Scene of the Crime; Laws against Gay Sex Can Block Everything We Want: Marriage, Adoption, and Equal Rights

By Bull, Chris; Wieder, Judy | The Advocate (The national gay & lesbian newsmagazine), October 27, 1998 | Go to article overview
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Scene of the Crime; Laws against Gay Sex Can Block Everything We Want: Marriage, Adoption, and Equal Rights


Bull, Chris, Wieder, Judy, The Advocate (The national gay & lesbian newsmagazine)


When two men walked into the woods off Route 146 in Rhode Island in September 1997 to have sex, the last thing on their minds was the state's archaic sodomy law. But when one of the men went to police to complain that the other man had stolen his wallet during the heat of passion, police charged the alleged thief -- as well as the victim -- with "abominable and detestable crime[s] against nature."

The arrests sparked the June repeal of the 102-year-old statute. (While the governor has not yet signed the repeal, he has said he will not veto it). "The misapplication of the law was so flagrant and so clearly mean-spirited in this case that it caught the attention of friendly legislators and editorial writers who had previously lacked the motive to work to get the law off the books," says Kate Monteiro, president of the Providence-based Rhode Island Alliance for Lesbian and Gay Civil Rights. "But who could have known that a simple sex act would jump-start the process?"

For proponents of sodomy-law repeal, the victory in Rhode Island is only the latest in a series of legal and political battles that was sparked by 1986's Bowers v. Hardwick case, in which the U.S. Supreme Court ruled that state sodomy laws do not violate constitutional privacy guarantees, thereby upholding a state's right to make and enforce sodomy laws. Such laws affect same-sex and opposite-sex couples both. The Georgia sodomy law had been challenged by Michael Hardwick, an Atlanta bartender who was arrested in 1982 for committing sodomy in the privacy of his home with another man. The statute makes it a felony to engage in "any sexual act involving the sex organs of one person and the mouth or anus of another."

Sodomy laws are usually remnants of colonial law, when "crimes against nature," including sodomy and adultery, were often punishable by death. Even though such laws are rarely enforced today, they are regularly invoked to deny rights to gay men and lesbians anyway. From custody cases to the military, they are used to bolster the argument that homosexuality is criminal behavior and therefore unworthy of legal protections or equality under the law. The laws are the shadows of old attitudes that continue to haunt the gay movement.

"Sodomy laws -- and the Supreme Court ruling upholding them -- puts the chill of criminality on gay people," says Arthur S. Leonard, a professor at New York Law School and editor of Sexuality and the Law: An Encyclopedia of Major Legal Cases. "You hear it again in almost every gay-related issue: `This person is a habitual sodomite. This is not the kind of person you want kids exposed to.'"

Perhaps the biggest obstacle to repeal of sodomy laws is the widespread belief that the laws are meaningless because they are rarely enforced. "Legislative attempts have been slowed by apathy," says David J. Garrow, author of Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade. "For many in the gay community and nongay liberal leaders, the perception of nonenforcement is more powerful than the commitment to repeal. Unfortunately, it often requires an arrest like Rhode Island's to get people moving." Apathy is not confined to opponents of the law; the late Supreme Court justice Lewis F. Powell, who cast the deciding vote in Bowers v. Hardwick, belittled the case as "frivolous."

That assessment was quickly proved wrong. Hardwick, which opinion polls show is highly unpopular, breathed new life into repeal efforts. Political and legal organizers have slowly chipped away at sodomy laws in state legislatures and courts, reducing the number from 26, when Hardwick was handed down, to 21 today. Sodomy laws are concentrated in the South, where every state except Kentucky and Tennessee has one on the books. The rest of the laws are scattered across the nation.

"Hardwick was a breakthrough because it focused public attention on the unfairness of sodomy laws," says Leonard.

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