Last edited: January 02, 2005

Privacy Affirmed

Court Wisely Rejects Sodomy Laws

Minneapolis Star Tribune, June 27, 2003
425 Portland Avenue, Minneapolis, MN 55408
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Very little is more personal and private than sexual intimacy. Now the U.S. Supreme Court has finally confirmed that consensual sexual behavior between adults is protected by privacy laws and cannot be criminalized.

In a long overdue action, the high court rendered sodomy laws moot. The justices in a 6-3 decision rightly reversed the court’s 1986 ruling that allowed states to punish homosexuals for so-called deviant sex. On Thursday they struck down a Texas ban on gay sex, ruling that the law was an unconstitutional violation of privacy.

The decision came in a lawsuit brought by two men who were charged in 1998 with violating Texas’ Homosexual Conduct Law.

During arguments before the court, Texas defended its sodomy law as consistent with the state’s interest in protecting marriage and child-rearing. And some friend-of-the-court filings argued that eliminating sodomy laws could take the court down the path of allowing same-sex marriage.

Writing for the majority, Justice Anthony Kennedy dismissed those concerns and cut to the heart of why the laws are indefensible. The men, he wrote, “are entitled to respect for their private lives. . . . The state cannot demean their existence or control their destiny by making their private sexual conduct a crime.”

Though they became more rare in recent years, four decades ago nearly every state had laws against “abnormal” sex. Since the early 1960s, 37 states have either repealed the statutes or had them blocked by state courts.

Of the 13 states with sodomy laws, four—Texas, Kansas, Oklahoma and Missouri—prohibit oral and anal sex specifically between same-sex couples. The other nine ban all consensual sodomy. Thursday’s ruling apparently invalidates them all.

Minnesota’s sodomy law is technically still on its books; the Legislature never repealed the statute. However, Minnesota’s law has been unenforceable because in 2001 a Hennepin County District Court found it unconstitutional. Several months after ruling on the constitutional question, the local court certified the decision as a class action on behalf of all Minnesotans.

In addition to being unconstitutional, these laws deserved elimination because they were often used selectively to arrest and harass gay men. During the 1970s and ‘80s, police used them during raids on gay bath houses. Other illegal activities may have occurred, but sodomy laws were used to pile on charges or as the sole violation when other charges could not be proved.

Now thanks to the Supreme Court, that type of discriminatory law enforcement has lost its legal legs.

As National Gay Pride month comes to a close, the gay and lesbian community has something else to celebrate and be proud of: America’s top court has affirmed, once and for all, that government has no place in a citizen’s private sex life.

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