Last edited: February 14, 2005

Massachusetts SJC Is Asked to Overturn Sodomy Laws

Boston Globe, July 15, 2000
Box 2378, Boston, MA 02107
Fax 617-929-2098

By Sacha Pfeiffer, Globe Staff

After numerous unsuccessful attempts in the Legislature to repeal the state’s centuries-old sex statutes, a gay rights group has filed suit asking the state’s highest court to declare the laws prohibiting sodomy unconstitutional.

Filed by Gay and Lesbian Advocates and Defenders and several individual gay and straight plaintiffs — since the laws apply to both — the suit asks the Supreme Judicial Court to make a declaratory judgment that the sodomy laws violate state constitutional rights of privacy and dignity.

The laws make Massachusetts one of only 17 states in the nation that criminalize certain types of homosexual and heterosexual behavior, including oral sex.

Jennifer Levi, an attorney for GLAD, said the suit was spurred in part by failed legislative attempts to repeal the laws, which are rarely prosecuted, though Levi said she knows of incidents in which people have been arrested on sodomy charges.

"There have been very significant efforts made to try to address this issue through the Legislature and they have all simply hit dead ends," Levi said. "The statute is so clearly in violation of the privacy and dignity guaranteed to all citizens of the Commonwealth that it calls out for judicial redress."

The suit was also fueled by several recent legislative repeals and judicial decisions that have struck down sodomy laws in other states, including Maryland, Montana, Tennessee, Nevada, Rhode Island, New York, Kentucky, Texas, Georgia and Michigan, she said.

In the Northeast, Massachusetts stands alone as the only state with laws criminalizing sodomy.

But some conservative and religious organizations insist that the laws provide a crucial moral template.

"This issue goes to the very heart of the matter when it comes to society and homosexuality, which is that it’s been the settled conviction of civilizations for centuries that sodomy is a crime against nature," said C.J. Doyle, executive director of the Catholic Action League of Massachusetts, which has opposed legislation to repeal the state’s sodomy statues.

"We think the law is a teacher," Doyle added, "and the laws ought to remain on the books."

The suit names as defendants Attorney General Thomas F. Reilly, Suffolk District Attorney Ralph C. Martin II, and Middlesex District Attorney Martha Coakley.

A spokesman for Coakley declined to comment, saying she hadn’t yet been served with the suit. Jim Borghesani, a spokesman for Martin, said he had "never heard of a single case" in Suffolk County of a person being prosecuted for a sex act that took place in private, although arrests are frequently made for public lewdness.

Borghesani added that Martin "enjoys great support from the gay, lesbian, bisexual and transgender community."

The attorney general’s office issued a statement saying only that, "We are defending the district attorneys and look forward to the opportunity to present the case and allow the courts to clarify the issue."

Massachusetts has two sodomy statutes, one prohibiting "the abominable and detestable crime against nature," which case law has defined as anal sex, and one prohibiting "unnatural acts," which various court rulings have applied to both oral and anal sex.

Although the laws apply both to certain homosexual and heterosexual acts, Levi said their existence encourages anti-gay sentiment, since laws regulating sexual intimacy are often associated, even if incorrectly, with gay people.

And in practice, she noted, the laws are enforced almost exclusively against same-sex sexual activity.

The mere existence of the statutes sends the message that "gay men and lesbians aren’t worthy of protection as individuals in Massachusetts," she argued, adding that the laws "have a tremendously negative effect" on the dignity and self-worth of gay people.

Levi also contends that the statutes "legitimate or encourage violence, police entrapment, and even discrimination" against homosexuals.

Levi said that prosecutors have other tools to enforce laws against public lewdness, including laws against indecent exposure and public sexual exposure, charges she said are "completely distinct from sodomy."

"Striking down the sodomy statutes doesn’t remove from the state its ability to prosecute offenses involving public conduct," Levi said, noting that at least two state laws prohibit indecent exposure and public sexual exposure. "All it does is to remove the state’s ability to regulate some of the ways in which people express intimacy."

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