Last edited: January 01, 2005

S.C. Laws Used to Discriminate Against Gays, March 22, 2003

By Ed Madden

Later this month, when the U.S. Supreme Court considers a Texas law criminalizing consensual sex, South Carolina’s sex laws must also come under review. South Carolina’s law criminalizes certain sexual practices for straight and gay people alike. If the court strikes down the Texas law, justices will confirm what many have long known: Sodomy laws are unnecessary invasions of privacy, and they are used as a license for wide-ranging discrimination.

In Lawrence and Garner v. Texas, the Supreme Court has been asked to consider a Texas law criminalizing gay and lesbian sex. John Lawrence and Tyron Garner were arrested in Houston after officers responding to a false burglary call found the two engaged in consensual sex in the privacy of Lawrence’s home. The two were arrested, forced to spend the night in jail and fined $200. They were frightened and humiliated, treated as criminals.

Lambda Legal, the organization challenging the law, argues that the Texas law violates two fundamental rights of American citizens: the right to privacy and the right to equal protection.

Most states do not criminalize consensual adult sexual relations. However, 13 states still have sodomy laws, and in nine, including South Carolina, the law applies to both same-sex and opposite-sex partners.

These laws criminalize sexual behavior between consenting adults, allowing governments to intrude into the very privacy of our bedrooms—sometimes literally, as the Texas case shows.

Even when states equally criminalize gay and straight sexual relationships, the laws are usually applied unequally. More importantly, the laws are used to justify discrimination against gays and lesbians in employment, housing and family law. They are also used to intimidate gay people from exercising their First Amendment rights. Repeatedly around the nation, gay and lesbian parents have lost custody or visitation rights because of sodomy laws.

Given this history, Ruth Harlow of Lambda Legal says such laws are a “stark affront to what the Constitution promises all of us.”

South Carolina’s law, drawing on English common law of 1533, criminalizes “the abominable crime of buggery.” An archaic term, “buggery” was used as a catch-all for a range of sexual acts, including bestiality, but very rarely applied to lesbian relationships. Although English law was limited to anal sex in the early 19th century, some argue that South Carolina’s law, like most sodomy laws, includes anal or oral sex between same-sex or opposite-sex couples.

South Carolina also criminalizes adultery and fornication (or sex between unmarried people), both punishable by fines and imprisonment. Buggery is a felony crime, punishable by five years in prison and a $500 fine.

Between 1997 and 2002, S.C. court records indicate 30 cases in which the buggery law was used, though the charge was dropped in 25 of those cases, perhaps through plea bargaining.

Though South Carolina’s buggery law is rarely enforced in the courts, it is repeatedly invoked in the court of public opinion to justify discrimination against gays and lesbians.

For example, in fall 2001, former Lt. Gov. Bob Peeler used the law to argue that public universities cannot include sexual orientation in their nondiscrimination policies. Such policies, Peeler argued, would violate state laws against fornication and sodomy. Such use of the law clearly demonstrates how it is used in our state to enforce a climate of intimidation and discrimination.

Similarly, when a gay student group was trying to form [on a University of South Carolina campus] over 25 years ago, the law was invoked to deny official recognition. It took a court decision to legitimize the student group.

Society has changed a lot since then. Lambda hopes that increased knowledge and understanding about gay and lesbian people will lead to a more informed view, and that the court will strike down laws that are intrusions into the private lives of all citizens.

  • Madden, an associate professor of English and Women’s Studies at the University of South Carolina, at

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