Minnesota Judge Strikes Down Sodomy Law
May 25June 7, 2001
By Arthur S. Leonard
Delila F. Pierce, a Hennepin County trial judge in Minneapolis, has
declared the Minnesota Sodomy Law unconstitutional. The ruling, in a test case
brought by the American Civil Liberties Union (ACLU), was announced on Monday,
May 21, even though the judge had signed her order almost a week earlier.
Governor Jesse Ventura, the leading defendant named in the case, released a
statement through a spokesperson that the decision was "welcome" and
"consistent with his philosophy that there are some things the government
has no business making laws about."
The Minnesota sodomy law dates back to the 19th century, and was one of
about a dozen still in effect that ban all anal or oral sex between consenting
adults, regardless of sex. (Five other laws ban only same-sex sodomy.) The law
authorized penalties of up to a year in prison and up to $3,000 in fines upon
Although it was not being actively enforced against consenting adults by
local law enforcement authorities, the legislature had rejected attempts to
repeal it on several occasions, and the chief of police in Minneapolis had
stated publicly that he expected the police to enforce this law. Various
professional licensing laws in Minnesota require professionals such as
doctors, teachers, and lawyers to swear that they are not violating any state
laws in order to get and keep their licenses.
ACLU attorneys Leslie Cooper, from the national Gay and Lesbian Rights
Project staff, and Teresa Nelson from the ACLU of Minnesota, together with
Timothy Branson, an attorney from the Minneapolis law firm of Dorsey and
Whitney, rounded up a diverse group of seven individual plaintiffs to
challenge the law, who were joined in filing the case by the Minnesota
Lavender Bar Association. Branson argued the ACLUs motion for declaratory
judgment before Judge Pierce on April 19.
The plaintiffs based their argument on the Minnesota state constitution,
which was held by the state supreme court in 1987 to include a right of
privacy. Subsequently, the court developed the state constitutional privacy
right in cases involving abortion and police searches, in both instances
finding the state right to be more protective than its federal counterpart.
This was very significant, because the U.S. Supreme Court ruled in 1986 in
Bowers v. Hardwick that the federal right of privacy was not violated by
Georgias sodomy law. The plaintiffs argued that the Bowers decision is not
binding on the Minnesota court in its interpretation of the state privacy
right, relying on a growing list of state court decisions that have
invalidated sodomy laws in Montana, Tennessee, Kentucky, Maryland, and
eventually even in Georgia.
The plaintiffs took pains to criticize the reasoning of the Louisiana
Supreme Court, which last year rejected a state constitutional challenge to a
sodomy law. Evidently, their efforts were persuasive.
Judge Pierce did not bother to write an extended opinion justifying her
decision. Instead, she devoted about a dozen pages to summarizing the
plaintiffs arguments, and then simply stated, "The Court finds
Plaintiffs reasoning persuasive and, accordingly, declares [the sodomy
statute] to be unconstitutional, as applied to private, consensual,
non-commercial acts of sodomy by consenting adults, because it violates the
right of privacy guaranteed by the Minnesota Constitution."
The laudatory statement from the governors office suggests that there
will be no appeal of this decision by the state. However, it is uncertain
whether a decision by a Hennepin County trial judge would be considered
binding in other counties. To ensure state-wide effect for the ruling, the
ACLU will petition the court to certify a statewide "plaintiff
class" in the case before rendering its final order. This might goad the
state into filing an appeal.
In an interesting precedent, when a trial court in Maryland ruled that
states sodomy law unconstitutional in an ACLU test case a few years ago,
the governor, who agreed with the ruling, negotiated a settlement of the case
by which the state agreed to be bound by a state-wide injunction against
enforcement of the law, which led to the statute being taken out of the states
criminal code books.
As of 1960, every state had a law banning consensual sodomy. More than half
of the laws have been repealed over the past 40 years, and many others have
fallen in lawsuits. Depending how one counts those laws currently under attack
where good opinions have been rendered in lower courts, today one could argue
that as few as 15 of the sodomy laws are still in effect.
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