A Brief History of Sodomy Laws in the United States
Until the 21st century, sodomy laws prevailed in the United States legal system. In a 6-3 ruling of the landmark United States Supreme Court case Lawrence V Texas (2003), sodomy laws in Texas were considered unconstitutional, effectively deeming all state laws against sodomy unconstitutional as well. This not only applied to homosexual sex, but hetero sexual as well.
Sodomy laws were first derived from religious references, which throughout history have seen sodomy and homosexual behavior as sinful. When King Henry VIII separated Britain form the Catholic church, the Church was integrated into law, making sodomy illegal. As the 13 American colonies were established, the same laws were put into place and were continued as America became independent from Britain.
These sodomy laws were kept in place until the second half of the 20th century. Before 2003, they were still effective in 14 states, Alabama, Florida, Idaho, Kansas, Louisiana, Michigan, Missouri, Mississippi, North Carolina, Oklahoma, South Carolina, Texas, Utah, and Virginia.
Sodomy laws had already been stuck down in 11 states from 1989 to 2002 and 24 more between 1970 to 1989. Illinois was the only state to have stuck down sodomy laws before 1970.
In 1986, the case Bowers V Hardwick was taken up the United States Supreme Court. In this case, Hardwick had been found with a male companion while engaging in consensual oral sex, which violated a Georgia law that classified homosexual sex as illegal since it was not protected by the Constitution. The United States Supreme Court upheld this law, saying that the right to privacy from the due process clause of the 14th amendment did not extend to homosexual sexual activity.
This precedent was not upheld by Lawrence V Texas (2003), which was a case involving a weapons disturbance in a private residence in Houston, Texas. When Police entered petitioner Lawrence’s apartment, they found Lawrence taking engaging is a consensual Sexual act with another man, Garner. Both were arrested and convicted of deviate sexual intercourse, which violated a Texas sodomy statute forbidding homosexual sexual conduct.
The 2003 case reevaluated the constitutionality and majority opinion found that the actions were appropriate as long as consenting adults were participating in a private setting.
Despite this ruling, there has still been some unwillingness on from certain states to fully comply. For instance, in April 2011, the Texas state legislature debated whether to repeal the state’s ban on homosexual conduct. Despite Lawrence V Texas, the state has not removed the law from the books. Meanwhile, 14 other states have not removed the laws outlawing consensual anal sex between adults.
Currently only Alabama, Florida, Idaho, Louisiana, Michigan, Mississippi, North Carolina, South Carolina, Utah, and Virginia have laws outlawing all sodomy. Kansas, Montana, Oklahoma, and Texas still have laws on the books that outlaw only outlaw homosexual sodomy.
The 2003 decision is also applied limitedly to the United State Military. While the Court of Appeals for the Armed Forces have stated that the ruling narrows the former ban on sodomy via Article 125, there are certain circumstances unique to the military that can uphold Article 125, such as public sexual behavior or rape.