Last edited: February 20, 2005


Case Law

The most significant of of all U.S. legal decisions having to do with sodomy laws is Lawrence v. Texas in which The U.S. Supreme Court ruled 6-3 that sodomy laws are unconstitutional on June 26, 2003.

Prior to Lawrence was the infamous Bowers v. Hardwick (1986), 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140; and

Doe v. Commonwealth’s Attorney for the City of Richmond, 403 F. Supp. 1199 (E.D. Va. 1975), which upheld Virginia’s sodomy law and which was summarily affirmed by the Supreme Court.

An expanded sections on Lawrence v. Texas and Bowers v. Hardwick are now available.

Opinions finding sodomy laws to be unconstitutional:

United States v. Kenneth M. Bullock, Decision of the Army Court of Criminal Appeals narrowly reversing a conviction for consensual sodomy under UCMJ Art. 125 on Lawrence v. Texas grounds. - November 30, 2004

Pennsylvania's law was repealed through Commonwealth v. Bonadio, 415 A.2d 47 (Pa. 1980)

New York's law was repealed through People v. Onofre 415 N.E.2d 936 (N.Y. 1980)

Kentucky's law was repealed through Commonwealth v. Wasson, (Ky. 1992) 842 S.W.2d 487.

Tennessee's law was repealed through Campbell v. Sundquist (Tenn. Ct. App. 1996), 926 S.W.2d 250, 262.
In January 1996, the Tennessee Court of Appeals affirmed Circuit Court Judge Walter Kurtz's decision that the Tennessee Homosexual Practice Act was unconstitutional. The Court ruled that the statute violated privacy rights guaranteed by the Tennessee Constitution. The ACLU of Tennessee filed an amicus brief urging the Court to affirm the lower court's decision on the grounds that the statute violates the privacy and equal protection guarantees of the Tennessee Constitution and that the Tennessee Constitution ensures greater protection than the United States Constitution. ACLU cooperating attorneys were Vanderbilt Law Professors Robert Rasmussen, Rebecca Brown, and Susan Kay. In June 1996, the Tennessee Supreme Court, in effect, affirmed the lower Court's ruling when it denied the State's request for a hearing and urged publication of the Court of Appeals decision.

Montana's law was found unconstitutional through Gryczan v State, 1997.

Georgia's law was found unconstitutional through Powell v. The State, (Georgia Supreme Court, November 23, 1998).

Maryland's 1990 Schochet v. State found the law against oral sex to be unconstitutional in the case of heterosexuals only. Schochet v. State was found to apply equally to homosexual acts in Williams v. Glendening, 1998. Section 27-553 (anal sex) was found to also be unconstitutional in a 1999 settlement with the ACLU which argued Williams v. Glendening.

Minnesota's law was found unconstitutional through Doe, et al. v. Jesse Ventura, et al. (2001). (The possibility of prosecutions still exists but is very unlikely to be successful.)

Arkansas' law was found unconstitutional in Picado v. Jegley (2002).

Incomplete rulings

State v. Morales, 826 S.W.2d 201 (Tex. App. 1992),

City of Dallas v. England, 846 S.W.2d 957 (Tex. App. 1993) review by higher court denied.

Invalidated by local trial court, Michigan Org. for Hum. Rts. v. Kelley, No. 88-815820 CZ (Mich. Cir. Ct. Wayne Cnty. July 9, 1990), The State has not appealed. In late 1992, there was a decision of the Michigan Court of Appeals to uphold the statute, which has effect outside of Wayne County. See People v Brashier, 496 N. W.2d 385.

The Missouri Court of Appeal ruled July 6, 1999 in State of Missouri v. Cogshell, 1997 S.W.2d 534 (Mo.App., W.D.), that a revision of the state’s sodomy law had, in effect, decriminalized consensual sodomy in the state. This applies to the Western District, but it has not been appealled to the state supreme court.

Opinions finding sodomy laws to not apply to heterosexuals:

Maryland's 1990 Schochet v. State.
Schochet v. State was found to apply equally to homosexual acts in Williams v. Glendening, 1998. Section 27-553 was found to also be unconstitutional in a 1999 settlement with the ACLU which argued Williams v. Glendening.

Oklahoma's 1986 Post v. the State of Oklahoma.

Other cases:

1996 Lesbian And Gay Rights Docket
ACLU Lesbian And Gay Rights Project

State of Georgia v. Christensen, 1996
This was a challenge to Georgia's sodomy law under the Georgia State Constitution. The defendant was arrested after an undercover police officer successfully induced him to ask the police officer to go to a motel for sex. Since the acts were to take place in private, the defendant was charged with soliciting sodomy. The ACLU of Georgia assumed representation in the Georgia Supreme Court. The ACLU argued that the Georgia sodomy statute violates the Georgia constitutional right to privacy, the first constitutional right to privacy to be recognized in America. The court upheld the law over two strong dissents.

Fornication Law Repeal: In re: J.M., (No. SO2A1432)

City of Topeka v. Movsovitz
This is a challenge to both a state and a city law which prohibit sodomy but only when the couple involved is lesbian or gay. The Defendant was the victim of a police sting. After talking with an undercover officer for some time, he agreed (at the officer's suggestion) to participate in an act of oral sex. The City agrees that had the officer been a woman, no crime would have been committed. The trial court denied our motion to dismiss the case on the basis that the law violates equal protection. The case is now before the Kansas Court of Appeals.

State of Louisiana v. Mitchell Smith, 2000
The Louisiana Supreme Court ruled on July 6, 2000 that they did not have the authority to declare unconstitutional a law that existed when the Constitution was written. A full analysis was written by Arthur Leonard.

State of Missouri v. Cogshell, 1997
The Missouri Court of Appeal ruled July 6, 1999 in State of Missouri v. Cogshell, 1997 S.W.2d 534 (Mo.App., W.D.), that a revision of the state’s sodomy law had, in effect, decriminalized consensual sodomy in the state.

Joplin's Mashing Case
In 1996 the ACLU of Missouri, with the assistance of volunteer attorney Robert Payne of Springfield, MO, is representing a gay man who was charged in an undercover operation by the Joplin police force with violating the city's "mashing" ordinance; the ordinance defines "mashing" as the use of words or acts "to annoy or attract the attention of any person by any suggestive act or word." From newspaper reports, as many as thirty gay men were charged with "mashing" in Joplin in April.

City of Oklahoma City v. Sawatzky 1995
During the summer of 1994, an Oklahoma City police officer invited a young man to come back to his hotel room with him. When the man accepted, he was arrested for soliciting sodomy. The ACLU of Oklahoma defended the man in municipal court, which issued a guilty verdict.

The Oklahoma affiliate challenged the verdict and the State's anti-sodomy statute in the Oklahoma Court of Criminal Appeals, which had previously held that the law was an unconstitutional violation of the right to privacy as it applied to heterosexuals. ACLU Cooperating attorney Mark Henricksen argued the case before the Court of Criminal Appeals in August of 1995 and attempted to convince the Court that the right to privacy applies to all Oklahomans, regardless of sexual orientation. In November of 1995, the Court issued a ruling that refused to address the sodomy statute but upheld the client's municipal court conviction based on the government's interest in regulating sexual speech in public places.

With the help of the Lesbian and Gay Rights Project, the Oklahoma affiliate filed an appeal with the U.S. Supreme Court. In April of 1996, the Supreme Court declined to hear the appeal without comment.

Rhode Island
State v. Lopes, 1996 Summary
In this case in which a heterosexual man was charged with violating Rhode Island's sodomy statute, the ACLU of Rhode Island filed a friend of the court brief arguing that the sodomy law violated the state constitutional right to privacy. Citing an earlier decision, the court simply rejected the challenge and upheld the law. The U.S. Supreme Court declined to review the case.

State v. Quitevis, 1996
The ACLU of Rhode Island is handling an appeal for a person found guilty of "loitering for indecent purposes" at an adult video store after allegedly offering to perform oral sex for an undercover police officer. The trial court rejected the defendant's challenge to the constitutionality of the "loitering" ordinance. The defendant entered a nolo plea and the complaint was "filed" for one year.

Burdine v. State of Texas, 1996
Calvin Burdine was convicted of capital murder and sentenced to death by a Houston jury in 1984. The Project filed an amicus brief in support of his federal court petition for habeas corpus arguing that Burdine's constitutional rights were violated by the extreme homophobia that permeated his trial. Among the more egregious examples was the prosecutor's argument to the jury that putting a gay man in prison is not punishment but is, instead, akin to putting a kid in a candy store, and the court's decision that the jury could use a 1970 consensual sodomy conviction as proof of future dangerousness. Also at issue are allegations that the defense attorney slept through important parts of the trial; and that while on death row, Burdine was subjected to a "mock execution." Burdine's execution was stayed, and a hearing will be set on the merits of his habeas petition.

Elvis Gene DePriest, et al. v. Commonwealth of Virginia, 2000
Upholds the Virginia sodomy law as constitutional. Significantly, it found that the specific cases of individuals charged with solicitation to commit sodomy had not established a presumption of privacy by seeking to commit sodomy in a public park. Their complaints were not allowed to be extended question the constitutionality of the sodomy law as applied to acts engaged in private. Appeals exhausted.

Puerto Rico
Sanchez v. Commonwealth, 1998