Sodomy laws in the United States, which outlawed a variety of sexual acts, were inherited from colonial laws in the 17th century. While they often targeted sexual acts between persons of the same sex, many statutes employed definitions broad enough to outlaw certain sexual acts between persons of different sexes, in some cases even including acts between married persons.
Through the 20th century, the gradual decriminalization of American sexuality led to the elimination of sodomy laws in most states. During this time, the Supreme Court upheld the constitutionality of sodomy laws in Bowers v. Hardwick in 1986. However, in 2003, the Supreme Court changed opinion and reversed the decision with Lawrence v. Texas, invalidating sodomy laws in the remaining 14 states: Alabama, Florida, Idaho, Kansas, Louisiana, Michigan, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina, Texas, Utah and Virginia.
History
Up to Lawrence v. Texas
Colin Talley argues that the sodomy statutes in colonial America in the 17th century were largely unenforced. The reason he argues is that male-male eroticism did not threaten the social structure or challenge the gendered division of labor or the patriarchal ownership of wealth. There were gay men on General Washington's staff and among the leaders of the new republic, even though in Virginia there was a maximum penalty of death for sodomy. In 1779, Thomas Jefferson tried to reduce the maximum punishment to castration. It was rejected by the Virginia legislature. Justice Anthony Kennedy authoring the majority opinion in Lawrence v. Texas stated that American laws targeting same-sex couples did not develop until the last third of the 20th century and also wrote that:
In 1950, New York enacted a new statute that divided the crime of sodomy into three degrees. First degree sodomy, with a maximum penalty of twenty years imprisonment, is defined as being done by force as in rape, or an act with an animal or a dead body. Second degree sodomy, with a maximum penalty of ten years imprisonment, includes acts per os or per anum by a person over twenty-one years old with a person under eighteen years old. Third degree sodomy, which is a misdemeanor with a maximum of six months in prison, is any act per os or per anum not amounting to first or second degree sodomy. With this new law, New York became the first state to reduce the crime of sodomy from a felony to a misdemeanor. A psychopathic offender law was included with this statute, but covered only sexual acts with minors or with the use of force or threats. In 1950, the Attorney General issued an opinion that the governing sodomy law covered both participants in an act of fellatio, the wording of the law being broader for oral sex than for anal. This opinion would be affirmed by a court interpretation more than a decade later.
In 1965, New York enacted a new statute repealing the crime of sodomy. Due to opposition to repealing the crime of sodomy, New York enacted a new statute at the same time that criminalized sodomy and reduced the maximum penalty from six months to three months, along with excluded married couples. It created the category of sexual misconduct, defined as engaging in sexual intercourse with another person without such person's consent and engaging in sexual conduct with an animal or a dead human body, which became a class A misdemeanor. Since the new statute repealing the crime of sodomy would only be effective on 1 September 1967, it never took effect.
Prior to 1962, sodomy was a felony in every state, punished by a lengthy term of imprisonment and/or hard labor. In that year, the Model Penal Code (MPC) — developed by the American Law Institute to promote uniformity among the states as they modernized their statutes — struck a compromise that removed consensual sodomy from its criminal code while making it a crime to solicit for sodomy. In 1962, Illinois adopted the recommendations of the Model Penal Code and thus became the first state to remove criminal penalties for consensual sodomy from its criminal code, almost a decade before any other state. Over the years, many of the states that did not repeal their sodomy laws had enacted legislation reducing the penalty. At the time of the Lawrence decision in 2003, the penalty for violating a sodomy law varied very widely from jurisdiction to jurisdiction among those states retaining their sodomy laws. The harshest penalties were in Idaho, where a person convicted of sodomy could earn a life sentence. Michigan followed, with a maximum penalty of 15 years' imprisonment while repeat offenders got life.