Sodomy laws are laws that criminalize various forms of consensual sexual contact between adults, most commonly oral and anal sex. During the past 30 years these laws have been subject to legal challenges in both the United States and abroad. Although sodomy laws have been abolished in much of the developed world, many countries still implement criminal penalties for adults caught engaging in these behaviors; penalties range from fines to death sentences.
Debate Over Sodomy Laws
Political and legal disputes over sodomy laws touch on debates over privacy, religion, and public health. In court cases in both the United States and abroad, proponents of maintaining sodomy laws often contend that sodomy is a “crime against nature,” since anal and oral sex serve no procreative purposes. Moreover, advocates of sodomy laws point to a long history of criminalization, and note that most major religions deem sodomy to be immoral. Other advocates of sodomy bans cite public health concerns, alleging that sodomy, especially homosexual sodomy, is likely to result in the spread of sexually transmitted diseases.
Opponents of sodomy laws reject the factual basis of these arguments, asserting that there is no compelling reason for a government to regulate the private, consensual sexual behavior of its citizens. In fact, opponents allege that sodomy laws violate an individual’s right to privacy, as outlined in both domestic and international law. Moreover, those critical of sodomy laws note that antisodomy statutes often have a discriminatory intent and aim to further stigmatize homosexuals.
Sodomy Laws in the United States
The criminalization of sodomy had a long tradition in the United States, dating to the colonial era; in the 1960s, every state still had penalties for consensual sodomy. The first major push for the repeal of these laws came from the American Law Institute (ALI). Beginning in 1955 the ALI encouraged states to adopt its Model Penal Code; the code contained a host of legal reforms, including the decriminalization of sodomy. Subsequently, in 1961 Illinois adopted the Model Penal Code and became the first state to decriminalize homosexuality. A combination of legal reforms and changing public attitudes led to a wave of repeals in the 1970s. Specifically, in 1971 Connecticut became the second state to repeal its sodomy laws, and by 1983 only 24 states still maintained laws criminalizing sodomy. Other state legislatures, however, chose to preserve their sodomy laws and simply altered the statutes to apply only to homosexual sexual encounters.
Repealing the remaining sodomy laws became a central priority of the burgeoning gay rights movement. Specifically, in the 1970s and 1980s Lambda Legal, a civil rights organization promoting gay rights, sought to identify a case to take to federal court in the hope of securing a constitutional ban on sodomy laws. A key challenge for the group, however, was finding a plaintiff; existing sodomy laws were rarely enforced, making it difficult to identify an individual who had standing to challenge a state sodomy ban.
After several favorable lower court decisions, Lambda used the case of Michael Hardwick to mount a challenge to the constitutionality of sodomy laws. Hardwick had been arrested in 1982 after a police officer discovered him engaging in consensual sex with another man inside his home. He was arrested under Georgia’s sodomy statute but was never changed. Hardwick then sued the Georgia attorney general, claiming the law violated his constitutional right to privacy.
The case, Bowers v. Hardwick, came before the Supreme Court in 1986. In a 5–4 decision, written by Justice Byron White, the court rejected Hardwick’s argument. Specifically, the court took a limited view of the right to privacy, arguing that it was intended to protect individuals from state intrusion into matters related to family, procreation, and marriage; the majority argued that homosexual sodomy did not deserve the same level of protection from state interference. Moreover, the majority cited the long history of sodomy bans and argued that Georgia had the right to pass such a law for “the protection of public morality.”
Although the Bowers decision affirmed the rights of states to maintain existing sodomy laws, by the 1990s many states moved to abolish them. In 1992, as the result of a state court decision, Kentucky became the first state since the Bowers decision to decriminalize sodomy. By 2003, when the Supreme Court revisited its decision in Bowers, 11 states had either legislatively or judicially invalidated their sodomy laws. Thirteen states still maintained sodomy laws; notably, nine states criminalized both homosexual and heterosexual sodomy, and four states banned sodomy only when it was committed by homosexuals.
In the 2003 case Lawrence and Garner v. Texas, two men challenged their 1998 conviction for “deviant sexual intercourse” under Texas’s “Homosexual Conduct” Law; Texas law did not criminalize heterosexual sodomy. In a 6–3 decision, the majority, led by Justice Anthony Kennedy, argued that the Texas law was unconstitutional; moreover, the opinion reversed Bowers v. Hardwick, holding that the case had been incorrectly decided.
Specifically, the justices held that the criminalization of consensual sexual activity violated the due process clause of the Fourteenth Amendment. The majority opinion noted that in Bowers the court had erroneously asserted that sodomy laws were nondiscriminatory, applying equally to both homosexual and heterosexual sexual activities. Instead, the majority in Lawrence argued that the true purpose of sodomy laws was to stigmatize homosexual behavior, something that unconstitutionally “demeans the lives of homosexual persons.” The decision, which invalidated all remaining state sodomy laws, was a landmark victory for the gay rights movement.
Sodomy and International Law
Increasingly, gay rights have been incorporated into international treaties, causing organizations such as the United Nations and the Council of Europe to call for the repeal of remaining sodomy laws. Many countries in the developing world inherited sodomy laws from former colonial powers, while other countries maintain the laws in the name of religious tradition.
The first international legal challenge to a sodomy law came in 1981 in the case of Dudgeon v. U.K. Jeffrey Dudgeon, a resident of Northern Ireland, was arrested after engaging in consensual anal sex with another man inside his home; he was charged under a law from the 1800s, which forbid sodomy. Although the law had been repealed in other parts of the United Kingdom (UK), it remained in force in Northern Ireland.
Dudgeon petitioned the European Court of Human Rights (ECHR), the judicial organ of the Council of Europe, to review the law. The court ruled in favor of Dudgeon and concluded that the law violated Article 8 of the European Convention on Human Rights, which protected a right to privacy. As a result of the ruling, the UK fully decriminalized sodomy in 1982. Two subsequent ECHR cases invalidated similar antisodomy laws in the Republic of Ireland and Cyprus.
In 1994, the United Nations (UN) also became involved in a legal challenge to sodomy laws. That year, Nicholas Toonen, a homosexual man residing in Tasmania, Australia, submitted a complaint to the United Nations Human Rights Committee (UNHRC) concerning Tasmania’s laws criminalizing sodomy. Although Australia supported the repeal of the sodomy ban, the government of Tasmania defended the law; Tasmanian officials argued that criminalizing sodomy promoted public health, since the law was designed to arrest the spread of HIV/AIDS among gay men in the state. Moreover, Tasmania argued that the sodomy ban reflected domestic moral opposition to homosexuality.
In Toonen v. Australia, the UNHRC rejected the arguments of the Tasmanian government and found that the law was inconsistent with Australia’s obligations under the International Covenant on Civil and Political Rights. Although the decisions of the UNHRC are not binding, the ruling made clear that the UN now considered gay rights to be a key subset of human rights.
Fifteen years after the Toonen decision, the UNHRC passed its first resolution calling for equal treatment of lesbian, gay, bisexual, and transgendered (LGBT) persons. Pursuant to this, the UN completed a global review of gay rights and found that as of November 2011, 76 countries still maintained statutes that criminalized homosexual sodomy. Moreover, five countries imposed the death sentence for homosexual sodomy. The report, however, did find signs of progress, noting that since 2000 more than a dozen countries had repealed their sodomy laws. The UNHRC continues to monitor the status of sodomy laws through its Universal Periodic Review (UPR), a rolling review of the human rights standards and practices in all UN member states. As a result of the UPR, several countries have agreed to work toward repealing existing sodomy statutes.
- Andersen, Ellen Ann. Out of the Closets and Into the Courts: Legal Opportunity Structure and Gay Rights Litigation. Ann Arbor: University of Michigan Press, 2006.
- Eskridge, William N. Dishonorable Passions: Sodomy Laws in America, 1861–2003. New York: Penguin Group, 2008.
- United Nations High Commissioner for Human Rights. “Discriminatory Laws and Practices and Acts of Violence Against Individuals Based on Their Sexual Orientation and Gender Identity.” (November 17, 2011). http://www.ohchr.org/Documents/Issues/Discrimination/A.HRC.19.41_English.pdf (Accessed August 2013).
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