Last edited: January 01, 2005

Maryland Trial Judge Rules Sodomy Law Does Not Apply to Gays in ACLU Challenge, But Sustains Solicitation Law

Date: October 20, 1998
From: (Arthur Leonard - Faculty)
Subject: *QL-ED*: Maryland sodomy ruling

Following is the article I have prepared for the November issue of Lesbian/Gay Law Notes concerning last Friday's sodomy law ruling from Maryland – Art Leonard

Maryland Trial Judge Rules Sodomy Law Does Not Apply to Gays in ACLU Challenge, But Sustains Solicitation Law

In a surprise to the parties, Maryland Circuit Court Judge Richard T. Rombro, ruling on a motion by the defendants to dismiss for lack of standing, has construed the Maryland sodomy law, 27 M.C. sec. 554, not to apply to private, consensual sex between adults of the same sex. Williams v. Glendening, No. 98036031/CL-1059 (Baltimore City Cir. Ct., Oct. 15, 1998). Rombro also ruled on the merits of a challenge to the solicitation law, 27 M.C. sec. 15(e), rejecting the challenge.

This is a test case constructed by the ACLU of Maryland and the national ACLU Lesbian & Gay Rights Project to challenge what remains of the state's sodomy law subsequent to Schochet v. State, 580 A.2d 176 (Md. 1990), in which the state's highest court construed the statute not to apply to private, consensual heterosexual sex in order to avoid constitutional privacy concerns. The plaintiff group includes one man who had been arrested for soliciting sodomy by a vice cop, to ensure that at least one member of the plaintiff group could survive any challenge to standing. (The other members of the group are gay and lesbian couples who expressed fear of possible prosecution and a non-gay taxpayer who objected to the expenditure of public funds on enforcement of the statute.) Inclusion of the arrestee necessarily led to including a challenge to the solicitation law as well as the underlying sodomy law. The named defendants are the governor, attorney general, the Baltimore police commissioner, the Anne Arundel County executive and the county police chief.

The challenged sodomy statute provides, in pertinent part: "Every person who is convicted of taking into his or her mouth the sexual organ of any other person or animal, or who shall be convicted of placing his or her sexual organ in the mouth of any other person or animal, or who shall be convicted of committing any other unnatural or perverted sexual practice with any other person or animal, shall be fined not more than one thousand dollars ($1,000.00), or be imprisoned in jail or in the house of correction or in the penitentiary for a period not exceeding ten years, or shall be both fined and imprisoned within the limits above prescribed in the discretion of the court." Court decisions have construed this law to apply to both oral and anal sex. The solicitation statute makes it unlawful "to ... solicit ... for the purpose of prostitution, lewdness or assignation."

In their motion to dismiss, the defendants asserted that they should not have been named as individual defendants; as plaintiffs are seeking injunctive relief, the defendants claimed that it would be proper to name the state and county directly rather than individual public officials. Judge Rombro agreed, and ordered that the state and county be substituted as defendants.

The defendants also argued that none of the plaintiffs had standing to challenge the sodomy law, asserting that there is no active enforcement of the statute against same-sex adult couples having consensual sex in private. As to this, the court disagreed with defendants, finding that it "cannot say that the concerns of these plaintiffs are not real" in light of the possibility of prosecution and consequent loss of livelihood and reputation. The court also noted that there are 24 separate prosecutory jurisdictions in Maryland, so the assurances of the named defendants in this case that prosecution would not be undertaken did not resolve the matter. The court was also persuaded by decisions in other jurisdictions, most recently in Montana, finding that a similar test case plaintiff group had standing to challenge that state's sodomy law.

The court then proceeded, without explaining why, to rule on the merits of the plaintiffs' claim. The plaintiffs were seeking a declaration that the statute is unconstitutional as applied to them; the defendants argued that the statute should be construed to avoid the constitutional question that would be raised by prohibiting homosexuals from engaging in conduct that is allowed for heterosexuals. The state itself suggested that applying sec. 554 to same-sex couples would raise both equal protection and privacy concerns.

Judge Rombro, following the approach of the court of appeals in Schochet, agreed with the defendants that the statute could and should be so construed. "It cannot be doubted, as Defendants concede, that there would be an equal protection violation if acts, considered not criminal when committed by a heterosexual couple, could be prosecuted when practiced by a homosexual couple. There is simply no basis for the distinction." Thus, seeking to avoid the constitutional problem, "this court. . . will hold that the statute as it is written does not encompass consensual, non- commercial, heterosexual or homosexual activity between adults in private."

However, Rombro refused to strike down the solicitation statute, rejecting the plaintiffs' argument if the underlying act is not illegal, then solicitation to commit the act cannot be penalized either. Plaintiffs based their argument on People v. Uplinger, 447 N.E.2d 62 (N.Y. 1983), cert. dismissed, 467 U.S. 246 (1984), in which New York's highest court held that, having invalidated application of the sodomy law to consensual adult sex in 1980, it must thereafter invalidate a loitering statute as it applied to charges of soliciting deviate sexual intercourse.

Rombro found the New York case distinguishable in various respects. First, he noted that the Maryland law does not single out homosexuals, but rather prohibits all solicitation for engaging in lewdness. "Clearly one segment of society is not singled out." Next, the New York law was a loitering law, whereas the Maryland law focuses directly on solicitation. Finally, the Uplinger court had noted that the legislature could pass a law regulating offensive public conduct. "The Schochet decision held that acts between consenting adults which were conducted in private are not criminal," Rombro noted; "An unwanted solicitation is neither private nor consensual."

"This court believes that the varied ramifications of a solicitation make it inappropriate for a court to declare such a statute facially unconstitutional. Certainly there is a difference whether the solicitation occurs in a bar, gay or straight, [or] in a shopping mall. In the latter case, there is involved an element of harassment and nuisance; cases arising from that set of facts usually come about because of merchant complaints that their customers have received unwelcome overtures."

Rombro concluded by entering an order declaring that 27 M.C. sec. 554 "does not apply to private, consensual, non-commercial sexual activity." Interestingly, as this was an early stage in the litigation and the parties had not expected a ruling on the merits in this dismissal motion, the court had not yet certified the case as a class action. However, having substituted the state and county as defendants, it appears that this order should have the effect of banning prosecutions under sec. 554 throughout the state.

As we went to press, there was no announcement whether either the state or the plaintiffs would appeal. As the court actually adopted the reading of sec. 554 urged by the state while sustaining the constitutionality of the solicitation law, it seemed unlikely the state would want to appeal. As the invalidation of sec. 554 as applied to consensual sex would significantly undermine the justification for enforcing the solicitation law in many circumstances, it is possible that the plaintiffs will conclude that an appeal at this point is not necessary, although lack of an appeal means that there will be no published appellate decision to cite in this case. (Perhaps the legislature can be persuaded to revise the law so that it will explicitly apply only to public and/or non-consensual sex, thus obviating any problem about reliance on an unpublished trial court decision.)

Commenting on the decision, ACLU Project Director Matt Coles noted that sodomy laws are frequently invoked by gay rights opponents to justify anti-gay discrimination. Now, at least in Maryland, "they can no longer justify opposition to lesbian and gay rights by saying that we are criminals once these laws are struck from the books." Lead attorney on the case for the ACLU of Maryland is Dwight Sullivan.

Arthur S. Leonard, Professor, New York Law School or

[Home] [News] [Maryland]