Why Sodomy Laws Matter
How the Laws Were Used Traditionally
Today's 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 <A HREF="https://www.aclu.org:443/cpredirect/11886" onClick="window.open" target="popup">"Getting Rid of Sodomy Laws"</A>). 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.
The Impact of the Lawrence Decision
All this should change with the Lawrence decision. Lawrence only directly invalidates sodomy laws in the four states that have laws that only apply to gay people: Texas, Oklahoma, Missouri and Kansas. But the equal protection clause forbids subtle discrimination just as much as it forbids obvious discrimination. And there isn't much that is subtle about the government saying that a sodomy law justifies taking your children away because you are gay. Either the law in fact applies to everybody-in which case, it provides no justification for treating gay people differently at all-or it applies just to gay people-in which case, it cannot survive today's ruling.