Sodomy Law Overturned
Blade, July 6, 2001
By Peter Freiberg
A Minnesota judge, who in May declared the states sodomy law
unconstitutional, on Monday extended that ruling to include all adult
Minnesotans, effectively ending enforcement of a law that dates back to the
1860s before statehood.
State District Court Judge Delila Pierce agreed to a request by the
American Civil Liberties Union asking her to certify her earlier ruling as a
"class action" so that it would impact the entire state, not just
the small group of plaintiffs.
"There can be no question now: Minnesotas sodomy law has been
struck down, and cannot be invoked anywhere in the state," said attorney
Leslie Cooper of the ACLU Lesbian and Gay Rights Project, which filed suit
together with the ACLUs Minnesota affiliate.
Teresa Nelson, the Minnesota affiliates legal director, said, "The
initial decision [in May] gave us 98, 99 percent of what we were looking for
in terms of having the law ruled unconstitutional, and the class certification
brings that up to 100 percent."
In May, Pierce ruled that the statute "as applied to private,
consensual, non-commercial acts of sodomy by consenting adults," was
unconstitutional because it violated the right of privacy guaranteed by the
Pierces decisions handed sodomy law opponents their third major victory
this year: In Arizona, Gov. Jane Hull (R) signed legislation in May repealing
the statute there, and in Arkansas, a court struck down the law in March,
sparking an appeal by the state.
The ACLU takes a state off its list of sodomy law jurisdictions if the
statute is no longer legally enforceable, even if an appeal is pending. With
this years actions by Arizona, Arkansas, and now Minnesota, the ACLU says,
only 15 states now have legally enforceable sodomy laws on the books, several
of which apply solely to same-sex relations. In 1961, all 50 states had sodomy
Nelson and Timothy Branson, a volunteer attorney on the case from the
Minneapolis law firm of Dorsey and Whitney, both doubt that the state will
appeal the decision striking down the sodomy law.
"If I had to bet, Id bet there wouldnt be an appeal,"
Branson said. "Were very content for there not to be an appeal, but were
certainly not afraid of an appeal."
Branson is confident that if the state does appeal to the Minnesota Supreme
Court, the justices will uphold Pierces ruling.
A major reason why an appeal is not expected is the libertarian philosophy
of Minnesota Gov. Jesse Ventura (Reform), one of the defendants named in the
lawsuit along with Attorney General Mike Hatch (D) and the state itself.
Steve LeBeau, a spokesperson for Ventura, told the Blade Tuesday that there
would definitely be no appeal of Mondays decision by the judge extending her
ruling striking down the sodomy law to include all adult Minnesotans.
The state had been severely criticized by the ACLU for opposing the request
for certification of the May ruling as "class action."
While the state argued that "class action" certification was
unnecessary because the May decision rendered the sodomy statute
unenforceable, the ACLU feared the ruling could have been interpreted as
limited to the plaintiffs.
Pierce, in approving "class action" status, asserted that the
plaintiffs "represent a broad spectrum of adults who engage in the
conduct at issue heterosexuals disabled individuals, lesbians and gay
Charles Samuelson, executive director of the ACLUs Minnesota affiliate,
hailed Mondays ruling, commenting, "The sodomy law was declared
unconstitutional, and the state had no good reason to say that it should be
unconstitutional for some people, but not everyone. Were pleased the court
LeBeau, speaking for Ventura, said there had been no decision on whether to
appeal the original sodomy law ruling. But when that ruling was handed down in
May, a spokesperson for Ventura told the St. Paul Pioneer Press it was
in line with the governors thinking, and LeBeau reiterated that to the Blade
"The way [Ventura] describes it," LeBeau said, "is getting
the government out of the bedroom. He agrees with the Republicans that you
should get the government out of the board room, and he agrees with the
Democrats that you should get the government out of the bedroom."
Ventura has taken a number of pro-gay stands, including seeking domestic
partner benefits for gay state employees. He believes, said LeBeau, that
sexual behavior is "a private issue for a person, and not an area for the
government to say anything."
Still, the ultimate decision on appealing appears to lie with the attorney
general. Betsy McAfee, a spokesperson for Hatch, said, "Were in the
process now of reviewing our options and going over them with the governors
office. No decision has been made."
The legal victory in Minnesota comes after years of efforts by gay
activists and their allies to convince the state legislature to repeal the
sodomy statute. Those lobbying efforts foundered as right-wing legislators
managed to fend off challenges to the law.
As is often the case, Minnesotas sodomy law was rarely enforced. Attorney
Branson said a search found at least 75 convictions during the 1973-98 period,
but he thought many of those probably involved prostitution.
Nevertheless, the ACLU noted that as recently as 1997, a man in Beltrami
County in northern Minnesota was prosecuted under the state sodomy law for
private, noncommercial, consensual oral sex with a woman.
Gay groups have long maintained that sodomy laws not only symbolize
oppression of same-sex relationships, but can be selectively wielded to
discriminate against gay men and lesbians in child custody, employment and
The lawsuit was filed last year on behalf of seven individuals and the
Minnesota Lavender Bar Association.
Among the plaintiffs were a quadriplegic married man who can engage only in
the kind of sex that was criminalized by the statute; a lesbian attorney in
Minneapolis who could face eviction from her townhouse because her lease
prohibits illegal activity; a married Minneapolis elementary teacher who could
lose his credentials if found to be violating a state law; and a divorced gay
man who feared losing visitation with his children for violating the sodomy
Elsewhere on the sodomy law front, the Puerto Rico Supreme Court is now
considering the ACLUs challenge to the law there. A Texas Court of Appeals
last month upheld that states sodomy law, but the decision is being appealed.
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