Last edited: February 13, 2005



"Public Opinion and State Sodomy Laws"
By Gregory B. Lewis
Andrew Young School of Public Policy
Georgia State University

ABSTRACT: Unlike the legislative history on most gay rights issues, sodomy law repeals started and ended early. Twenty-two states repealed their laws by 1980 and only four more did so in the 1980s and 1990s, when both the lesbian and gay movement and public support for gay rights seemed stronger. This paper explores the role of public opinion in explaining the anomalous pattern of sodomy law repeal. First, I briefly discuss the history of criminalization and decriminalization of oral and anal sex. Second, I examine trends in public opinion on homosexuality and gay rights. Public attitudes toward legalizing gay sex do not follow the clear upward trends of attitudes on civil liberties and equal employment opportunities but more strongly resemble the generally stable disapproval of gay sex. Third, using 17 years of General Social Survey (GSS) data on whether homosexual relations are "always wrong" and 15 additional surveys on whether they should be legal, I develop regional and state measures of public opinion, examine whether the differences can be explained by the demographic characteristics of their citizens, and investigate the relationship between state public opinion and the current legal status of same-sex sexual relations. States vary substantially in their support for legalizing homosexual relations, and state public opinion is at least moderately related to sodomy law repeal.

Contact: Gregory B. Lewis
Andrew Young School of Policy Studies
Georgia State University
Atlanta, GA 30303-3083
Phone: (404) 651-4443

Immorality and Illegality: Hard Time For a Victimless Crime?
Jeremy Patrick, Student, Chadron State College 

In this brief essay, Jeremy Patrick, a student at Chadron State College in Western Nebraska argues that, based on John Stuart Mill's "Harm Principle," the law should not prohibit a person from doing something unless and until "he reasonably and substantially harms another or intentionally creates a situation with a reasonable likelihood of harming another." Examining gambling, sodomy and drug laws, he concludes that paternalism has no place in a society based on individual liberty and free will, and that to prohibit a person from committing an act that does not harm others is "a grave injustice."

Law, Morality and Sodomy: The Bowers Majority in Bed with Lord Devlin
Mary Sylla, Student, University of North Carolina at Chapel Hill School of Law 

This brief piece examines Bowers v. Hardwick in light the philosophical debate about the relationship law to private morality-acts which do not harm others, but which are considered immoral and therefore prohibited by the criminal law. It lays out the philosophical debate among Lord Patrick Devlin, H.L.A. Hart and Joel Feinberg, and concludes that the majority in Bowers adopted the antiquated notion that law may enforce private morality, despite the dissent ably pointing out the more current philosophical arguments against this position. 

Bowers v. Hardwick, Romer v. Evans, and the Meaning of Anti-Discrimination Legislation 
Prof. Marc A. Fajer, University of Miami School of Law 

In this piece Prof. Fajer discusses the relationship between the Bowers v. Hardwick and Romer decisions, arguing that Justice Scalia's assertion that Bowers provides a rational basis for Amendment 2 ignores (1) reality, including non-enforcement of sodomy statutes (2) that those perceived to be gay, whether correctly or incorrectly, can suffer discrimination and (3) that anti-discrimination laws protect both gay and straight individuals. He concludes that,
contrary to Scalia's position, Bowers in no way resolves the issues raised by Romer. 

Prevalence of sodomy by the US adult population

Footnote 3, from Schochet v. State, 541 A.2d 183 (Md. App. 1988)

In his first report, Sexual Behavior in the Human Male (1948), Alfred Kinsey found that fewer than half of the men interviewed engaged in fellatio or cunnilingus, even during marriage. In the category of highest incidence—married men with 13+ years of education—45.3% performed cunnilingus and 42.7% engaged in fellatio. Five years later, in his Sexual Behavior in the Human Female, Kinsey reported that 54% of the married women interviewed had engaged in pre-coital cunnilingus and 49% had engaged in fellatio, See also P. Gebhard and A. Johnson, The Kinsey Data (1979). In their 1977 Redbook Report on Female Sexuality, C. Tavris and S. Sadd found that 93% of wives responding reported having engaged in cunnilingus and 91% had engaged in fellatio. They concluded from this response that, "Today it is clear that if the sexual revolution has occurred anywhere, it is in the practice and acceptance of oral sex. Among people under age twenty-five, it is virtually a universal part of the sexual relationship."

[That is from 1977, so it could be updated to say that for people under 50, it is universal. –Bob]

P. Blumsteln and P. Schwartz have reported similar statistics—93% of heterosexual couples had engaged in cunnilingus and 90% had engaged in fellatio. See also W. Masters, V. Johnson, and R. Kolodny, Human Sexualily 393 (1985). Nor is this phenomenon confined to the young. E. Brecher reports In Love, Sex, and Aging 358-59 (1984), that, among people over 50, 49% of women and 56% of men engaged in cunnilingus and 43% of women and 49% of men engaged in fellatio.

B. The Proscribed Sexual Conduct is an Important Aspect of Private Sexual Expression for Gay Men and Women.

From Campbell v. Sundquist - American Psychological Association Brief of Amici Curiae

A very substantial percentage of all adult American men and women engage in the intimate conduct that T.C.A. 39-13-510 proscribes when engaged in by persons of the same gender. Thus, in 1994, a major study of sexual behavior in the United States found that the 76.6 percent of adult males had performed oral sex, while 78.7 percent had received oral sex.[55] The corresponding figures for adult females were 67.7 percent and 73.1 percent.[56] And, although less information is available on the incidence of anal intercourse between men and women, research indicates that significant numbers of heterosexuals engage in that activity as well.[57]

Just as they are normal to many heterosexual relationships, oral and anal sex are among the primary forms of sexual expression for gay people. Surveys have shown that oral sex is a primary vehicle for sexual expression for both gay men and lesbians, and that anal intercourse is a primary means of expression for gay men.[58]


55. NORC Study, supra, at 98 [E. Laumann, J. Gagnon, R. Michael & S. Michaels, The Social Organization of Sexuality: Sexual Practices in the United States (1994). The Laumann study, based on a survey of a representative sample of American adults between the ages of 18 and 60 and conducted by the National Opinion Research Center at the University of Chicago - from footnote 8]. In the same study, 26.8 percent of men and 18.8 percent of women reported that they had performed active oral sex in their most recent sexual experience. Id. Another study found that 90 percent of the heterosexual couples studied had engaged in oral sex. See Blumstein & Schwartz, supra, at 236. This national study of 12,000 people compared married couples, unmarried heterosexual couples, gay male couples, and lesbian couples currently living together. The researchers also reported that 72% of married and unmarried heterosexual couples engaged in fellatio, and 74% engaged in cunnilingus, every time they had sex, frequently, or sometimes. Id; see also C. Tavris & S. Sadd, The Redbook Report on Female Sexuality (1977) (85% of married couples engaged in cunnilingus, and over 83% engaged in fellatio, often or occasionally); M. Hunt, Sexual Behavior in the Seventies 198-99 (1974) (90% of married couples under 25 years old engaged in oral sex).

56. NORC Study, supra, at 98.

57. The University of Chicago researchers found that 25.6 percent of men and 20.4 percent of women had engaged in anal intercourse. NORC Study, supra, at 99. See also International Survey of AIDS Educational Messages and Behavior Change (1988 data collected by Louis Harris & Associates for Project Hope, Center for Health Affairs, 2 Wisconsin Circle, Chevy Chase, Maryland); Hunt, supra, at 204; Reinisch, Sanders & Ziemba-Davis, The Study of Sexual Behavior in Relation to the Transmission of Human Immunodeficiency Virus: Caveats & Recommendations, 43 Am. Psychologist 922 (1988).

58. In the University of Chicago survey, 89.5 percent of the male respondents who identified themselves as either homosexual or bisexual having engaged in oral sex. NORC Study, supra, at 318. Among that same group, 75.7 percent had engaged in active anal sex at least once since puberty and 81.6 percent had engaged in receptive anal sex at least once since puberty. Id. In the NORC survey, 71.4 percent of female respondents who reported same-gender encounters during the previous five years had engaged in active oral sex; 82.1 percent of that group had engaged in receptive oral sex. Id. at 318. Another study reported that 89% of gay male couples and 77% of lesbian couples regularly engage in oral sex. Only 1% and 4%, respectively, reported never engaging in oral sex with their partners. Blumstein & Schwartz, supra, at 236. 17% of male couples and 12% of lesbian couples reported engaging in oral sex every time they had sexual relations. Id. Another major study, limited to male couples, found that about 95% of the sample reported engaging in fellatio and about 71% reported engaging in anal intercourse at some time during the preceding year. McWhirter & Mattison, supra, at 277. See also P. Gebhard & A. Johnson, The Kinsey Data: Marginal Tabulations of the 1938-1963 Interviews Conducted by the Institute for Sex Research (1979); Bell & Weinberg, supra, at 328-30.