Legal Definition of Sodomy and Why Sodomy Laws Are Unconstitutional

Sodomy laws regard some sexual acts as crimes. The range of actions that can constitute these sexual ‘misconducts’ is enormous. Hence, the law may not spell out all of them. However, these acts consist of any sexual activity deemed to be odd or immoral.

Until recently, sodomy crimes were linked only with sexual acts that involved bestiality, oral sex, and anal sex. Society viewed these acts as unnatural. However, many considered these laws to be biased because they seemed to target the gay community more. As of 2019, up to 70 countries and over five sub-national jurisdictions had laws that criminalized homosexuality.

Among the countries that criminalized homosexuality, 44 criminalized both male and female homosexuality, and 11 punished the crime with a death penalty.

Legal Definition of Sodomy

Legally, sodomy refers to oral or anal intercourse between individuals, or any sexual activity involving an animal and a human being. These acts are punishable as criminal offenses. Over the years, the term sodomy has attracted several meanings. Culturally and historically, however, the word sodomy was derived from the gay dealings of the men in the city of Sodom and Gomorrah (of biblical origin).

Courts across different states referred to sodomy as a “crime against nature” and against “nature’s divine order.” Eventually, in the United States, sodomy was classified as a felony. Since gay relationships may involve oral and anal sex, gay people are considered common targets or victims of sodomy laws.

History of Sodomy Laws

History has it that laws regarding sodomy originated from colonial laws that date back to the 1600s. Initially, these statutes mainly outlawed same-sex acts. However, many adoptees later broadened their spectrum so much that they also prohibited a variety of sexual acts between people of different sexes. In some cases, these restrictions even forbade married couples from exploring certain sexual activities.

Sodomy laws were later eliminated across many states in the 20^th century, following America’s liberalization of sexuality. Nevertheless, the Supreme Court continued to uphold the constitutionality of these laws. After a few years, however, the court found it necessary to revise its statutes. Following scrutiny, the statutes were reversed and invalidated across the remaining fourteen states.

Consensual Sodomy

Many issues have arisen concerning sodomy. One prominent topic among them is that of the infringement of people’s privacy and liberty. On these grounds, the U.S. Supreme Court revised the act against private consensual sodomy between two adults. Afterward, the new act found sodomy laws unconstitutional if the sodomy was consensual.

Adverse Effects and Why Sodomy Laws Needed Annulment

Hardly were sodomy laws ever used during criminal prosecutions. However, their existence legitimized the harassment and discrimination of homosexuals. Also, the statutes branded these people as criminals. There were three significant ways in which homosexuals suffered directly from sodomy laws.

Firstly, these laws limited the rights of gay people concerning raising children. For parents who already had children, sodomy laws justified the denial of their rights to keep custody of those children.

In some other states, gay parents received minimal visitation rights. The court found this measure necessary after resolving that such a parent would be exposing the child to an illegal lifestyle. They also argued that such exposure could be too traumatic for the young child.

Secondly, sodomy laws justified the denial of same-sex people the right to adopt children. The statute found such an environment unsafe, unhealthy, and unlawful for raising children. As such, it was difficult for same-sex people to become foster parents.

Thirdly, a person could risk missing employment if they were same-sex. In such a case, the court wouldn’t consider it discrimination because, legally, such a person was already in violation of the state’s sodomy statutes. Gay people were also liable to various other forms of discrimination, including discredit and denial during public functions.

Same-sex people also received minimal legal protection against hate crimes. Besides, gay people were ever so often disallowed domestic partnerships as a result of sodomy laws.

With time, sodomy laws became very prominent and instrumental for justifying various acts of legal unfairness, including discrimination and other such crimes. They were also influential during family law decisions, especially in a case where one party was reluctant to award custody to a same-sex parent. Notably, too, these laws were powerful influencers of adverse immigration policies.

The Cases That Led to the Annulment of the Sodomy Laws in the U.S.

Among several other issues, two significant cases led to the annulment of the sodomy laws in the United States. They were Bowers v. Hardwick (1986) and Lawrence v. Texas (2003).

1.  Bowers V. Hardwick (1986)

Facts

In 1982, Michael Hardwick (29), a gay bartender, used to work at a local gay bar in Atlanta, Georgia. One night, on his way home from work, Hardwick threw an empty beer bottle inside the trash can beside the bar. On seeing this, an observing police officer, Keith Torick, cited the bartender for drinking in public. Mr. Hardwick protested, saying that wasn’t what happened. However, Officer Torick went on to write a wrong court date on the summons. As a result, Mr. Hardwick failed to appear in court on the correct day. Therefore, an arrest warrant against Hardwick was issued.

Officer Torick was unsuccessful the first time he tried to track down Mr. Hardwick in his home. The next time, the officer went into Mr. Hardwick’s apartment when it was open. Entering, Torick went towards the bedroom door and found Mr. Hardwick and another man indulging in oral sex. The officer arrested the two men and charged them for having violated the sodomy statutes of Georgia (Annotated Code section 16-6-2). Under this law, if one submits, consents to, or performs any sexual act involving their anus or mouth and the sex organs of another, both are guilty of sodomy. Also, the offense attracted a jail penalty of not less or more than twenty years.

Court Proceedings

The federal district court dismissed Mr. Hardwick’s challenge against the sodomy statutes of Georgia without trial. Afterward, Mr. Hardwick appealed to the U.S. Court of Appeals. Meanwhile, earlier in the 1960s and ’70s, a divided panel of judges attended to similar concerns from these kinds of cases. Consequently, the U.S. Supreme Court revised the laws relating to fundamental rights and privacy. So, following this, the Court of Appeals resolved that the sodomy statutes of Georgia violated Mr. Hardwick’s fundamental human rights and privacy. This decision arose from the fact that Mr. Hardwick conducted his sexual activity in the privacy of his house.

According to the Due Process Clause of the Fourteenth Amendment and that of the Ninth Amendment, the private space of Mr. Hardwick was beyond the state regulation’s reach. However, this stand was disagreed to by Georgia’s Attorney General. He argued that in similar cases, other federal circuit Courts of Appeal across the United States upheld the constitutionality of sodomy laws. Following these discrepancies, the Attorney General petitioned the Supreme Court to reevaluate the case and issue a final resolution.

Supreme Court Proceedings

The case didn’t get framed as an issue of privacy or fundamental rights. Instead, Justice White, who wrote for the majority, took another approach. He asked, “whether the federal constitution deliberated fundamental rights to homosexuals that allowed them to indulge in sodomy and, therefore, undermine the federal sodomy statutes that have illegalized such conduct for several years?” The apparent answer here was a “no.” Worse still, though the law criminalized both same-sex and heterosexual sodomy, same-sex sodomy drew more concern. And, presented before the court, was a case involving a same-sex man.

During analysis, the court noted that under the constitution, fundamental rights and liberties pertained only to ‘ordered’ liberty. The court further pointed out that neither justice nor freedom would be in existence if one got forfeited for the other. The court also highlighted that the liberties referred to were deeply rooted in the nation’s tradition and history.

Furthermore, the court pointed out that the said liberties could never extend to any fundamental rights allowing same-sex people to indulge in any acts of consensual sodomy. This reasoning was rooted in the fact that since the nation’s founding, the states had sodomy laws as integral parts of their constitutions. Hence, there was never a time in history or tradition where same-sex sodomy was lawful. Therefore, such liberty was neither profoundly rooted in culture nor history.

Concerning Hardwick’s challenge that he performed the act within the confinements of his home, the court also responded in disagreement. To this, the court replied that “victimless crimes, like the use or possession of illegal drugs, did not escape the full weight of the law even if they were used privately or at home.” As such, any other crime, including sodomy, would not.

Finally, Mr. Hardwick affirmed that every law must hold rational grounds for its institution. However, that in the case of Georgia’s sodomy statutes, there was none but for the public opinion of homosexuality being immoral, unnatural, and therefore unacceptable. However, still, the court disagreed, pointing out that the law rests on notions of morality and that if every single statute that represented choices regarding morality were to be overturned by the due process clause, it would make the court a bustling place indeed.

In conclusion, the court upheld Georgia’s sodomy statutes and deemed it constitutional. This resolve came as a surprise to many, especially those in the civil rights and legal communities, and the Supreme Court didn’t revisit the issue for another seventeen years.

2.   Lawrence V. Texas (2003)

Facts

In mid-September 1998, John Lawrence, a same-sex man, spent a full day with two of his friends, Robert Eubanks and Tyrone Garner. All three were in the same unrestrained gay relationship. That evening, after a drinking spree in his apartment, an argument ensued over who could sleep over between Eubanks and Garner. As the argument erupted, Eubanks stormed out angrily, leaving the two men behind.

Later that night, an unknown caller phoned the county sheriff’s office. The caller reported that a black man was going bonkers in Lawrence’s apartment and that he had a gun in hand. In a few minutes, officers arrived at the residence and entered into the unlocked apartment. Upon entering, they announced their presence. However, they didn’t receive any reply, nor did they see anything alarming. Nevertheless, out of curiosity, they decided to go a little further by checking the rooms. As two deputies opened a back bedroom, they found Garner and Lawrence supposedly indulging in same-sex activities.

Both men were arrested and charged for having violated the Texas sodomy statutes of Penal Code Annotated section (21.06(a). This section stated that if an individual engaged in deviate sexual intercourse with a partner of the same sex, both of them were guilty of committing sodomy. According to Texas statutes, if there was any contact involving any part of one individual’s genitals and the anus or mouth of their partner, or any penetration of anus or genitals with an object, they had committed sodomy.

The case got duly charged to court, and both men were to stand trial. Meanwhile, the same-sex community in the U.S. had been dealt a devastating blow since the Bowers v. Hardwick case. Thus, they were firmly behind Mr. Lawrence.

Robert Eubanks later confessed that he had lied to the law enforcement officers out of anger and jealousy, in a bid to get back at his friend. He got duly punished for his crime.

Court Proceedings

In a bid to make the court view the case in a different light and prevent them from considering the transgressions as completely sexual, the brief focused on relationships, intimacy, and privacy.

The trial came before the Justice of the Peace, and both men pleaded no contest to all the charges. In other words, they agreed to the facts presented on their charges, but not their guilt. This way, they could challenge the legality of the Texas sodomy statutes.

The lawyers that defended Mr. Garner and Mr. Lawrence were tenacious in their appeals to the rulings against them. The case got taken to four different courts, including:

• the Texas Criminal Court
• the Texas Criminal Court of Appeals
• the Texas Fourteenth Court of Appeals, and finally,
• the U.S. Supreme Court

At the Supreme Court, the petitioners affirmed that the Texas law policed citizens, right into their homes, and encroached into their most private and intimate physical behavior, indirectly dictating whom they were allowed to share an essential part of their adulthood.

Supreme Court Proceedings

Justice Kennedy, who wrote for the majority, framed the question straightforwardly. He asked whether the petitioners had the freedom, as adults, to exercise their liberty under the Fourteenth Amendment’s Due Process Clause by engaging in private conduct.

Justice Kennedy reviewed the court’s definition regarding the grounds of fundamental rights to privacy. Afterward, he attended to the issue of how the sodomy laws in both Lawrence’s and Bower’s case tried to control what should be a personal relationship. He asserted that whether or not such association was entitled to formal legal recognition, it was still within the liberty of the concerned individuals to decide on without receiving punishment as criminals.

He further noted that the court characterized same-sex laws as animus to same-sex couples that survived moral and religious condemnation. Further on, he asserted that, though these beliefs were essential to some, there was no need to apply them to the whole of society. On this note, Kennedy wrote that ‘Bowers’ was incorrect at the time it was ruled, still wasn’t correct at the present day, and shouldn’t remain a mandatory precedent. Hence, “Bowers v. Hardwick ought to have, and, was now, therefore, overruled.”

Following Justice Kennedy’s resolve and the support of the majority, the Texas sodomy law got struck down. Correspondingly, all other statutes of its kind also got struck down. It was, therefore, asserted that the petitioners were duly entitled to their private lives and that the state couldn’t control or demean their identity or existence, and therefore, couldn’t label their consensual sexual private conduct a crime. The petitioners were, thus, fully covered by the Due Process Clause. As such, they had the liberty to engage in their private consensual conduct without any intervention from the government.

The Lawrence v. Texas case, therefore, became the case that finally made sodomy laws unconstitutional in the United States. However, there are still up to sixteen states in the U.S. that have continued to uphold their sodomy laws against sexual practices they deem perverted. They include:

• Alabama
• Florida
• Georgia
• Idaho
• Louisiana
• Maryland
• Massachusetts
• Michigan
• Minnesota
• Mississippi
• North Carolina
• Oklahoma
• South Carolina

The other three states target their sodomy statutes specifically at same-sex relations. They include:

• Kansas
• Kentucky
• Texas