It’s been 20 years since the Supreme Court invalidated sodomy laws with its decision in Lawrence v. Texas, but legal codes inherited from colonial laws and used to prosecute LGBTQ people by banning certain sex acts remain in effect across the country.
Efforts to repeal the laws in 12 states have taken on new urgency following another historic Supreme Court ruling.
Justice Clarence Thomas said last year in his concurring opinion in Dobbs v. Jackson Women’s Health Organization — the decision that overturned the constitutional right to abortion in Roe v. Wade — that previous Supreme Court rulings affirming the right to privacy should be reconsidered.
And while the sodomy laws were overturned, there was no mandate for states to update their legal codes, leaving those dormant laws as potential restrictions should the Supreme Court review the ruling.
Gregory R. Nevins, an attorney with Lambda Legal, the LGBTQ advocacy group that won the Lawrence v. Texas case, said the Dobbs decision “increases the urgency” of getting the sodomy laws off the books.
“And probably for some states, that means they’re going to be reluctant to repeal it,” said Mr. Nevins. “As we saw, there were a lot of old abortion laws on the books that were dusted off after Dobbs.”
Maryland and Minnesota repealed their remaining sodomy laws this year, but such laws still exist in Florida, Georgia, Kansas, Kentucky, Louisiana, Massachusetts, Michigan, Mississippi, North Carolina, Oklahoma, South Carolina and Texas.
If the June 2003 Lawrence v. Texas decision were overturned, state-level sodomy laws could be revived “as long as the right to privacy appears to be under threat from a conservative court,” said Wesley Phelps, the author of “Before Lawrence v. Texas: The Making of a Queer Social Movement.”
The state laws are inherited from British common law, which regarded sodomy as a sexual act that would not lead to procreation and banned it, said Mr. Phelps, who is also an associate professor at the University of North Texas.
Acts prohibited for such reasons include same-sex intercourse, oral and anal sex between a man and a woman, and masturbation. The legal language is not always explicit and changes from state to state. In North Carolina, for example, sodomy law makes it a felony to commit a “crime against nature, involving man or beast.”
Over time, the language defining a “crime against nature” changed in some states, often more clearly targeting same-sex couples. Other states decided that the legal system was moving toward preserving the right to privacy and repealed sodomy laws to reflect that, as Illinois did in 1961.
However, in the states where sodomy laws have persisted, they have been used as tools of oppression and discrimination against gays and lesbians, Mr Phelps said.
In Texas, he said, people who wanted to apply for certain jobs or professional licenses, such as those required for medicine or cosmetology, would have to sign a document promising to follow the state’s laws. This meant that prior to Lawrence v. Texas, gays and lesbians either had to commit perjury or not register.
“It wasn’t really a criminal case for gays and lesbians; it was a matter of discrimination,” Mr. Phelps said.
While the laws are unenforceable today, they can still be used to discriminate against or, falsely, arrest people, leading some state legislators to try to repeal them.
In March, the Maryland legislature repealed a provision that made it illegal to perform oral sex or engage in sexual acts deemed “unnatural or perverted” with a human or animal. Governor Wes Moore, a Democrat, did not veto the repeal bill, allowing it to go into effect in May without his signature. The clause will be removed from the state’s penal code on Oct. 1.
Maryland had repealed a more explicit ban on sodomy in 2020, but the “unnatural or perverted” language that remained was used in May 2021 to arrest four gay men during a raid on an adult book and video store.
Also in May, Minnesota Gov. Tim Walz, a Democrat, signed into law a public safety bill repealing the state’s ban on sodomy and the state’s ban on adultery and fornication. The Minnesota Supreme Court ruled in 2001 that the ban on sodomy was unconstitutional.
Texas lawmakers have tried to repeal the sodomy law that the Supreme Court has struck down in Lawrence v. Texas every year since the case was decided in 2003. This year, the legislative session ended before the House had time to consider repealing the legislation.
In Massachusetts, a bill passing through the state legislature would expunge several instances of obsolete language, including sodomy laws that criminalize “unnatural and lascivious” acts. The so-called Archaic Laws would also remove words like “common night walkers” and “common street walkers” from the state law and replace them with “persons.”
State Representative Jay Livingstone, a Democrat, co-sponsored the bill for archaic laws in the House, saying these efforts have gained importance following recent Supreme Court rulings.
“Massachusetts has made some statements in favor of LGBTQ people, but we still have the laws on our books to prohibit what people would generally consider legal activities between consenting adults that have historically been used to target the LGBTQ community,” said Mr. Livingstone. “We need to revoke those bans to reflect the values we want in our society.”
