Last edited: February 14, 2005

Minnesota Judge Strikes Down Sodomy Law

LGNY News, May 25—June 7, 2001

By Arthur S. Leonard

Delila F. Pierce, a Hennepin County trial judge in Minneapolis, has declared the Minnesota Sodomy Law unconstitutional. The ruling, in a test case brought by the American Civil Liberties Union (ACLU), was announced on Monday, May 21, even though the judge had signed her order almost a week earlier.

Governor Jesse Ventura, the leading defendant named in the case, released a statement through a spokesperson that the decision was "welcome" and "consistent with his philosophy that there are some things the government has no business making laws about."

The Minnesota sodomy law dates back to the 19th century, and was one of about a dozen still in effect that ban all anal or oral sex between consenting adults, regardless of sex. (Five other laws ban only same-sex sodomy.) The law authorized penalties of up to a year in prison and up to $3,000 in fines upon conviction.

Although it was not being actively enforced against consenting adults by local law enforcement authorities, the legislature had rejected attempts to repeal it on several occasions, and the chief of police in Minneapolis had stated publicly that he expected the police to enforce this law. Various professional licensing laws in Minnesota require professionals such as doctors, teachers, and lawyers to swear that they are not violating any state laws in order to get and keep their licenses.

ACLU attorneys Leslie Cooper, from the national Gay and Lesbian Rights Project staff, and Teresa Nelson from the ACLU of Minnesota, together with Timothy Branson, an attorney from the Minneapolis law firm of Dorsey and Whitney, rounded up a diverse group of seven individual plaintiffs to challenge the law, who were joined in filing the case by the Minnesota Lavender Bar Association. Branson argued the ACLU’s motion for declaratory judgment before Judge Pierce on April 19.

The plaintiffs based their argument on the Minnesota state constitution, which was held by the state supreme court in 1987 to include a right of privacy. Subsequently, the court developed the state constitutional privacy right in cases involving abortion and police searches, in both instances finding the state right to be more protective than its federal counterpart.

This was very significant, because the U.S. Supreme Court ruled in 1986 in Bowers v. Hardwick that the federal right of privacy was not violated by Georgia’s sodomy law. The plaintiffs argued that the Bowers decision is not binding on the Minnesota court in its interpretation of the state privacy right, relying on a growing list of state court decisions that have invalidated sodomy laws in Montana, Tennessee, Kentucky, Maryland, and eventually even in Georgia.

The plaintiffs took pains to criticize the reasoning of the Louisiana Supreme Court, which last year rejected a state constitutional challenge to a sodomy law. Evidently, their efforts were persuasive.

Judge Pierce did not bother to write an extended opinion justifying her decision. Instead, she devoted about a dozen pages to summarizing the plaintiffs’ arguments, and then simply stated, "The Court finds Plaintiff’s reasoning persuasive and, accordingly, declares [the sodomy statute] to be unconstitutional, as applied to private, consensual, non-commercial acts of sodomy by consenting adults, because it violates the right of privacy guaranteed by the Minnesota Constitution."

The laudatory statement from the governor’s office suggests that there will be no appeal of this decision by the state. However, it is uncertain whether a decision by a Hennepin County trial judge would be considered binding in other counties. To ensure state-wide effect for the ruling, the ACLU will petition the court to certify a statewide "plaintiff class" in the case before rendering its final order. This might goad the state into filing an appeal.

In an interesting precedent, when a trial court in Maryland ruled that state’s sodomy law unconstitutional in an ACLU test case a few years ago, the governor, who agreed with the ruling, negotiated a settlement of the case by which the state agreed to be bound by a state-wide injunction against enforcement of the law, which led to the statute being taken out of the state’s criminal code books.

As of 1960, every state had a law banning consensual sodomy. More than half of the laws have been repealed over the past 40 years, and many others have fallen in lawsuits. Depending how one counts those laws currently under attack where good opinions have been rendered in lower courts, today one could argue that as few as 15 of the sodomy laws are still in effect.

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