Last edited: February 14, 2005

Scene of the crime; laws against gay sex can block everything we want: marriage, adoption, and equal rights.

The Advocate, October 27, 1998
P.O. Box 4371, Los Angeles, CA 90078
Fax: (323) 467-0173
Editorial Fax: (323) 467-6805

By Chris Bull; Judy Wieder

When two men walked into the woods off Route 146 in Rhode Island in September 1997 to have sex, the last thing on their minds was the state's archaic sodomy law. But when one of the men went to police to complain that the other man had stolen his wallet during the heat of passion, police charged the alleged thief -- as well as the victim -- with "abominable and detestable crime[s] against nature."

The arrests sparked the June repeal of the 102-year-old statute. (While the governor has not yet signed the repeal, he has said he will not veto it). "The misapplication of the law was so flagrant and so clearly mean-spirited in this case that it caught the attention of friendly legislators and editorial writers who had previously lacked the motive to work to get the law off the books," says Kate Monteiro, president of the Providence-based Rhode Island Alliance for Lesbian and Gay Civil Rights. "But who could have known that a simple sex act would jump-start the process?"

For proponents of sodomy-law repeal, the victory in Rhode Island is only the latest in a series of legal and political battles that was sparked by 1986's Bowers v. Hardwick case, in which the U.S. Supreme Court ruled that state sodomy laws do not violate constitutional privacy guarantees, thereby upholding a state's right to make and enforce sodomy laws. Such laws affect same-sex and opposite-sex couples both. The Georgia sodomy law had been challenged by Michael Hardwick, an Atlanta bartender who was arrested in 1982 for committing sodomy in the privacy of his home with another man. The statute makes it a felony to engage in "any sexual act involving the sex organs of one person and the mouth or anus of another."

Sodomy laws are usually remnants of colonial law, when "crimes against nature," including sodomy and adultery, were often punishable by death. Even though such laws are rarely enforced today, they are regularly invoked to deny rights to gay men and lesbians anyway. From custody cases to the military, they are used to bolster the argument that homosexuality is criminal behavior and therefore unworthy of legal protections or equality under the law. The laws are the shadows of old attitudes that continue to haunt the gay movement.

"Sodomy laws -- and the Supreme Court ruling upholding them -- puts the chill of criminality on gay people," says Arthur S. Leonard, a professor at New York Law School and editor of Sexuality and the Law: An Encyclopedia of Major Legal Cases. "You hear it again in almost every gay-related issue: `This person is a habitual sodomite. This is not the kind of person you want kids exposed to.'"

Perhaps the biggest obstacle to repeal of sodomy laws is the widespread belief that the laws are meaningless because they are rarely enforced. "Legislative attempts have been slowed by apathy," says David J. Garrow, author of Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade. "For many in the gay community and nongay liberal leaders, the perception of nonenforcement is more powerful than the commitment to repeal. Unfortunately, it often requires an arrest like Rhode Island's to get people moving." Apathy is not confined to opponents of the law; the late Supreme Court justice Lewis F. Powell, who cast the deciding vote in Bowers v. Hardwick, belittled the case as "frivolous."

That assessment was quickly proved wrong. Hardwick, which opinion polls show is highly unpopular, breathed new life into repeal efforts. Political and legal organizers have slowly chipped away at sodomy laws in state legislatures and courts, reducing the number from 26, when Hardwick was handed down, to 21 today. Sodomy laws are concentrated in the South, where every state except Kentucky and Tennessee has one on the books. The rest of the laws are scattered across the nation.

"Hardwick was a breakthrough because it focused public attention on the unfairness of sodomy laws," says Leonard. "It mobilized the gay community, which turned out in huge numbers for the march on Washington the next year and led to new financial support for gay legal causes." Indeed, Lambda Legal Defense and Education Fund, a gay legal advocacy organization, has more than doubled its annual budget from 1986 to this year, in part to fund anti-sodomy-law litigation.

Rhode Island's legislative repeal campaign is a textbook case that proponents of repeal should be able to emulate. Catching the opposition napping, one month before the beginning of the legislative session in January, a tight-knit coalition of groups, including gay, civil libertarian, and disability rights advocates, began meeting privately to strategize. "The religious right expected us to introduce something regarding marriage," says Monteiro. "Sodomy repeal was seen as far too challenging. They let down their guard."

Despite the well-known gay sex tryst that set the repeal efforts in motion, Monteiro says that the coalition downplayed homosexuality during the debate. "There is a tendency to think gay men when people think of sodomy," she explains. "But the law was so broad that it could include mutual masturbation. It would have been very hard for a legislature to look at a married couple, both in wheelchairs, and say, `The kind of sex you have is punishable by law.' they don't find it as hard to say that to a male couple."

Indeed, public sex is often the specter invoked to justify the laws. For instance, in Nevada, where the state legislature repealed its sodomy law in 1993, activists were forced to accept a provision that replaced the sodomy law with a ban on same-sex or heterosexual public sex. And in Massachusetts, repeal legislation died in committee last year when a lawmaker representing a district containing a well-known gay cruising area blocked its progress. In Rhode Island, activists steered clear of the problem by encouraging a white-haired state legislator named Edith Ajello to serve as spokeswoman for the cause. "When people look at Edith, they think grandmother, not bizarre fantasies about guys in leather," says Monteiro.

State legislatures are not the only place repeal advocates have made inroads. While Hardwick and the large number of conservative judges appointed during the Reagan and Bush administrations have left the federal courts generally hostile to gay rights, state courts are another matter altogether. In the American legal system, state constitutions may add to rights guaranteed under the federal constitution. And since state courts have traditionally placed a heavy emphasis on privacy rights, they have been fertile grounds for challenges to the laws. Kentucky, Texas, and Tennessee are among the states in which state courts have overturned sodomy statutes in recent years.

"We have been least successful when we seize upon a conviction at the local level and take it to the highest state court," says Leonard. "Arrests almost always involve solicitation or public sex in which a sodomy charge is tacked on. If courts are reluctant to stick their necks out, they can blame it on that situation. It's generally more effective to find clean, upright heterosexual citizens who complain about state intervention in their private lives." Indeed, a state court in Montana overturned the sodomy law by taking one such model test case.

Even so, state courts remain a last resort. "It's clearly preferable to win a legislative victory because the public is more involved, so it has more legitimacy," Leonard says. "And it may lay the educational groundwork necessary for more legislative victories in the future." In Rhode Island., however, that pattern worked in reverse. The legislature passed gay rights legislation three years before repealing the sodomy law.

Despite more than a decade of progress, political organizers still face an uphill battle. In several states religious conservatives are lobbying to recriminalize sodomy and/or increase the penalties for violating the laws. In Kentucky, where the state supreme court struck down the sodomy law in 1992, state legislators in a bipartisan effort have introduced several bills in the wake of the ruling that would criminalize same-sex sodomy. Because such legislation is required to face a public referendum before taking effect, the stakes are particularly high. "We have worked very hard to keep the bill from the floor because we know how hard it can be to fight off a ballot measure," says Maria Price, director of the Kentucky Fairness Alliance, a statewide group based in Louisville.

Price says that in turning back the recriminalization drive, her group has relied heavily on a section of the state constitution that reads: "Absolute and arbitrary power over the lives, liberty and property of freemen exists nowhere in the republic, not even in the largest majority." Early in the century, Kentucky courts struck down bills that outlawed smoking and drinking, even in the privacy of the home.

"This is a tobacco and bourbon state, so those bills were reviled," Price says. "Even the most conservative members of the legislature have been able to see the connection between those laws and the sodomy law. It has strengthened their sense that what you do in the privacy of the home cannot be violated by the state."

Veteran organizers say the fight is far from over. In fact, the religious right has turned its attention to sodomy laws, with potentially devastating results. Sue Hyde is an expert on anti-sodomy-law organizing and the northeast organizer for the Washington, D.C.-based National Gay and Lesbian Task Force. "There is a movement afoot to shore up sodomy laws and to make sure that they are more vigorously enforced," she says. "The religious right is saying that homosexuality is an unhealthy and immoral choice. It's not a big leap to say that those who refuse to renounce the choice should be punished under sodomy laws. That's the next step. I can just see it coming on the horizon." But for gay men and lesbians in Rhode Island, sodomy law is, at least for now, just a painful memory.

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