In 2003, the U.S. Supreme Court declared sodomy laws unconstitutional. Historically, many states criminalized sodomy—acts of anal or oral sex—even when those acts were performed in private between two consenting adults. While prosecutions for acts performed in private were generally rare, the existence of sodomy laws was used to justify discrimination based on a person's sexual orientation.
Sexual acts that fall within the definition of sodomy can vary quite a bit. The narrow definition of sodomy might include only anal sex between two men. Sodomy can also be more broadly defined to include any sexual penetration aside from vaginal intercourse, including oral and anal sex, whether between two men or two women or a man and a woman. Laws differ on whether sodomy includes digital penetration and cunnilingus. Sometimes, sodomy laws also prohibit bestiality (sex with animals).
Today, laws against sex crimes prohibit all kinds of forcible acts, as well as sexual behavior against people who do not or cannot consent (such as children and people who lack the mental capacity to give meaningful consent). However, historically, there were basically two kinds of sex crimes: rape and sodomy. Rape laws criminalized vaginal intercourse with a woman who was not your wife. Sodomy laws prohibited non-procreative behavior with anyone. Sodomy laws were a way to prosecute any sex act other than vaginal intercourse, whether consensual or not.
In Lawrence v. Texas, 539 U.S. 558 (2003), the U.S. Supreme Court struck down Texas's sodomy law as it applied to consensual sex acts, on the grounds that it violated the right to liberty and privacy guaranteed by the Due Process Clause of the Fourteenth Amendment. The Texas law criminalized only sexual acts between people of the same sex, but the court's decision invalidated any sodomy law that prohibits consensual acts between adults.
Sodomy laws have existed for hundreds of years, originating in religious prohibitions against non-procreative sexual acts. As the Supreme Court noted in Lawrence v. Texas, historically, sodomy prosecutions were not usually used against consenting adults acting in private but were often a way (indeed, the only way) to prosecute a sexual predator who committed any act other than vaginal intercourse against a non-consenting victim. In the 19th century, there were sodomy prosecutions against consenting adults, but these appear to have been for conduct that occurred in public.
In the 1960s, many states began decriminalizing sodomy and related laws. Around the same time, some states went the complete opposite direction and enacted laws prohibiting sodomy between people of the same sex (such as the Texas law struck down by the Supreme Court), while other states retained laws that criminalized sodomy between any two people, no matter their gender. In 1986, the U.S. Supreme Court upheld Georgia's sodomy law, which criminalized oral and anal sex between people of the same or different sex, on the basis that gay and lesbian couples had no constitutional right to engage in sodomy. (Bowers v. Hardwick, 478 U.S. 186 (1986).) The Lawrence case overruled the Bowers decision.
As noted, in modern times, even before the laws were invalidated, sodomy laws were rarely used in criminal prosecutions. However, sodomy laws legitimized discrimination and harassment against individuals based on their sexual orientation by branding them as criminals. For example, an attorney in Georgia was denied employment with the state attorney general's office because she was a lesbian. The court found no discrimination, in part, because she was a supposed criminal under the state's sodomy law. (Shahar v. Bowers, 114 F.3d 1097 (11th Cir. 1997).) In 1998, the Alabama Supreme Court spoke approvingly of limiting a gay parent's visitation rights because exposing children to an "illegal" lifestyle "could greatly traumatize them." (Ex parte D.W.W., 717 So.2d 793.) Sodomy laws were used to justify employment discrimination, family law decisions that refused to award custody to gay parents, and adverse immigration decisions.
If you are arrested or harassed on the basis of your sexual orientation or a state's sodomy law, talk to a local criminal defense or civil rights attorney. An attorney can help you protect your rights and successfully navigate the legal system. For more information on LGBTQ antidiscrimination laws, check out Nolo's articles on LGBTQ Laws.
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