History of Sodomy Laws and the Strategy that Led Up to Today's Decision

June 16, 2003
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 Idaho passed a similar revision, but when the legislature discovered it had repealed the sodomy law, it repealed the entire reform package instead.

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Connecticut followed Illinois' lead in 1971 and 19 more states (CT, CO, CA, DE, HI, IN, IO, ME, NE, NJ, NM, ND, OH, OR, SD, VT, WA, WV, WY) repealed their sodomy laws in the 1970s. 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 assasinated 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 50's and 60's. 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 the 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. 

Then, in 1986, the Court decided Bowers v. Hardwick.

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 before another repeal (Nevada and the District of Columbia). Rhode Island repealed in 1978, and Arizona in 2001. 

Rather than bring federal challenges, 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 (Lavander 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. 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 ACLU brought challenges in Kansas, Maryland and Puerto Rico. Lambda brought cases in Arkansas, and, in Texas, the Lawrence case. 

The first Kansas case (1998) upheld the law, and the challengers 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 today's decision in Lawrence, the strategy has come to its conclusion. The Court is likely to send the second Kansas case, People v. Limon back to the state courts for reconsideration in light of Lawrence.

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