Courts, Liberalism, and Rights: Gay Law and Politics in the United States and Canada

By Jason Pierceson | Go to book overview

5

Sodomy Laws, Courts, and Liberalism

STARTING IN THE EARLY 1990S, many state courts began to question the constitutionality of sodomy laws, generally using a libertarian defense of privacy. This has been, in large part, in response to litigation strategies of gay rights groups to eliminate sodomy laws. These events have particular relevance for this discussion: First, when courts have struck down sodomy laws, there has been little political backlash. But when courts are less aggressive, political battles between those who favor and oppose sodomy laws become more pronounced. Generally, arguments favoring privacy rights win out, but they have a more difficult time gaining resonance without court intervention. Additionally, these arguments are successful not because of a concern for gay rights, specifically the need to allow sexual minorities the same right to intimacy as the majority in the name of developing the full person; rather, because opposition to sodomy laws has found success grounding itself in starkly negative terms. Fear of the state animates these claims, almost exclusively. This line of precedent illustrates the nature of liberal discourse in the United States, especially when placed beside the less than successful attempts at same-sex marriage advocacy. This discussion will also illustrate the power of legal norms and arguments as agents of political change, especially in the context of a liberal, rights-based framework.


A HISTORY OF SODOMY LAWS

Before being invalidated by the U.S. Supreme Court in Lawrence v. Texas, sodomy laws were seldom enforced; however, they strongly affected the legal and political status of sexual minorities. They served as a barrier to gay rights legislation, since opponents of such measures argued that it is wrong to grant civil rights protection to a group whose conduct is illegal. Additionally, they were often used as shields to prevent genuine discussion of gay rights. As Richard Mohr described the situation, “sodomy laws afford an opportunity for the citizenry to express its raw hatred of gays systematically and officially without even having publicly to discuss and so justify the hatred.”1 Thus, when courts struck down sodomy laws, they were doing much more than destroying harmless or irrelevant laws; they, for good or ill, were paving the way for further gains in the realm of gay rights.

As recently as 2003, fourteen states criminalized adult consensual sodomy through legislation.2 This is quite different from the 1950s when all fifty states had such statutes and all but two classified sodomy as a felony.3 These statues often dated to colonial times4 and were a legacy of the English crime of buggery, punishable by death, which was adopted by Parliament in 1533. Before this legal classification, sodomy was considered an ecclesiastical offense and was dealt with

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