Last edited: February 14, 2005

Judge Throws Out Minnesota’s Sodomy Law

Bay Windows, July 12, 2001

By Peter Cassels

Minnesota became the third state this year to back away from antiquated statutes that have been used against gays and lesbians when a judge ruled July 2 that its sodomy law is unconstitutional.

In April, an Arkansas circuit court judge found that the state’s ban on consensual sex between adult, same-sex couples is a violation of the state’s constitution. And in May, Arizona Gov. Jane Hall signed a bill repealing that state’s sodomy laws.

In a case brought by the Minnesota affiliate of the American Civil Liberties Union (ACLU), Hennepin County District Court Judge Delila Pierce initially ruled on May 18 that the state sodomy law violated the state constitution’s right to privacy. Because of a legal technicality, the ruling initially applied only to a group of plaintiffs that included the Minnesota Lavender Bar Association and several Minneapolis gays and lesbians, along with a disabled married heterosexual man and a married schoolteacher, also straight. Identified only as "Jane Doe" in the lawsuit, a lesbian attorney contended that because her town house lease prohibits illegal activity, she could have been evicted because of the sodomy law. Phil Duran, a gay law student, joined the suit for the same reason. Additionally, Duran had recently taken the state bar exam, a test that could have been moot because individuals who violate state laws, including the sodomy statute, can be disbarred. Another plaintiff was Kim Nyhus, a divorced gay man who has visitation rights with his children. A former Methodist minister now working toward Episcopal ordination, Nyhus feared losing visitation with his children because of the statute.

According to Eric Ferrero, a spokesperson for the ACLU Lesbian and Gay Rights Project, the organization viewed the case as a class action suit and wanted the judge’s decision to affect everyone living in Minnesota. However, under the scope of the law, judges must certify that a class action suit represents a cross-section of the population. That certification was still pending when Judge Pierce handed down her decision in May. "There was a hearing set for late June and we expected to get that decision before she handed down anything on whether the law was constitutional," Ferrero told Bay Windows. "But she ruled on the constitutionality much faster than we’re used to."

Although Minnesota Gov. Jesse Ventura had said through a spokesperson that Judge Pierce’s action "consistent with the...principle that there are certain things the government should not have a role in," the state just days later filed legal papers seeking to limit the ruling’s impact. In Doe, et al. v. Ventura, et al, the ACLU went back to court seeking to have the decision applied across the board. The result was Judge Pierce’s ruling doing just that. The state could appeal the decision, but Ferrero said the ACLU doubts that will happen.

The ACLU said Minnesota’s sodomy law has a direct effect on citizens, including the 1997 arrest and prosecution of a Beltrami County man who engaged in consensual oral sex with a woman. The sodomy law also was used for years to help prevent passage of a state law banning discrimination based on sexual orientation. That legislation was finally enacted in 1993.

Fifteen states and Puerto Rico have laws prohibiting oral and anal sex between consenting adults, some of which only apply to same-sex intimacy, but all of which are used disproportionately against gays and lesbians.

In 1961, all 50 states (as well as Puerto Rico and the District of Columbia) had sodomy laws on the books. Since then, legislatures in 26 states have repealed them. They include Connecticut, Rhode Island, Vermont, Maine and New Hampshire, making Massachusetts the only state in New England with a sodomy law.

The ACLU has helped successfully challenge similar laws in Kentucky, Tennessee, Montana, Georgia and Maryland, arguing that they violate state constitutions. That has been — and will continue to be — the strategy the ACLU and others have followed ever since the U.S. Supreme upheld the constitutionality of Georgia’s sodomy law in Bowers v. Hardwick in the 1980s.

Since sodomy laws are rarely enforced, Ferrero was asked why it is important to gays and lesbians to get rid of them. "Direct enforcement is not all that common, but the indirect invoking of them to discriminate one way or another against gay and lesbians still goes on quite a bit," he replied. He offered two examples, both of which are illustrated by the Minnesota case: "We get contacted by people who are in custody or visitation battles for their biological children. Often, sodomy laws are used as reasons why children should not be in a home where there is criminal activity going on. We’ve also gotten into situations where teachers, doctors, lawyers, police officers and others are asked if they have ever violated any of the state’s laws. And if you answer that question truthfully, you’re in danger of losing your profession. They don’t want to hear why the law is wrong."

Just as important, Ferrero added, is what the sodomy laws say about gays and lesbians. "In a society of laws, some of its clearest statements are what it thinks is right and wrong. Sodomy laws are one of the strongest statements that we still have in this country that lesbian and gay people are second-class citizens.

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