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 Idaho passed a similar revision, but when the legislature discovered it had repealed the sodomy law, it repealed the entire reform package instead.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Illinois' lead in 1971 and 19 more states (CT, CO, CA, DE, HI, IN, IO, ME, NE, NJ, NM, ND, OH, OR, SD, VT, WA, WV, WY) repealed their sodomy laws in the 1970s.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 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 A.C.L.U. 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 is likely to send the second Kansas case, People v. Limon back to the state courts for reconsideration in light of Lawrence.