DE-CRIMINALIZING SAME-SEX BEHAVIOR

Changes in state laws since the 1960s

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Changes in legislation since the 1960s:

Prior to 1962, the U.S. military, and all of the states and territories had 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. The penalties for violating sodomy laws -- often called a "crime against nature" were often severe. In 1961, Illinois "adopted the American Law Institute's Model Penal Code, which decriminalized adult, consensual, private, sexual conduct. They were the first U.S. jurisdiction to repeal its sodomy law. _1,2

During the 1970s, laws were repealed in additional 18 states and two territories: American Samoa, California, Colorado, Connecticut, Delaware, Guam, Hawaii, Indiana, Iowa, Ohio, Maine, Nebraska, New Hampshire, New Jersey, New Mexico, North Dakota, Oregon, South Dakota, Vermont, Washington state, West Virginia, and Wyoming.  Alaska, Nevada, North Mariana Islands, and the Virgin Islands followed suit during the 1980s. Three more jurisdictions, the District of Columbia, Nevada, and Rhode Island did so during the 1990s. Arizona repealed its law in 2001.

In the early 1990s, many conservative Christian individuals and groups, including local organizations, state-wide groups, independent churches, the National Association of Evangelicals, the Christian Coalition actively campaigned to either defeat or overturn gay rights legislation. Sometimes, the Roman Catholic Church and conservative black pastors joined the battle against equal rights and protections for gays. According to author Gary Comstock: "The leaders of this movement advocated a codification of antihomosexual laws not unlike that of colonial New England. Some even discussed, and others called for, the reinstitution of capital punishment for homosexual behavior." ₃

According to SodomyLaws.org, by late 2002, only 14 states, Puerto Rico and the U.S. military still had enforceable sodomy laws on the books. According to the Associated Press, laws in 13 states remain on the books. "Sodomy," which has many definitions in law, is illegal for everyone in Alabama, Florida, Idaho, Louisiana, Mississippi, North Carolina, South Carolina, Utah and Virginia. In addition, four contiguous states, Kansas, Missouri, Oklahoma and Texas, criminalize certain forms of sexual behavior between persons of the same gender, but permit them if performed by a man and woman. ₄

Penalties range from life imprisonment in Idaho, to 20 years imprisonment in Oklahoma and Puerto Rico, to as few as 60 days jail time in Florida. Concurrent fines range from $2,000 in Alabama and Louisiana to $500 in Texas. Of the 14 jurisdictions, only the law in Texas does not include a jail sentence. ₅

Although these laws remain on the books in many jurisdictions, only a few states still attempt to enforce them. It is probably impossible to mount a successful repeal campaign in most of these states, because of opposition from religious conservatives. It will probably require an action of the U.S. Supreme Court to overturn the laws.

References:

1. The text of the Supreme Court's decision in  Bowers v. Hardwick is online at FindLaw. See Footnote 7 at:  http://caselaw.lp.findlaw.com/scripts/
2. Model Penal Code 213.2 (Proposed Official Draft 1962)," American Law Institute.
3. Gary Comstock, "Unrepentant, self-affirming, practicing: Lesbian/Bisexual/Gay People within organized religion," Continuum, (1996), Page 12. Read reviews or order this book safely from Amazon.com online book store
4. We urge you to not make personal decisions based on this information. It is possible that additional states may have passed new legislation between the time that this list was prepared, and now.
5. "Laws in the USA," SodomyLaws.org, at: http://www.sodomylaws.org/usa/usa.htm

Copyright © 2002 & 2003 by Ontario Consultants on Religious Tolerance
Originally written: 2002-DEC-13
Latest update: 2003-JAN-17
Author: B.A. Robinson