Sodomy and the States

Eight years after the US Supreme Court ruled Texas’ sodomy laws unconstitutional in Lawrence v. Texas (2003)—a decision that technically made all sodomy laws invalid—eighteen states still continue to enforce legislation designed to criminalize any form of non-vaginal sex—butt, mouth, eye and nose—between consenting same-sex adults.

Some states push these anti-gay statutes through tight-lipped loopholes in the Lawrence ruling, while others decide to completely ignore it altogether.

For instance, Michigan can prosecute gay men under “Abominable and Detestable Crimes Against Nature” and “Gross Indecency” laws, which carry 15 year maximum prison sentences. Montana can issue a $50,000 fine to any penis inside anything but a vagina. And Virginia and South Carolina can hand those same penises a fat felony charge, as if to prove to the moral majority that oral and anal gay sex stands equal to aggravated assault, arson, battery, grand theft, rape and murder.

Over at Equality Matters, Alexis Agathocleous—staff attorney with the Center for Constitutional Rights—says: “Laws actually criminalizing the community, many people assumed, were a relic of the past. And accordingly, the LGBT rights movement shifted gears. Litigation, lobbying, advocacy, and resources, in the years since Lawrence, have overwhelmingly focused on civil institutions such as marriage and visibility in the mainstream media. In short, the mainstream LGBT community stopped talking about criminal justice.”

Despite whatever reasons these states would love to make you believe, they all bleed the same color of homophobia from their twisted, judicial hands.  Notice that in four states, sodomy is a felony punishable of up to 15 years.  The worst penalty, however, is Massachusetts which has a 20 year prison term for sodomy.  In a state where gay marriage is legal, apparently gay men cannot have sex.

Click to Enlarge

In Alabama, the penalty for breaking sodomy laws is a Class A Misdemeanor with a maximum penalty of one year in jail and a $6,000 fine.  This particular law on the books in Alabama, though no longer valid because of   Lawrence v. Texas is still on the books because it takes a statewide vote to repeal an amendment, of which all Alabama statues are.  Only in the last few years did the state of Alabama vote to repeal laws prohibiting interracial marriage (2000); however, the Constitution still requires racially segregated education in the state. Section 182 of the Constitution of Alabama disenfranchizes all "idiots and insane persons," men who interracially married and those convicted of "crime against nature" (homosexuality).  Since the statute in Alabama states that only missionary position vaginal sex is legal in the state, my sister who is married to a 350 lb man (she is only about 125 lbs.) used to joke that they could only have sex by breaking the law.  As she says, "If we had sex in the missionary position, he would crush her."  Yet it is still just as illegal to have sex with her husband with her on top as it is for me to have sex with a man.

At 340,136 words, the document is 12 times longer than the average state constitution, 40 times longer than the U.S. Constitution, and is the longest still-operative constitution anywhere in the world. (The English translation of the Constitution of India, the longest national constitution, is about 117,369 words long, a third of the length.) There is a growing movement for democratic reform of the Alabama constitution. It is spearheaded by the non-profit organization Alabama Citizens for Constitutional Reform (ACCR), which was formed out of a rally in Tuscaloosa in 2000. Alabama is not unique in having outdated and obsolete laws as part of its Constitution, but because of its length, there is just too much to correct without writing a new constitution. The ACCR has found little success in its efforts at reform.