Court Wisely Rejects Sodomy Laws
Star Tribune, June 27, 2003
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Very little is more personal and private than sexual
intimacy. Now the U.S. Supreme Court has finally confirmed that consensual
sexual behavior between adults is protected by privacy laws and cannot be
In a long overdue action, the high court rendered sodomy
laws moot. The justices in a 6-3 decision rightly reversed the court’s 1986
ruling that allowed states to punish homosexuals for so-called deviant sex. On
Thursday they struck down a Texas ban on gay sex, ruling that the law was an
unconstitutional violation of privacy.
The decision came in a lawsuit brought by two men who
were charged in 1998 with violating Texas’ Homosexual Conduct Law.
During arguments before the court, Texas defended its
sodomy law as consistent with the state’s interest in protecting marriage
and child-rearing. And some friend-of-the-court filings argued that
eliminating sodomy laws could take the court down the path of allowing
Writing for the majority, Justice Anthony Kennedy
dismissed those concerns and cut to the heart of why the laws are
indefensible. The men, he wrote, “are entitled to respect for their private
lives. . . . The state cannot demean their existence or control their destiny
by making their private sexual conduct a crime.”
Though they became more rare in recent years, four
decades ago nearly every state had laws against “abnormal” sex. Since the
early 1960s, 37 states have either repealed the statutes or had them blocked
by state courts.
Of the 13 states with sodomy laws, four—Texas, Kansas,
Oklahoma and Missouri—prohibit oral and anal sex specifically between
same-sex couples. The other nine ban all consensual sodomy. Thursday’s
ruling apparently invalidates them all.
Minnesota’s sodomy law is technically still on its
books; the Legislature never repealed the statute. However, Minnesota’s law
has been unenforceable because in 2001 a Hennepin County District Court found
it unconstitutional. Several months after ruling on the constitutional
question, the local court certified the decision as a class action on behalf
of all Minnesotans.
In addition to being unconstitutional, these laws
deserved elimination because they were often used selectively to arrest and
harass gay men. During the 1970s and ‘80s, police used them during raids on
gay bath houses. Other illegal activities may have occurred, but sodomy laws
were used to pile on charges or as the sole violation when other charges could
not be proved.
Now thanks to the Supreme Court, that type of
discriminatory law enforcement has lost its legal legs.
As National Gay Pride month comes to a close, the gay and
lesbian community has something else to celebrate and be proud of: America’s
top court has affirmed, once and for all, that government has no place in a
citizen’s private sex life.
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