Homosexuality and bisexuality

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U.S. laws that once
criminalized same-sex behavior

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Laws prohibiting homosexual behavior are commonly called "sodomy laws." They have taken many forms in different jurisdictions. Some criminalize certain behavior by opposite-gender as well as same-gender couples. It would not be much of an exaggeration to say that every sexual act except sexual intercourse between a married couple using the missionary position in the dark has been criminalized in at least one U.S. state at one time during its history.

These laws and regulations can be traced back at least to biblical times. In England, homosexual behavior was originally handled in the ecclesiastical courts. By 1791 CE, when the original 13 states ratified the Bill of Rights, they all treated sodomy as a criminal offense. By 1961, the U.S. military, and all of the states and territories maintained "sodomy" laws on their books -- some dating back more than a century. Some were worded so generally that they would even criminalize consensual oral sex in private between a married couple as a "crime against nature." In 1961, Illinois became the first American jurisdiction to repeal its sodomy law.

In 1986, the U.S. Supreme Court reviewed a Georgia case involving same-sex behavior and decided that the state's law was constitutional. They decided that a state has the constitutional authority to criminalize what it considered to be immoral behavior.

According to the Associated Press, sodomy laws remained on the books in 13 states as of the middle of 2003. "Sodomy" was illegal for everyone -- gay and straight -- in Alabama, Florida, Idaho, Louisiana, Mississippi, North Carolina, South Carolina, Utah and Virginia. In addition, four contiguous states, Kansas, Missouri, Oklahoma and Texas, criminalized certain forms of private, consensual sexual behavior between persons of the same gender, but permited them if performed by a man and woman.

During the first half of 2003, the U.S. Supreme court studied the constitutionality of sodomy legislation. In the Lawrence v. Texas case, they reviewed a Texas law. It criminalized certain sexual behavior by same-sex couples even though the same activities are quite legal if done by opposite-sex couples. In a ground-breaking decision, the Court decided on 2003-JUN-26 that adults are free to engage in private consensual sex without government oppression. They placed limits on the  ability by governments to legislate sexual morality. The sodomy laws in Kansas, Missouri, Oklahoma and Texas, were declared unconstitutional. Legal experts believe that the sodomy laws in the nine other states are now also null and void. Laws in a few states which criminalize fornication (sexual intercourse by unmarried persons) adultery, and other behaviors may also be overturned by this ruling.

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Reference:

1. David Von Drehle, "A Debate on Marriage, And More, Now Looms," Washington Post, 2003-JUN-27, Page A01, at: http://www.washingtonpost.com

Copyright © 2002 to 2008 by Ontario Consultants on Religious Tolerance
Originally written: 2002-DEC-13
Latest update: 2008-APR-16
Author: B.A. Robinson