Last edited: August 10, 2004
The Sensibilities of Our Forefathers
The History of Sodomy Laws in the United States
By George Painter
© Copyright, George Painter 1991-2001
"[T]hat most horrid and detestable crime (among
christians not to be named,) called Sodomy."
The Colonial Period, 1607-1776
A charter granted by King Charles I in 16321
gave the Maryland proprietor, Lord Baltimore, and his heirs the right to
"ordain, make, and enact laws, of what kind soever, according to their
sound discretions[.]"2 The only restriction
on the laws was that they be "consonant to reason, and be not repugnant
or contrary" to the laws of England.3 Even
though this vague command did not seem to adopt the laws of England expressly,
those statutes were regarded as in force in Maryland.
Despite the harshness of English penal law carried to Maryland, the colony
apparently was carnally oriented. In 1676, one Episcopal rector claimed that,
"All notorious vices are committed; so that it is [sic] become a
Sodom of uncleanness and a pest-house of iniquity."4
Period Analysis: Maryland, alone among the colonies, clearly
recognized English law as in force. Just why this was so is unknown, since
neither the governing charter nor any local statute provided for English
The Post-Revolution Period, 1776-1873
In 1776, after Independence, Maryland adopted a Declaration of Rights5
that specifically adopted the common law of England.6
For the period of 161 years that Maryland operated solely off the English
common law, there were only three prosecutions for sodomy, two resulting in
acquittal, and one in a verdict of "ignoramus."7
A unique statute of 17938 adopted a penalty
for sodomy applicable only to males, allowing justices of the peace to hand
down a sentence of
labour for any time, in their discretion, not exceeding seven years for
the same crime, on the public roads of the said county, or in making,
repairing or cleaning the streets or bason [sic] of Baltimore-town;
and the said justices may procure a proper place or places for the
confinement of such criminals, and may appoint and employ a fit and proper
person or persons to take care of such criminals, and to keep them, (and
if necessary, secure them in irons), to constant and hard labour,
according to their age, health and strength of body, and to cause the said
criminals to be cloathed with necessary and coarse apparel, and fed with
bread and coarse meat, and water, and not allowed any kind of strong
liquor, except only as a medicine, by the prescription of a physician, who
may be employed by the said justices to attend and furnish medicines to
the said criminals; and the said justices may compel any of the said
criminals to wear such badge or mark of distinction as they shall direct;
and any one of the said justices shall have full power to order any of the
said criminals to be close confined, and whipped, not exceeding
thirty-nine lashes, for any misconduct, or refusal or neglect to labour,
and to be fed with bread and water only, for such time as the said
justices shall direct.9
A separate provision mandated a penalty of death for any slave who
committed sodomy, although a justice of the peace could commute the sentence
to a maximum of 14 years at hard labor, a sentence twice that for free
In 1809, a new statute was enacted11
changing the penalty for sodomy to 1-10 years, eliminating the discrimination
between slave and free, and eliminating all of the details of punishment from
the 1793 law.
The first reported sodomy case in Maryland also was the first known
reported case in the United States. In 1810, the Court of Appeals decided Davis
v. State.12 By a vote of 4-1, the Court
upheld an indictment that charged that Davis,
not having the fear of God before his eyes, but being moved and seduced
by the instigation of the Devil, on &c. with forms and arms at,
&c. in and upon one W C, a youth of the age of 19 years, in the peace
of God, and the state of Maryland, then and there being, did make
an assault, and him the said W C, then and there did beat, would, and
ill-treat, with an intent that most horrid and detestable crime (among
christians not to be named,) called Sodomy, with him the said W C,
and against the order of nature, then and there feloniously, wickedly and
devilishly, to commit and do, to the great displeasure of Almighty God,
contrary to the act of assembly in such case made and provided, and
against the peace, government, and dignity of the state.13
[Emphasis the Courts].
An 1847 book for justices of the peace in Maryland defined the crime of
sodomy as "carnal knowledge committed against the order of nature by man
with man; or in the same unnatural manner with woman; or by man or woman in
any manner with beast."14
Period Analysis: Maryland remained one of the more primitive of
the original colonies in terms of law. Despite independence from England,
Marylands first constitution recognized the English common law and this
remained the basis for much of Maryland law throughout this time period.
The first published sodomy case in Maryland, which was the first in the
nation, appealed to religion (an adjunct of the common law) for its
justification, an action unnecessary given Marylands sodomy law. A
guidebook for justices of the peace revealed that the English common-law
definition of sodomy was recognized by Maryland courts.
The Victorian Morality Period, 1873-1948
During the period just before World War I, many cities in the country
established vice commissions to investigate sex conditions in the cities and
make recommendations. Maryland created a statewide commission which issued its
report in 1915. Although concentrating heavily on conditions in Baltimore, the
commission did study other cities, including Annapolis and Frederick. In its
report,15 heterosexual and homosexual activity
were castigated equally. "Perversion," which was defined as
fellatio, was noted as practiced by female prostitutes,16
as were the "unusual forms of perversion" of heterosexual masochism
and sadism. The report was erroneous both in the spelling of masochism ("mochochism")
and in referring to masochism as a desire to hurt another, with sadism defined
as a desire to be hurt.17 Conversations with
physicians revealed to the investigators that "many forms of perversion
are found among married people."18 All of
the investigation of homosexuality was confined to seven pages of a more than
thousand-page report. The investigators located 15 "young men scattered
about the city" (Baltimore) "who practiced perversion for
money." Police had gone undercover upon learning of this form of
prostitution and arrested 25 men on charges of "assault" for
consensual activity.19 Also discovered was
"a kind of organization" composed of between 40 and 60 males who
"meet in rooms and have disgusting sexual orgies." Cited as Gay
slang and labeling their speaker as Gay were terms "how charming,"
"most enchanting," "gorgeously delicious," and "oh,
my dear."20 Gay men also liked to write
letters.21 A large number of actors were Gay.22
An unidentified all-male school investigated was found to be a hotbed of
homosexuality,23 although the description of it
and a venereal disease epidemic therein sound suspiciously like a Baltimore
reform school epidemic reported in 1886.
Obviously as a result of this report, a statute of 191624
added a new section prohibiting oral sex, with a penalty of up to 10 years
and/or a $1,000 fine. The law also prohibited any undefined "unnatural or
perverted sexual practices."25 Clearly,
per the report of the Vice Commission, both homosexual and heterosexual
activity was intended to be covered, despite what the Maryland Court of
Appeals said more than seven decades later in the Schochet case (q.v.).
In 1920, Maryland enacted a law26
prohibiting soliciting for the purpose of lewdness27
and that defined "lewdness" to be only "any unnatural sexual
This section was construed by the Maryland Court of Appeals in the case of Lutz
v. State,29 from 1934. Judge T. Scott
Offutt, speaking for the unanimous court, found that the statute "is
directed to the suppression of sexual vice and perversion practiced for
The second reported case in the state was Berger v. State31
from 1941. This was a heterosexual sodomy case, with a physician being
prosecuted. Berger challenged his conviction because he had been found guilty
of both an "unnatural and perverted sexual act" and assault and
battery. Its importance is only that it stated that standard procedure in
Maryland was to charge a defendant with "several offenses" and, if
found guilty of some or all, to pass judgement only on the most serious of
The Kinsey Period, 1948-1986
The next reported case also was heterosexual in nature. In 1952, in Haley
v. State,33 the Court of Appeals
unanimously sustained the right of the state to prosecute heterosexual
"unnatural and perverted practices."
A study published early in 195634 analyzed
court sentences for those convicted of sodomy or "unnatural and perverted
practices" in the city of Baltimore over a 2˝-year period (July 1952
through December 1954). First, it was stated that penal sanctions for
naturally reflect the basic attitudes of the sentencing judge. These
are dependent upon his convictions and his prejudices, born of his early
training, his life experiences, his religious beliefs, and, perhaps above
all in this area, upon his psychosexual make-up.35
Sex offenders now constituted 20% of those referred by judges to the courts
psychiatric clinic, not because of an increase in the number of sex offenses
being committed, but because of the increasing belief of judges that
psychiatrists could be of help in such cases.36
The sentences given by judges in Baltimore did not mirror the
gross discordance that is reported to exist in some courts. There seems
to be an unexpected degree of unanimity in regard to the types of cases in
which probation should be used and in those to which long prison sentences
should be given. One cannot in fairness say of any one of these sentencing
judges that he showed an unreasonable attitude toward sexual offenders as
a group nor in any particular type of sexual offense.37
In the 2˝-year period studied, only 26 "homosexual offenders"
were before the courts, an average of one every five weeks. A table detailed
the offenses and the disposition by the court in each case. Eight of the 26
(31%) were charged with sodomy, which, under Maryland law, is limited to anal
sex. Thirteen (50%) were charged under the "unnatural and perverted
practices" law, which conceivably could cover just about any erotic act.
Four (15%) were charged with "assault" and one (4%) with
"disturbing the peace." All offenders were male and the racial
breakdown was 54% white and 46% black. Six of the eight sodomy cases were with
minors, although almost all were adolescent. In two cases, those convicted
were committed to a mental institution, and the other four received prison
terms ranging from 1˝-8 years, all under than the maximum of 10 years
allowable under state law. Two cases were of a Gay male couple whose recorded
"crimes" were "living as man & wife with youth, 20"
and "living with man as wife." No indication is given as to how they
were apprehended. The older was given probation and the younger got three
months in jail. Of the 13 charged under the "unnatural and perverted
practices" law, seven were with minors, most of them adolescents, and all
of them involving fellatio. One of the seven was of a father fellating his
13-year-old son. The other six were consensual activity between adults, four
of them fellatio and two mutual masturbation. Of the seven involved with
minors, three received probation, and three got sentences of less than a year.
The father who fellated his son got 41 years total, due to incest with his
daughter as well. Of the four "assault" cases, one involved
"touching genitals of boy in movie," one for giving a ten-year-old
boy whiskey and then masturbating him, one for "forcing 4 yr. boy to
ground," and one for "having 6 yr. boy suck his tongue."
The first case received probation with psychotherapy, and the last received
three months in jail. The other two received sentences of three or seven
years. The solitary "disturbing the peace" conviction was for
"anal intercourse with adults." The offender was a "confirmed
homosexual prostitute" and received three months in jail. Among the
"remarks" for the offenders: one of those convicted for fellatio:
"Last Job: Santa Claus." One of those convicted of anal sex:
"Psychotic after arrest." One arrested for mutual masturbation:
"Claims was asleep." The partner of one prosecuted for fellatio
"suicided after arrest."38 Despite
the small samples available to the researcher, it was noted that probation was
given to one-third of homosexual offenders, but one-half of heterosexual
offenders.39 One of the conclusions of the
study was that sexual activity between consenting adults was "viewed
benignly" by the Baltimore judges.40
In 1956, in Blake v. State,41 the
Maryland Court of Appeals unanimously rejected a challenge to the
"unnatural and perverted sexual practices" statute as being vague
and uncertain. The Court felt that
statutes should be expressed in language as specific as the subject
matter will permit, but it is obviously impossible to define some types of
crime by a detailed description of all possible cases that might arise.42
In 1957, in Gregoire v. State,43 the
Court of Appeals unanimously sustained the "unnatural and perverted
sexual practices" conviction of a man for consensual relations with two
teenage boys. One of the boys "made no objection to anything that
appellant did, although he knew it was wrong."44
The second boy said during the trial that "he made no effort to get away
from the appellant[.]"45 The Court
rejected Gregoires contention that this implied consent and made the boys
In another case from 1957, Taylor v. State,47
the Court of Appeals split 4-1 to uphold the conviction of a man for an
"assault" to commit sodomy for unzipping a teenage hustlers pants
and soliciting him. The hustler, on several previous occasions, had engaged in
fellatio with the defendant for money.48 The
majority stated that such an act constituted a breach of the public peace and
permitted prosecution of the offender under laws dealing with contributing to
the delinquency of a juvenile.49 In dissent,
Judge William Horney believed that the "assault" complained of was
not sufficient to constitute an "aggravated assault" under state
The 1958 case of Jefferson v. State,51
showed that consensual relations even with a pubescent minor was not
considered so serious a crime. Louis Jefferson, a teacher, received two years
in prison for "contributing to the delinquency of a minor" for
relations with a 14-year-old male. Because Jefferson could have received up to
10 years in prison if prosecuted under the "unnatural and perverted
practices" law, the Court of Appeals felt that he had nothing to complain
about in his appeal.
In the case of Canter v. State,52
from 1961, the Court of Appeals unanimously upheld a conviction that followed
an indictment charging the defendant with committing "buggery," even
though the term is not found in the Maryland criminal code.53
Canter and his co-defendant were caught in a consensual act of sodomy by
"police who carried flashlights."54
In Bradbury v. State55 in 1964, the
Court of Appeals unanimously upheld a sodomy conviction in which the jury
found proof of penetration despite the victims statement that he did not
think that the penis actually penetrated him.56
In 1964, the Court of Appeals decided McKenzie v. State.57
In this case, four teenagers were playing cards at McKenzies house, where,
"as a joke" three of them removed the trousers of the fourth, on
whom McKenzie then allegedly performed fellatio. One of the other three stayed
over night with McKenzie, at which time an act of fellatio was said to have
been performed on him as well.
Also in 1964, the Court of Appeals, in Daniels v. State,58
unanimously upheld the applicability of the states "unnatural and
perverted practice" law to acts between people of the opposite sex.
Following Berger and Haley, this third case seemed to create a
strong precedent that heterosexual activity was prohibited by the laws. Later,
the Court of Appeals would pretend these cases never occurred.
The first victory in a sodomy case was in 1967 in Gorski v. State.59
The Court of Appeals unanimously determined that the trial court committed
reversible error when it permitted a police officer to testify that the
defendant had been arrested in Washington for indecent exposure and "had
a sex problem."60
A law review article in 197061 gave
information as to public policy in Maryland. A state commission recommending
changes in criminal law voted 12-2 to recommend the decriminalization of
"private homosexual acts of adults." The action "may well rival
capital punishment and abortion in its potential for arousing public
controversy."62 Current practice in
Maryland included frequent entrapment in Baltimore by "decoy" police
from the vice squad,63 and suicides sometimes
resulted from sodomy arrests.64 The article
noted that the anxiety that some people feel toward homosexuality
is arguably a social harm of a sort which may justify efforts at
control if homosexual activity can be controlled.65
But "the best argument for repressing homosexuals" was that
"it performs a social good in assisting latent homosexuals to deny their
homosexuality."66 Perhaps the most
important statement concerning the governments philosophy in the article
was one of the arguments given against the repeal of sodomy laws:
"Medical science has not advanced far enough so that treatment is a
reasonable alternative for punishment. The law must do the best it can, and at
present it is better to punish than to treat."67
The actual proposed code was published in 1972.68
The code would have set an age of consent for sodomy at 19, but 16 for
penile-vaginal intercourse. The reason for this was that "males generally
mature later than females."69 Thus, the
commission believed that sodomy was a uniquely male-male event. This bias was
reinforced by two other comments as to the reasoning for the commissions
recommendation for decriminalization. One was that incarceration in "the
all-male environment of a prison" was "hardly appropriate punishment
for homosexual behavior"70 and that
"Adult homosexuals often persuade teen-aged boys to engage in homosexual
conduct by offering them money."71
The Maryland Court of Special Appeals decided the interesting case of Hughes
v. State72 in 1972. Hughes had been
convicted under the "unnatural and perverted practices" law with
another male who was under 18. The Court refused to rule on the laws
constitutionality, but pointed out that it apparently covered married couples.
Such sexual activity, it believed, was not "consistent with the
description of the marriage relationship" made by the U.S. Supreme Court
in the Griswold contraceptives case.73
Hughes also raised the novel claim that imprisonment was not appropriate for
such a crime, because in prison violators could continue to engage in such
activity. The Court ignored this aspect of his claim and decided simply that
imprisonment for criminal activity was not unconstitutional.74
Hughes also objected to the warrantless seizure of a book of his, Guidebook
to Sexual Positions between Consenting Adult Males. The Court found that
it was seized because it was spotted in the course of serving a lawful
The Maryland legislature enacted a new sexual offenses law in 1976,76
but didnt exactly follow the recommendations of the state commission. The
Senate passed a law that included repeal of the sodomy and unnatural and
perverted sexual practices laws, but the conservative House Judiciary
Committee reinstated the provisions. Repeal bills also passed the Senate in
1977 and 1987, but failed to be considered by the House.77
In the 1978 case of Lucado v. State,78
the Court of Special Appeals decided that a male victims alleged
heterosexuality was irrelevant to a decision as to his "chastity"
under the pre-1976 sexual assault laws.79
The Court of Special Appeals decided Kelly v. State80
in 1980 and rejected a privacy challenge. Part of the reason for the Courts
support for the law was its "ancient vintage," including references
in Exodus, Leviticus, and Deuteronomy.81
In 1981, the Court of Special Appeals, in Kirby v. State,82
upheld the right of a trial court to admit a 25-year-old sodomy conviction
into evidence against the defendant to impeach his credibility on a charge of
assault to commit rape.
The Court of Appeals decided the case of Neville v. State83
in 1981, which is rich in detail as to the prosecution of sodomy in Maryland.
An apparently voyeuristic police officer named Brewer noticed the act of
fellatio between Neville and a woman and hid in a wooded area witnessing the
entire performance, waiting until Neville reached orgasm to arrest the pair.
Even though Maryland law permitted a sentence of up to 10 years in prison,
defendant Neville only was fined $10 and costs, both of which were suspended.84
Undoubtedly two men or two women would not have been treated so leniently. By
a vote of 6-1, the Court rejected the privacy rights of the heterosexual
defendants. In dissent, Justice Rita Davidson claimed that the semi-secluded
wooded area in which Neville was fellated was a private place and entitled to
The curious case of Diehl v. State,86
was decided in 1982 by the Court of Appeals. By a vote of 4-3, the high court
overturned the disorderly conduct conviction of Robert Diehl for saying
"fuck you" to a police officer who arrested him illegally. Speaking
for the majority, Justice Harry Cole found that the words did not "excite
sexual desire" in the police officer, so it could not fall under the
statute being prosecuted.87 Officer Vincent
Gavin had been forced into the situation of acknowledging either that he had
acted illegally in arresting Diehl, which would throw out the prosecution, or,
in order to save the prosecution, saying that he was sexually aroused by the
thought of being penetrated anally by him.
In 1984, in Ross v. State88 the Court
of Special Appeals split 2-1 to reverse part of a conviction of a man for
unnatural and perverted sexual practices with a 15-year-old male. He
videotaped an act of fellatio with the teen and this tape and others were
seized without a warrant by arresting police officers. Ross was also convicted
of unlawful interception of oral communications on the basis of this tape but,
because it had no sound track, the Court overturned this portion of the
conviction. It allowed the conviction for the sexual act to stand.89
Period Analysis: Unlike most states, there were neither
statutory changes nor published sodomy cases in Maryland during the late
Victorian period. A statewide vice commission studying conditions in 1915
nevertheless recognized widespread sodomyboth homosexual and
heterosexualand condemned each equally. The following year, the
legislature enacted an "unnatural and perverted practices" law
with a broad prohibition of sexual activity not covered by the sodomy law.
Clearly, the law was aimed at both sexual orientations. The first two
published sodomy cases of the century concerned heterosexual sodomy. Later
decisions by the state courts rejected the idea that opposite-sex or
marital sodomy were exempt from prosecution.
The Post-Hardwick Period, 1986-Present
A prosecution for indecent exposure in a federal park was sustained in United
States v. Lanen,90 in 1989. Lanen had
entered a restroom and began masturbating in a toilet stall. An undercover
park police officer, to whom he had spoken earlier, stood watching Lanen,
whose back was to him. Lanen, on more than one occasion, looked over his
shoulder and noticed the officer, Edward Ramos, looking at him. He believed
that Ramos was interested and turned toward him, being immediately arrested
for "an obscene act."91 Lanen argued
that Ramoss apparently interested watching of him, and his inability to be
seen by the public removed his act from its public aspect.92
Judge J. Frederick Motz decided that, even if Ramos was not alarmed by the
act, "there was certainly the risk that other members of the public who
might have entered the bathroom in the interim would have been" and he
affirmed the conviction.93
In 1990, the Court of Appeals decided the case of Schochet v. State,94
in which it ruled 5-2 that the states sodomy and unnatural and perverted
sexual practices laws could not be applied constitutionally to consenting
adults of the opposite sex. In a ludicrous opinion ignoring contrary decisions
in Berger, Haley, Daniels, and Hughes, and utterly disregarding
the 1915 Vice Commission report, Justice Eldridge reviewed reported sodomy
cases and noted that all were for homosexual activity, activity with minors,
or activity in public places.95 Then, stating
that none of the reported cases in Maryland involved "consensual,
non-commercial, heterosexual activity between adults in the privacy of the
home" the Court added that this was "a strong indication that such
conduct is not within the contemplation of [the laws]."96
The Court failed to note that there also is no reported case involving two
women or consenting adult males in private, but did not add that the law does
not contemplate this activity, either, and made no mention of the possibility
of discriminatory enforcement. The Court then went on to analyze why the
sodomy and unnatural and perverted sexual practices laws were not repealed in
the 1976 law revision. The Maryland legislature "may" have kept the
law knowing that heterosexual activity was not covered, or it "may"
have decided that homosexual acts still should be prohibited, or it
"may" have decided that public sex was covered by it, or it
"may" have decided to have it cover consensual activity with minors.97
Thus, with this clear legislative mandate, the Court of Appeals yanked
heterosexual adult activity from the laws reach, even while not conceding
that the legislature "may" have wanted it to be covered. Lest anyone
think that there were two enlightened members of the Court, the dissent was to
uphold the conviction of the heterosexual defendants and to rule that
their conduct was just as illegal, and the prohibition just as constitutional,
as that of others.98
In 1991, in Lancaster v. State,99 the
Court of Special Appeals unanimously rejected the right of a sodomy defendant
to inquire into the past sexual practices of his partner. Lancaster argued
that the information was necessary to establish consent and, therefore, the
need of corroboration, but the Court disagreed.100
The Court of Appeals later heard Lancasters appeal101
and issued a curious decision. By a vote of 5-2 the Court ruled that his
conviction for unnatural and perverted practices and for a fourth-degree
sexual offense had to merge into one crime. The one that controlled, the Court
said, was the fourth-degree sexual offense, which had a maximum penalty of
only one year in jail. As the dissenters pointed out, the logic of the courts
decision was that
an unnatural or perverted sex practice by an adult on an adult carries
up to ten years imprisonment, but if committed by an adult on a 14 or
15-year-old child, there is merger of offenses and the maximum punishment
for the act will be reduced to one year.102
The sodomy and unnatural and perverted sexual practices remained in force
until 1998 and 1999, when a judge, in separate decisions, struck them down.
The first to fall was the "unnatural and perverted practices"
statute. In Williams v. Glendenning,103
Judge Richard Rombro found that the law, after its judicial limitation to
same-sex couples in the Schochet case, violated equal protection of the
law. Three months later, Rombro extended his decision to cover the sodomy law.104
Although common-law crimes remain recognized, it is unlikely that any court
would allow a prosecution for sodomy under the common-law provision if the
corresponding statute violates the constitution.105
Period Analysis: Despite a lengthy, unbroken string of case law
that heterosexual sodomy was illegal, in 1990 the Maryland Court of
Appeals reversed course without acknowledging that it did so. The Court
insisted that heterosexual sodomy never had been covered by Maryland law,
despite the 1847 guidebook, the 1915 vice commission report, and at least
four previous decisions by the same court, all to the contrary, one less
than a decade before. This decision came back to haunt the Court when
another judge struck down both the sodomy and unnatural and perverted
practices laws on equal protection grounds.
1 Printed in Laws of Maryland 1799,
Vol. I, n.p, adopted June 20, 1632.
4 Howard B. Woolston, Prostitution in
the United States Prior to the Entrance of the United States into the
World War, (New York:The Century Co., 1921; reprint Montclair
NJ:Patterson Smith, 1969), page 9.
5 Id. n.p. "The Declaration of
Rights, and the Constitution and Form of Government of the State of
Maryland," adopted Oct. 14, 1776.
6 Id. §3.
7 William Kilty, ed., A Report of All
Such English Statutes as Existed at the Time of the First Emigration of
the People of Maryland, and Which by Experience Have Been Found Applicable
to Their Local and Other Circumstances; and of Such Others As Have Since
Been Made in England or Great-Britain, and Have Been Introduced, Used and
Practised, by the Courts of Law or Equity and Also Such Parts of the Same
as May be Proper to be Introduced and Incorporated into the Body of the
Statute Law of the State, (Annapolis:Jehu Chandler, 1811), page 161,
ch. 6. Unlike most states, Maryland has a very strong history of
recognizing sodomy as a common-law crime, as well as recognizing
common-law crimes. In State v. Buchanan, 5 H. & J. 317 (1821),
the Maryland Court of Appeals noted that the common law existed, among
other reasons, "to correct the morals" of the public. In Day
v. State, 7 Gill 321 (1848), the Court mentioned the defendants
"novel and extraordinary proposition" that the common law was
not in force in Maryland.
8 Virgil Maxcy, ed, The Laws of
Maryland, Vol. II, (Baltimore:Philip H. Nicklin, 1811), page 212, ch.
LVII, enacted during a session that ran from Nov. 4 through Dec. 29, 1793.
9 Id. at 215, §X.
10 Id. at 216, §XIII.
11 Maxcy, Vol. III, page 460, §8.
12 3 H. & J. 154, decided Dec. 1810.
14 John Latrobe, ed., The Justices
Practice under the Laws of Maryland; including the Duties of a Constable,
(Baltimore:Fielding Lucas, Jr., 1847), page 318, §1539.
15 Maryland Vice Commission Report,
5 vols., (no publication data, 1915).
16 Id. Vol. 1, at 102-103;
Vol. 2, at 91; Vol. 3, at 144.
17 Id. Vol. 1, at 103.
18 Id. at 429.
19 Id. at 423.
20 Id. at 424.
21 Id. at 424-425.
22 Id. at 425.
23 Id. at 425-427.
24 Laws of Maryland 1916, page
1293, ch. 616, enacted Apr. 18, 1916.
25 Id. at 1294, §439-A.
26 Laws of Maryland 1920, page
1436, ch. 737, enacted Apr. 16, 1920.
27 Id. at 1437, §19(e).
28 Id. at 1438, §19-A.
29 172 A. 354, decided Apr. 26, 1934.
30 Id. at 356.
31 20 A.2d 146, decided May 20, 1941.
32 Id. at 148.
33 88 A.2d 312, decided May 7, 1952.
34 Manfred S. Guttmacher, "The
Homosexual in Court," American Journal of Psychiatry,
112:591-598 (Feb. 1956).
35 Id. at 591.
36 Id. at 593.
37 Id. at 596.
38 Id. at 594-595 (Table).
39 Id. at 596.
40 Id. at 598.
41 124 A.2d 273, decided July 11, 1956.
42 Id. at 274.
43 128 A.2d 243, decided Jan. 8, 1957.
44 Id. at 244.
45 Id. at 245.
46 Id. at 246-247.
47 133 A.2d 414, decided June 26, 1957.
Rehearing denied July 31, 1957.
48 Id. at 415.
49 Id. at 415.
50 Id. at 418.
51 147 A.2d 204, decided Dec. 22, 1958.
52 168 A.2d 384, decided Mar. 16, 1961.
55 197 A.2d 126, decided Jan. 30, 1964.
56 Id. at 127.
57 204 A.2d 678, decided Nov. 23, 1964.
58 205 A.2d 295, decided Dec. 7, 1964.
59 228 A.2d 835, decided Apr. 21, 1967.
60 Id. at 836-837.
61 Robert G. Fisher, "The Sex
Offender Provisions of the New Maryland Criminal Code: Should Private,
Consenting Adult Behavior Be Excluded? 30 Maryland L.Rev. 91 (Spring
62 Id. at 91.
63 Id. at 92, n.10.
64 Id. at 93, n.12.
65 Id. at 98.
67 Id. at 107.
68 State of Maryland Commission on
Criminal Law, Proposed Criminal Code, June 1, 1972.
69 Id. at 192, comment following
70 Id. at 193, 3.
71 Id. 5.
72 287 A.2d 299, decided Feb. 16, 1972.
Cert. denied by Maryland Court of Appeals, Apr. 11, 1972. Cert. denied,
409 U.S. 1025, decided Nov. 20, 1972.
73 287 A.2d, at 304.
74 Id. at 306-307.
75 Id. at 307-308.
76 Maryland Laws 1976, ch. 573,
enacted May 17, 1976.
77 For the 1977 effort, see the Washington
Post, Mar. 29, 1977, page 3C:2. For the 1987 effort, see the Washington
Blade Mar. 6, 1987, page 1; Mar. 13, 1987, page 1; Mar. 20, 1987, page
4; and Apr. 3, 1987, page 1.
78 389 A.2d 398, decided July 13, 1978.
79 Id. at 402-407.
80 412 A.2d 1274, decided Apr. 10, 1980.
81 Id. at 1277.
82 426 A.2d 423, decided Mar. 9, 1981.
83 430 A.2d 570, decided June 3, 1981.
84 Id. at 573.
85 Id. at 581.
86 451 A.2d 115, decided Oct. 13, 1982.
Cert. denied, 460 U.S. 1098, decided Apr. 18, 1983.
87 451 A.2d, at 120.
88 475 A.2d 481, decided June 6, 1984.
89 Id. at 490.
90 716 F.Supp. 208, decided June 28,
91 Id. at 209.
92 Id. at 210.
93 Id. at 211.
94 580 A.2d 176, decided Oct. 9, 1990.
95 Id. at 184-185.
96 Id. at 185.
97 Id. at 186.
98 Id. at 186-187. A law review
article praised this decision for its "sense of justice." See
Thomas F. McKeon, "The Court of Appeals of Maryland Turns to
Statutory Construction to Avoid Constitutional Right-to-Privacy
Issue," 21 U.Balt.L.Rev. 139 (1991).
99 585 A.2d 274, decided Feb. 6, 1991.
Cert. denied, 589 A.2d 73, decided May 1, 1991. Judge Eldridge voted to
hear the case.
100 585 A.2d, at 279-280.
101 631 A.2d 453, decided Oct. 7, 1993.
102 Id. at 485.
103 No. 98036031/CL-1059 (Baltimore City
Cir. Ct.), decided Oct. 15, 1998.
decided Jan. 19, 1999.
105 Maryland Constitution, Art. 5.
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