Sodomy Laws in The United States - History

History

In 1778, Thomas Jefferson wrote a law in Virginia which contained a punishment of castration for men who engage in sodomy, however, what was intended by Jefferson as a liberalization of the sodomy laws in Virginia at that time was rejected by the Virginia Legislature, which continued to prescribe death as the maximum penalty for the crime of sodomy in that state.

Prior to 1962, sodomy was a felony in every state, punished by a lengthy term of imprisonment and/or hard labor. In that year, the Model Penal Code (MPC) — developed by the American Law Institute to promote uniformity among the states as they modernized their statutes — struck a compromise that removed consensual sodomy from its criminal code while making it a crime to solicit for sodomy. In 1962 Illinois adopted the recommendations of the Model Penal Code and thus became the first state to remove criminal penalties for consensual sodomy from its criminal code, almost a decade before any other state. Over the years, many of the states that did not repeal their sodomy laws had enacted legislation reducing the penalty. At the time of the Lawrence decision in 2003, the penalty for violating a sodomy law varied very widely from jurisdiction to jurisdiction among those states retaining their sodomy laws. The harshest penalties were in Idaho, where a person convicted of sodomy could earn a life sentence. Michigan followed, with a maximum penalty of 15 years imprisonment while repeat offenders got life. This was later invalidated in the case of Michigan Organization for Human Rights v. Kelly (1987).

By 2002, 36 states had repealed their sodomy laws or their courts had overturned them. By the time of the 2003 Supreme Court decision, the laws in most states were no longer enforced or were enforced very selectively. The continued existence of these rarely enforced laws on the statute books, however, was often cited as justification for discrimination against gay men and lesbians.

On June 26, 2003, the U.S. Supreme Court in a 6-3 decision in Lawrence v. Texas struck down the Texas same-sex sodomy law, ruling that this private sexual conduct is protected by the liberty rights implicit in the due process clause of the United States Constitution. This decision invalidated all state sodomy laws insofar as they applied to noncommercial conduct in private between consenting civilians and reversed the Court's 1986 ruling in Bowers v. Hardwick that upheld Georgia's sodomy law.

Before that 2003 ruling, 27 states, the District of Columbia, and 4 territories had repealed their sodomy laws by legislative action, 9 states had had them overturned or invalidated by state court action, 4 states still had same-sex sodomy laws, and 10 states, Puerto Rico, and the U.S. military had laws applying to all regardless of gender. In 2005 Puerto Rico repealed its sodomy law, and in 2006 Missouri repealed its law against "homosexual conduct." Three states have yet to repeal such laws: Oklahoma, Kansas and Texas.