Laws prohibiting sodomy existed in the penal codes of countless US says for more than 100 years, criminalizing this sexual habits between same-sex and opposite-sex partners. Two challenges to these laws ultimately made their method to the can be fried Court <1, 2>, illuminating not only just how the Court regarded the laws’ purpose and utility but also how American social norms had evolved since the laws were first placed top top the books.

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A Short background of Sodomy regulations in the united States

Sodomy legislations in the nineteenth century. Return debates about sodomy laws throughout the latter fifty percent of the twentieth and also the beforehand twenty-first century focused almost entirely on their criminalization of homosexual conduct, nineteenth-century laws generally construed sodomy as “crimes versus nature, committed with mankind or with beast” <3>. This affront to nature was commonly not identified by penal codes, so American court relied ~ above well-established common-law meanings of sodomy that involved the penetration the a “penis within the rectum of one animal, a mrs or girl, or one more man or a boy” <3>.

Punishing “homosexual sodomy” was no the driving pressure behind the implementation of these laws <4>, which were intended to attain two purposes. First, sodomy laws sought to protect “public morals and decency”; sodomy was provided along through bigamy, adultery, the creation and dissemination of obscene literature, incest, and public indecency <5>. Second, these regulations were offered to safeguard women, “weak men,” and children against sexual attack <6>. Court documents from the nineteenth century disclose that these legislations were used to prosecute nonconsensual task and the consenting adult who involved in sodomy within their homes were thought about immune from prosecution <7>.

Sodomy legislations in the twenty century. The nature and also enforcement the sodomy laws changed dramatically in the next century. The addition of oral sex to numerous sodomy laws—which increased the group of potential violators come include, because that example, guys engaging in sexual activity with other males in public locations like bathrooms—and the development of police pressures in America’s rapidly growing urban locations fueled arrests and imprisonment for violations of these statutes <8>. City and state governments vigilantly apprehended supposed criminals in an answer to public outcry versus indecency, sexual solicitation in the country cities, and the predation and molestation of minors <9, 10>. Throughout the 1950s, McCarthyism brought about state- and nationwide witch hunts of male “homosexuals” in i m sorry the plot of oral and also anal sex between consenting adult guys were conflated with boy molestation <11>.

This persecution of private sexual acts in between consenting adults produced criticism from highly influential legal authorities such as the American legislation Institute—an organization making up legal scholars, practitioners, and judges responsible because that drafting the model Penal code (MPC), i m sorry state legislatures often embraced in part or in its entirety in developing their criminal laws—and number of state commissions that suggested for the decriminalization of private sodomy in between consenting adult <12>.

In 1955 the American regulation Institute voted come decriminalize consensual sodomy, and also the MPC subsequently did not encompass such laws in that is statutory language. During the 1960s and 1970s, the United says Supreme Court established that, within the Due procedure Clause of the Fourteenth Amendment, over there exists a right to privacy that avoids states indigenous “interfer v people’s manage of their own bodies, disrupt an individual relationships, and also intrud right into the innermost sanctum of the home, the bedroom” <3>. From the foundation of this right, the Court struck down state regulations that attempted come prohibit the usage of contraceptives and intruded into marital privacy <13>, limited access come contraceptives because that unmarried civilization <14>, and minimal a woman’s best to obtain an abortion <15>. Although these rulings did not touch present sodomy laws, the ’60s and also ’70s observed momentous activity in decriminalization: eighteen states decriminalized consensual sodomy continuous with the MPC <16>. Kansas, Texas, Montana, Kentucky, Missouri, Nevada, and Tennessee decriminalized opposite-sex consensual sodomy, leave consensual same-sex sodomy as a misdemeanor crime <16>.

Other states, however, balked at together proposed reforms, suggesting that changes to sodomy laws promoted homosexuality and unnatural conduct <16>. Claims that embraced the amendment MPC saw incredible protests from religious groups and also right-wing politics interests <16>. Says such together Idaho reinstated the previous variation of the MPC (containing the criminalization the consensual sodomy), and also Arkansas, which embraced the revised MPC, comment to public outrage by recriminalizing same-sex consensual sodomy v the approval the then-State Attorney basic Bill Clinton <16>.

Bowers v. Hardwick (1986)

Facts of the case. In 1982, a 29-year-old gay male named Michael Hardwick was working as a bartender in a gay bar in Atlanta, Georgia <17>. One night, as Hardwick to be leaving the bar, he threw a beer bottle right into a trash can in front of the facility <17>. Seeing this, police officer Keith Torick cited Hardwick because that drinking in public despite Hardwick’s protestation the this was no the case <17>. Officer Torick inadvertently composed down the dorn court date on the summons, and, as soon as Hardwick go not appear in court, an arrest warrant to be issued <17>. Torick’s an initial attempt to track down Hardwick in ~ his home was unsuccessful, but, top top the 2nd attempt, Torick entered Hardwick’s unlocked apartment and also opened a bedroom door, whereby he uncovered Hardwick engaging in dental sex with an additional man <17>.

Torick arrested both men, who were then charged with violating Georgia’s sodomy legislation <17>. The statute, Georgia Annotated Code ar 16-6-2, specified that “a human commits the violation of sodomy as soon as he performs or submits to any sexual act involving the sex organs of one person and also the mouth and anus the another” <18> and also “a person convicted the the offense of sodomy shall be punished by imprisonment for not less than one nor more than 20 years” <19>.

Initial court proceedings. Michael Hardwick’s an obstacle to the Georgia sodomy legislation was dismissed without a psychological by a commonwealth district court, but, on appeal come the us Court the Appeals because that the Eleventh Circuit, a separated panel the judges looked come the thinking of those instances during the 1960s and also 1970s in which the us Supreme Court had found and also refined a basic right to privacy <20>. The appeals court uncovered that the Georgia sodomy state violated Hardwick’s basic rights because his homosexual task was a “private and also intimate association the is beyond the with of state regulation by factor of the 9th Amendment and also the Due process Clause the the Fourteenth Amendment” <20>. Georgia’s Attorney general disagreed through the judgment of the Eleventh Circuit, due to the fact that other federal circuit court of appeals had actually upheld the constitutionality of similar state statutes, and also he petitioned the can be fried Court to evaluation the case to settle the differences among the courts.

US can be fried Court. The managing opinion the the supreme Court go not frame the question prior to it in regards to a an essential privacy issue. Writing for the majority, justice White framed the issue as “whether the commonwealth Constitution confers a an essential right upon homosexuals to engage in sodomy and also hence invalidates the laws of plenty of states that still do such conduct illegal and also have excellent so for a an extremely long time” <21>. The answer to this inquiry was “no.” even though the Georgia sodomy law criminalized the actions of both heterosexuals and homosexuals, the Court’s bulk fixated ~ above the fact that the case prior to them involved a gay man.

In that is analysis, the court cited the precedent that fundamental liberties under the Constitution room “implicit in the principle of notified liberty,” such that “neither liberty no one justice would certainly exist if to be sacrificed” <22> and also that this liberties can be identified as “deeply rooted in the Nation’s background and tradition” <23>. Yet, in this case, the court announced the “it is evident to us that no of these formalities would prolong a an essential right come homosexuals to connect in action of consensual sodomy” <24>. The Court grounded its reasoning in the truth that states had had sodomy legislations in place due to the fact that the country founding, and, therefore, a best to homosexual sodomy could not it is in “deeply rooted” in tradition or background <25>.

While Hardwick likewise challenged the statute because his command was carried out in the privacy the his home, the Court responded that “victimless crimes, such as the possession and also use of illegal drugs execute not escape the law where they are committed in ~ home” <26>. Finally, Hardwick asserted the the law must have a reasonable basis because that its existence and also that over there is none because that the Georgia statute as well as the public’s see that homosexuality is immoral and unacceptable. When again, the Court disagreed, stating “The law…is constantly based on notions of morality, and also if all laws representing essentially moral options are to be invalidated under the Due procedure Clause, the courts will certainly be really busy indeed” <27>.

The court hence upheld and deemed constitution the Georgia sodomy law. This conclusion, which surprised many in the legal and civil rights communities, would certainly not be revisited through the us Supreme Court for 17 years.

Lawrence v. Texas (2003)

Facts the the case. Top top September 17, 1998, john Lawrence spent the day with Tyrone Garner and Robert Eubanks, who were in a tumultuous partnership <28>. After ~ a drunken dispute erupted end whether Eubanks, Garner, or both can stay the night at Lawrence’s place, Eubanks stormed out of the apartment <28>. Later on that night, the Harris ar sheriff’s office received a call saying that a black male was “going crazy with a gun” in Lawrence’s apartment <28>. Minute later, four sheriff’s deputies gone into the unlocked apartment and also made their presence known, yet heard and saw nothing <28>. Only once the deputies gotten in a back bedroom walk they uncover Lawrence and Garner supposedly engaged in a sex-related act <28>.

Both Lawrence and also Garner were arrested and also charged through violating the Texas sodomy law. The Texas regulation in question, Texas Penal code Annotated ar 21.06(a), stated that “a human being commits an offense if the engages in deviate sexual intercourse with one more individual that the same sex,” v “deviate sexual intercourse” characterized as “any contact between any part of the genitals of one person and also the mouth or anus of one more person” or “the penetration the the vul or the anus of one more person through an object” <29>.

Initial court proceedings. The loss prior to the can be fried Court in Bowers v. Hardwick dealt a destructive blow come the gay neighborhood in the US. In an initiative to stop the Court from viewing the transgressions as purely sexual and to frame the legal concern in a different light, the quick for Lawrence and also Garner concentrated on intimacy, privacy, and relationships <28>. In their trial prior to a justice of the Peace following their arrests, Lawrence and also Garner pled no contest to the charges—meaning they admitted to the facts of the charges but not their guilt—so the they could an obstacle the legality the the law. From there, Lawrence and also Garner’s lawyers were tenacious in appeal rulings versus them, acquisition the situation to the Texas Criminal Court, the Texas Fourteenth Court that Appeals, the Texas Criminal Court that Appeals, and, finally, to the us Supreme Court. The petitioners asserted the the Texas legislation policed citizens’ homes, intruding right into “their most intimate and private physical behavior and also dictating through whom they may share a profound component of adulthood” <30>.

US supreme Court. Writing for the majority, justice Kennedy framed the question before the Court as one of “whether the petitioners were complimentary as adults to communicate in personal conduct in the exercise of their liberty under the Due procedure Clause the the Fourteenth Amendment to the Constitution” <31>. ~ reviewing the Court’s understanding of the basis of the fundamental right come privacy, righteousness Kennedy turn his fist to just how the sodomy statues in both Bowers and the present situation sought “to control a an individual relationship that, even if it is or no entitled come formal acknowledgment in the law, is within the liberty of people to choose without being punished together criminals” <32>. The court identified laws aimed at same-sex couples as encouraged by animus towards homosexuals that occurred from spiritual and ethical condemnation. In spite of the prestige of these beliefs to some, Kennedy argued, they must not be used to the entirety of society <33>. The wrote, “Bowers was not correct once it was decided, and also it is no correct today. That ought no to stay binding precedent. Bowers v. Hardwick should be and also now is overruled” <34>.

Finally, the court’s bulk then struck down the Texas sodomy law, and, ultimately, all regulations of that is kind:

The petitioners space entitled to respect because that their exclusive lives. The state cannot demean their presence or manage their identity by making their exclusive sexual conduct a crime. Their appropriate to liberty under the Due procedure Clause gives them the full right to communicate in their conduct without intervention from the government <34>.

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The rise and fall the sodomy legislations in the United says exemplify the ways in i m sorry the law has been used to legitimize the sexual norms of a society or stand for the idealized norms it seeks to promote. However these laws, like numerous legal instruments, ended up being mainly devices of oppression the were wielded through the bulk towards members of minority groups, and the sexual norms they promulgated came to bear less and also less same to the prevailing ideas in us society. The death of these legislations through the legal obstacles of Bowers v. Hardwick and Lawrence v. Texas not only brought legislation an ext in line with contemporary sexual norms, but likewise demonstrated how far acceptance of happy citizens had actually come.