Court Strikes Down Minnesota Sodomy Law; Ventura Administration May Fight State Impact

Affiliate: ACLU of Minnesota
May 21, 2001 12:00 am

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MINNEAPOLIS, MN – The American Civil Liberties Union today hailed a state court ruling that strikes down Minnesota’s law prohibiting oral and anal sex. The ACLU vowed to defend the ruling’s statewide impact if Governor Jesse Ventura’s administration steps in and tries to limit the ruling to the individual plaintiffs in the case.

“This is a tremendous victory — because of what sodomy laws do, but also because of what they say,” said Matt Coles, Director of the ACLU Lesbian & Gay Rights Project, which along with the ACLU’s Minnesota state affiliate last summer filed Doe, et al. v. Jesse Ventura, et al., a lawsuit challenging the sodomy statute. “A society’s laws are its core statement of right and wrong. Sodomy laws, because they are understood to primarily apply to lesbians and gay men, marginalize gay people and their pursuit of equal citizenship.”

State District Court Judge Delila F. Pierce struck the law down in a ruling released Friday, saying that the court “declares [the sodomy statute] to be unconstitutional, as applied to private, consensual, non-commercial acts of sodomy by consenting adults, because it violates the right of privacy guaranteed by the Minnesota Constitution.”

Minnesota’s sodomy law, which has been on the books since the 1800s, prohibits both oral and anal sex between any adults. Penalties include up to a year in jail and up to $3,000 in fines. In recent years, the law has been directly enforced and also has been indirectly used to deny opportunities, especially to lesbians and gay men in employment, child custody and other areas. For years, efforts to repeal the law in the state legislature were unsuccessful. Right-wing groups unsuccessfully tried to alter the law in recent years, so it would not apply to married, straight couples.

Pierce’s decision striking down the sodomy law noted that the plaintiffs in the case “represent a cross section of Minnesotans impacted by the sodomy statute.” The ruling should prevent the law from being enforced or invoked anywhere in Minnesota, according to Leslie Cooper, the ACLU Lesbian & Gay Rights Project staff attorney handling the case.

But the ACLU is asking the court to technically certify the case as a class-action, which Cooper said will leave “absolutely no question” that the sodomy law cannot be enforced directly or indirectly. At the end of May, Minnesota Governor Jesse Ventura’s administration may file legal papers opposing this, and a hearing would be held June 7.

“It’s unfathomable that the Ventura Administration would want the court to limit this ruling,” Cooper said. “The sodomy law has been declared unconstitutional — and the state has no good reason to say that it should be unconstitutional for some people, but not everyone.”

The ACLU’s clients in the case are state citizens whose jobs, homes and relationships with their children were threatened by the sodomy law, including:

A quadriplegic married man who lives in Minneapolis, identified for privacy reasons only as “John Doe.” Because of his disability, the only forms of intimacy he is capable of engaging in with his wife were among those criminalized under the sodomy statute.

A married elementary school teacher in Minneapolis, Mark Roe. Teachers can lose their credentials if they are found to be violating state law, including the sodomy statute.

A lesbian attorney in Minneapolis, who rents a townhouse. Identified as “Jane Doe” in the lawsuit, she could have faced eviction from her home because her lease prohibits illegal activity.

A gay law student in Minneapolis, Phil Duran, who lives in an apartment with a similar lease. Duran took the state bar exam recently – a test that could have been moot because individuals who violate state law, including the sodomy statute, can be disbarred.

A divorced gay man in Minneapolis, Kim Nyhus, who has visitation rights with his children. A former Methodist minister who is now working toward Episcopal ordination, Nyhus feared losing visitation with his children because of the state sodomy statute.

The Minnesota Lavender Bar Association, a group of and for lesbian, gay, bisexual and transgendered lawyers and law students. The Association is a plaintiff on behalf of its members statewide, who were directly threatened by the sodomy statute.

The ACLU also noted the 1997 arrest and prosecution of a Beltrami County man who engaged in consensual oral sex with a woman. The sodomy law also was used for years to help prevent passage of a state law banning discrimination based on sexual orientation. That law was finally enacted in 1993.

The ruling in Doe, et al. v. Ventura, et al. comes on the heels of several recent developments affecting similar laws nationwide. Earlier this month, Arizona Governor Jane Hull signed a law repealing that state’s sodomy statute. In March, a state court in Arkansas found its sodomy law unconstitutional. The Puerto Rico Supreme Court is currently weighing the ACLU’s challenge to that sodomy law. But a Texas Court of Appeals upheld that state’s sodomy law last month, in a decision now being appealed.

Excluding Arizona, Arkansas and Minnesota, 15 states have laws prohibiting oral and anal sex between consenting adults, some of which only apply to same-sex intimacy – but all of which are used disproportionately against lesbians and gay men.

In 1961, all 50 states (as well as Puerto Rico and the District of Columbia) had sodomy laws on the books. Since then, legislatures in 26 states (including all of the states bordering on Minnesota) have repealed their sodomy laws. The ACLU has helped successfully challenge sodomy laws in Kentucky, Tennessee, Montana, Georgia and Maryland, arguing that they violate state constitutions.

In addition to Cooper of the ACLU Lesbian and Gay Rights Project, Teresa Nelson of the ACLU’s Minnesota affiliate and Timothy Branson, from the Minneapolis law firm of Dorsey and Whitney, are attorneys on the case challenging Minnesota’s sodomy law.

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