Anal or oral intercourse between human beings, or any sexual relations between a human being and an animal, the act of which may be punishable as a criminal offense.
The word sodomy acquired different meanings over time. Under the Common Law, sodomy consisted of anal intercourse. Traditionally courts and statutes referred to it as a “crime against nature” or as copulation “against the order of nature.” In the United States, the term eventually encompassed oral sex as well as anal sex. The crime of sodomy was classified as a felony.
Because homosexual activity involves anal and oral sex, gay men were the primary target of sodomy laws. Culturally and historically, homosexual activity was seen as unnatural or perverse. The term sodomy refers to the homosexual activities of men in the story of the city of Sodom in the Bible. The destruction of Sodom and Gomorrah because of their residents’ immorality became a central part of Western attitudes toward forms of non-procreative sexual activity and same-sex relations.
Beginning with Illinois in 1961, state legislatures reexamined their sodomy statutes. Twenty-seven states repealed these laws, usually as a part of a general revision of the criminal code and with the recognition that heterosexuals engage in oral and anal sex. In addition, state courts in 10 states applied state constitutional provisions to invalidate sodomy laws. As of early 2003, eight states had laws that barred heterosexual and homosexual sodomy. Three other states barred sodomy between homosexuals.
In Bowers v. Hardwick, 478 U.S. 186, 106 S. Ct. 2841, 92 L. Ed. 2d 140 (1986), the U.S. Supreme Court upheld the Georgia sodomy statute. Michael Hardwick was arrested and charged with sodomy for engaging in oral sex with a consenting male adult in his home. A police officer was let into Hardwick’s home to serve a warrant and saw the sexual act. Although the state prosecutor declined to prosecute the case, Hardwick brought suit in federal court asking that the statute be declared unconstitutional.
On a 5–4 vote, the Court upheld the law. Writing for the majority, Justice byron r. white rejected the argument that previous decisions such as the Court’s rulings on Abortion and contraception had created a right of privacy that extended to homosexual sodomy. Instead, the Court drew a sharp distinction between the previous cases, which involved “family, marriage, or procreation,” and homosexual activity.
The Court also rejected the argument that there is a fundamental right to engage in homosexual activity. Prohibitions against sodomy were in the laws of most states since the nation’s founding. To the argument that homosexual activity should be protected when it occurs in the privacy of a home, White stated that “otherwise illegal conduct is not always immunized whenever it occurs in the home.” Because the claim in the case involved only homosexual sodomy, the Court expressed no opinion about the constitutionality of the statute as applied to acts of heterosexual sodomy.
The Bowers decision was severly criticized. Justice lewis powell, who voted with the majority, later stated that he had made a mistake in voting to affirm the law. In July 2003 the Supreme Court reversed itself on the issue of sodomy. In Lawrence v. Texas, 539 U.S. ___, 123 S. Ct. 2472, 156 L. Ed. 2d 508, in a 6–3 decision, the Court invalidated a Texas anti-homosexual sodomy law by invoking the constitutional rights to privacy.
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Barnett, Walter. 1973. Sexual Freedom and the Constitution: An Inquiry into the Constitutionality of Repressive Sex Laws. Albuquerque: Univ. of New Mexico Press.
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Hickey, Adam. 2002. “Between Two Spheres: Comparing State and Federal Approaches to the Right to Privacy and Prohibitions Against Sodomy.” Yale Law Journal 111 (January).
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West’s Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.