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Why Sodomy Laws Matter
How the Laws Were Used Traditionally
The recent decision in Lawrence v. Texas arises in
one of a mere handful of cases since the American revolution
involving two adults -- straight or gay -- actually prosecuted
for being intimate in private. For most of the 19th and 20th
centuries, sodomy laws were used as secondary charges in cases
of sexual assault, sex with children, public sex and sex with
animals. Most of those cases involved heterosexual sex.
Originally, sodomy laws were part of a larger body of law
-- derived from church law -- designed to prevent nonprocreative
sexuality anywhere, and any sexuality outside of marriage.
Sodomy Laws Are Aimed at Gay People in the 70's
Sodomy laws began to be used in a new way, distinctly against
gay people, in the late 1960's. As the young gay rights movement
began to make headway, and the social condemnation of being
gay began to weaken, social conservatives began to invoke
sodomy laws as a justification for discrimination.
In nine states, sodomy laws were explicitly rewritten so that
they only applied to gay people. Kansas was the first state
to do that in 1969. Kansas was followed in the 1970's by Arkansas,
Kentucky, Missouri, Montana, Nevada, Tennessee, and Texas.
In two states, Maryland and Oklahoma, courts decided that
sodomy laws could not be applied to private heterosexual conduct,
leaving what amounted to same-sex only laws in effect.
In many other states, including Alabama, Florida, Georgia,
Mississippi, North Carolina, North Dakota, Pennsylvania, South
Dakota, Utah, Virginia and Washington, government agencies
and courts treated sodomy laws that, as written, applied to
all couples, straight and gay, as if they were aimed at gay
people.
How the Laws Were Used Against Gay People
These laws were used against gay people in three ways. First,
they were used to limit the ability of gay people to raise
children. They were used to justify denying gay parents custody
of their own children (Alabama, Arkansas, Mississippi, Missouri,
North Carolina, North Dakota, Pennsylvania, South Dakota,
Virginia). They've also been used to justify refusing to let
gay people adopt (Florida, Mississippi) and refusing to let
gay people become foster parents (Arkansas, Missouri).
Second, the laws have been used to justify firing gay people,
or denying gay people jobs. The idea was explained by the
F.B.I. in a case which it won in the late 1980's. In 1986,
in Bowers v. Hardwick, the U.S. Supreme Court decided
that the U.S. constitution allowed Georgia to make sodomy
a crime. Although the Georgia law applied to all couples,
the Court said its decision was about "homosexual sodomy"
(see "Getting Rid of Sodomy
Laws"). That meant, the F.B.I. said, that it couldn’t
be illegal to discriminate against gay people because gay
people are a class "defined" by conduct which could
be made a crime.
After the U.S. Supreme Court said in 1996 (in Romer v.
Evans, which struck down a Colorado constitutional amendment
that forbade gay rights laws) that states could not discriminate
against gay people on the basis of "disapproval,"
the argument was harder to make. But that didn’t stop Georgia's
Attorney General from (successfully) using the state's sodomy
law as a justification for refusing to hire a lesbian, or
the Bowers decision from being offered as a justification
for firing a lesbian x-ray technician in a Washington state
case last year.
Third, the laws have been used in public debate, to justify
denying gay people equal treatment and to discredit LGBT voices.
In Utah, the sodomy law was used to justify not protecting
gay people from hate crimes. In Arkansas, Florida, Mississippi
and Texas they've been used to justify various proposals to
ban adoption or foster care, sometimes successfully. Sodomy
laws are regularly invoked in civil rights debates: from a
reason not to recognize domestic partnerships in Kalamazoo,
Michigan (the argument was rejected), to a reason to give
"sodomy states" the right to "opt out"
of a federal law banning employment discrimination (which
hasn't even come to a floor vote in Congress since the mid
90's).
Near Austin, Texas, Williamson County denied Apple Computer
a promised tax incentive to build a new plant because the
company recognizes domestic partners, said to be a violation
of Texas' sodomy law (the county later changed its mind, under
heavy pressure from then Governor Ann Richards). Shawnee County
Kansas canceled a contract with a company to collect property
taxes because the company recognized domestic partners. The
county Treasurer said that was a violation of Kansas's sodomy
law.
The tax cases may seem almost comic. Losing a job, or worse,
losing your family isn't.
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