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Getting Rid of Sodomy Laws: History and Strategy that Led to the Lawrence Decision
Early Repeal of Sodomy Laws
Illinois became the first state in the U.S. to get rid of
its sodomy law. It did so in 1961, when it adopted an overall
revision of its criminal laws. The revision closely followed
the 1955 recommendations of the American Law Institute, a
group of distinguished lawyers and law professors. Idaho passed
a similar revision, but when the legislature discovered it
had repealed the sodomy law, it repealed the entire reform
package instead.
Connecticut followed Illinois's lead in 1971 and 19 more states
(Connecticut, Colorado, California, Delaware, Hawaii, Indiana,
Iowa, Maine, Nebraska, New Jersey, New Mexico, North Dakota,
Ohio, Oregon, South Dakota, Vermont, Washington, West Virginia,
and Wyoming) repealed their sodomy laws in the 1970's. Most
did it as part of a general reform of criminal laws. California,
which had a six year fight over repeal of the sodomy law,
was an exception. California's repeal finally passed in 1975
after a dramatic tie vote in the state Senate, where majority
leader George Moscone kept the vote open and the Senate in
session while a private plane could be dispatched to bring
back the Lt. Governor. He cast the tie breaking vote. Moscone,
later elected mayor of San Francisco, was assassinated in
1978 with Harvey Milk.
The First Challenge to Reach the U.S. Supreme Court
Constitutional challenges to sodomy laws were not uncommon
in the 50s and 60s. Most were aimed at laws against "the
crime against nature," and typically argued that these
laws violated due process because it was impossible to know
what they meant. None of those challenges succeeded.
The first challenge to a sodomy law to reach the U.S. Supreme
court was Doe v. Commonwealth Attorney of Richmond
in 1976. That case challenged Virginia's sodomy law as a violation
of the right to privacy. For technical reasons, the Supreme
Court was required to consider the appeal of this decision
upholding the law (in most circumstances, the Court only hears
cases it selects). Although the Court accepted neither written
nor oral arguments, its memorandum upholding the law is its
first decision in a sodomy challenge.
High Courts in New York and Pennsylvania struck down their
state sodomy laws in the 1980s, in both cases relying at least
in part on the federal constitution. Legislatures in Alaska
(80) and Wisconsin (83) continued the tread of repeals.
The Court Rules: Bowers v. Hardwick
Then, in 1986, the Court decided Bowers v. Hardwick. Bowers
was a challenge to a Georgia law which made oral and anal
sex a crime for everyone (same-sex and opposite-sex couples).
The case began when a police officer used a flimsy excuse
to barge into Michael Hardwick's bedroom one night. He found
him with another man, and arrested him.
Although the Georgia law applied to all couples, the Supreme
Court described the case as if it were about the constitutionality
of making intimacy a crime for same sex couples. Although
the Court said, as it had in the past, that there is an implied
right to privacy in the constitution, it said that right did
not invalidate the Georgia law. In a footnote, the Court said
that it was not deciding any issues about the equal protection
clause of the constitution.
The odd nature of the Bowers opinion -- that the Georgia
law and the right to privacy applied to everyone, but the
Court spoke again and again about gay people -- set off a
long running debate among lawyers. Did Bowers mean
that the right to privacy did not prevent states like Georgia
from making some kinds of private, adult sex a crime for everyone?
Or was the Court somehow making a ruling about the rights
of gay people, even though the law did not single gay people
out?
But what really made the Bowers decision stand out
was not the ruling about privacy so much as the tone -- utter
contempt. The Court said that it was "facetious"
to argue the fundamental right to privacy protected gay people,
and said that there was no connection between marriage, family
and heterosexual intimacy, and intimacy between same sex couples.
The Court's tone was not lost on lower courts. Bowers
became the justification in Court for every kind of discrimination
against gay people -- from discrimination in the military,
to discrimination in custody and visitation cases, to discrimination
in employment.
Worse, the Bowers decision became a potent political
tool for those who wanted to derail the movement for LGBT
equality. In debate after debate on everything from laws against
discrimination to domestic partnership, the Supreme Court's
decision in Bowers that intimacy could be made a crime
for gay people became the major justification of the opposition.
State Constitutions: The Post Bowers Strategy
After Bowers, activists continued to push state legislatures
to repeal their sodomy laws, but it was slow going. It was
seven years (1993) before another repeal (Nevada and the District
of Columbia). Rhode Island repealed in 1978, and Arizona in
2001.
In Court, activists turned to state courts, arguing that sodomy
laws violated state constitutions. State high courts have
the authority to rule that state constitutions give more protection
to individual rights than the federal constitution does. And
state courts did just that in Kentucky (Commonwealth v.
Wasson, 1992), Tennessee (Campbell v. Sundquist,
1996), Montana (Gryczan v. Montana, 1997) Georgia (Powell
v. State, 1998) and Minnesota (Lavender Bar v. Ventura,
2001).
The Federal Attack on Same-Sex Only Laws Begins
In 1995, the ACLU asked the U.S. Supreme Court to review the
case of a man from Oklahoma who has been arrested for asking
an undercover police officer to go home with him (People
v. Sawatzky). The Oklahoma courts had already ruled that
it would be unconstitutional to prosecute heterosexuals for
violating the state's sodomy law at home. Thus, the ACLU argued,
it would violate the constitution's promise of equal protection
to prosecute a gay man.
The Court refused to hear the Sawatsky case. But the
ACLU and Lambda decided to launch a concerted effort to get
a case challenging a law that made intimacy a crime for same-sex
couples only to the U.S. Supreme Court. The idea was that
a case like that would give the Court two options. It could
overrule Bowers v. Hardwick, and decide that the right
to privacy protects private intimacy for everyone. Or the
Court could decide that, putting aside the question of whether
states can make adult intimacy a crime, they can't say the
same act is a crime for some couples but not others. The Court
could base a ruling like this on the equal protection clause
-- the part of the constitution it said it was not considering
in Bowers.
The ACLU brought challenges in Kansas, Maryland and Puerto
Rico. Lambda brought cases in Arkansas, and, in Texas, the
Lawrence case.
The first Kansas case upheld the law (1998). Because the facts
weren't as clear as the challengers would have liked, they
decided not to appeal. The ACLU won its Maryland challenge
on equal protection grounds in the lowest court (1999). The
state, instead of appealing, consented to the judgment and
agreed that the law was invalid for all purposes.
Lambda won its challenge to the Arkansas law last year, when
the state Supreme Court struck down its law on state constitutional
grounds. Since the decision was based on state law, no appeal
to the U.S. Supreme Court was possible.
Earlier this year, the Puerto Rico Supreme Court dismissed
that challenge on technical grounds.
With the decision in Lawrence, the strategy has come
to its conclusion. The Court has sent the second Kansas case,
People v. Limon, back to the state courts for reconsideration
in light of Lawrence. (See "Cops
in the Bedroom" for more information on Lawrence
and Limon).
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