church, the American Jewish Committee, the American Friends Service
Committee, the Unitarian Universalist Association, the Office of Church in Society of the
United Church of Christ, The Union of American Hebrew Congregations, and other religious
organizations believed so deeply that criminalizing such conduct is morally wrong that
they filed amicus briefs in the case wherein the Kentucky Supreme Court ruled that
Kentucky's law, criminalizing only homosexual acts, violated the Kentucky constitution's
guarantees of privacy and equal protection. Commonwealth of Kentuckv v. Wasson (90-SC-
SS8--TG) (1992). The Lutheran Church in America, the Reformed Church in America, and the
American Jewish Congress, among others, have also called for decriminalization of private
consensual homosexual activity.
Within the Roman Catholic Church, the National Federation of Priests' Councils has
declared "its opposition to all civil laws which make consensual homosexual acts
between adults a crime and thus urges their repeal." House of Delegates of the
National Federation of Priests' Councils, Resolution on Civil Rights of Homosexual Persons
(1974).
In the context of deploring "so called 'sodomy laws’" that are
"often enforced only upon the homosexual community," the Disciples of Christ
have urged the enactment of "legislation on local, state and national levels which
will end the denial of civil rights and the violation of civil liberties for reasons of
sexual orientation or preference." The Disciples of Christ resolution specifically
recognizes that "[t]he church, among other elements of society, has contributed to
the persecution and suffering of homosexuals, and it is its culpability in this regard
which provides one reason for seeking a more enlightened understanding." General
Assembly of the Christian Church (Disciples of Christ), Resolution Concerning Civil
Liberties of Homosexual Persons (1977).
Contrary views are still held by some religious organizations and will no doubt be
expressed in this hearing, but it is important to realize that these topics are matters of
profound dispute within the religious community, with the number of groups opposing equal
rights for homosexual persons and favoring sodomy laws steadily shrinking. Simply put, the
government has no business—and in fact, in our view, is constitutionally
barred—from weighing in on one side of that dispute with the coercive power of the
criminal law. Government should leave the issue of the morality of private conduct to
those individuals involved.
Finally, quite apart from their statements on homosexual persons, numerous religious
groups have emphasized that private sexual activities, heterosexual or homosexual without
distinction, must be left free from the intrusion of government.
The National Lesbian and Gay Law Association urges the speedy adoption of the sodomy
reform bill, modified to acknowledge expressly that one of its purposes is to reduce
discrimination prohibited under the Human Rights Act.
Affiliated with the American Bar Association
Member of the International Lesbian and Gay Association
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