Last edited: January 02, 2005

Maryland’s Criminal Ban on ‘Unnatural Sex’ Targeted by ACLU Class-Action Suit

American Civil Liberties Union
For Immediate Release, February 5, 1998

BALTIMORE—The American Civil Liberties Union today filed a class- action lawsuit challenging a Maryland law that criminalizes intimate relations only between people of the same gender, asserting in court papers that the law is unconstitutional.

The suit, filed this morning in Baltimore City Circuit Court on behalf of five Maryland residents, including the Mayor Pro-Tem of Takoma Park, targets the state’s "unnatural or perverted sexual practices" statute. The law, which dates back to 1916, makes it a felony for lesbians and gay men to engage in oral sex and attaches penalties of up to $1,000 or 10 years in prison.

"The state has no business policing the private, intimate relations of its citizens," said Dwight Sullivan, staff attorney with the ACLU of Maryland. "Moreover, this law violates the very meaning of equal protection by targeting only lesbians and gay men."

The ACLU’s complaint charges that the law violates the equal protection and privacy rights of lesbians and gay men guaranteed by both the state and federal Constitutions.

Few people are sent to prison for engaging in oral sex, but such laws are often used to deny lesbians and gay men a range of other rights, said Michael Adams, a staff attorney with the ACLU’s National Lesbian and Gay Rights Project, which is bringing the case together with the ACLU of Maryland.

"This case is about securing basic civil liberties," Adams said. "Laws criminalizing sexual intimacy have been used in workplaces to deny lesbians and gay men jobs. They have been used to take children away from parents who are gay. They have even been used to arrest gay people for having conversations that are no different from what one could expect to hear at a bar, a singles dance, or a locker room."

Indeed, one of the plaintiffs in the case, a federal employee, was arrested by Anne Arundel police officers simply because he agreed to go home with an undercover male officer. As a result of the arrest record, he had difficulty in obtaining a security clearance when he was promoted at his government job. He has chosen to be identified only as "John Doe" in court papers out of fear of losing his job.

The other plaintiffs in the case have never been charged with violating the law, but they fear arrest and prosecution for engaging in intimate activities with their partners.

Under the Maryland Constitution, plaintiff Bruce Williams, Mayor Pro- Tem of Takoma Park, would lose his office if he were convicted under the "unnatural sex" law. His partner Geoffrey Burkhart could be drummed out of his job.

Plaintiffs Catherine Brennan of Baltimore and Lawrence Jacobs of Montgomery County are lawyers who could have their professional licenses revoked because violation of the "unnatural sex" law is considered a felony.

Combined, the ACLU said, the five represent a broad class of Maryland individuals who are negatively impacted by the state’s law.

Laws criminalizing sexual intimacy, including sodomy, were once on the books in all 50 states, but many have been repealed or struck down by the courts as unconstitutional. Most recently, the Montana Supreme Court voided its same-sex sodomy law last July, concluding that the government has no place in the private bedrooms of consenting adults.

Sodomy and oral sex laws remain today in twenty-one states, 15 of which target intimate activities for both gay and heterosexual couples. The remaining six states, including Maryland, have laws that only target lesbians and gay men. A same-sex law in Kansas is currently being challenged by the ACLU before the state appeals court.

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