Anti-Sodomy Laws: Were Lesbians Included Or Excluded?

Sodomy laws, which criminalize certain sexual acts, have been used to discriminate against and control the lives of lesbians and gay men. While these laws were initially derived from church law and designed to prevent non-procreative sexuality and any sexuality outside of marriage, they began to be used specifically against gay people in the 1960s. In the US, some states explicitly rewrote their laws so that they only applied to gay people, while in others, the laws were applied to all couples but treated as if they were aimed at gay people. These laws have been used to limit the ability of gay people to raise children, to justify firing or denying jobs to gay people, and to deny equal treatment to gay people in public debate. While the US Supreme Court ruled in 2003 that state laws criminalizing private, non-commercial sexual activity between consenting adults are unconstitutional, as of 2024, 12 states still had laws against consensual sodomy.

Sodomy laws were initially derived from church law

In the story, two angels are invited by Lot to take refuge with his family for the night. However, the men of Sodom surround Lot's house and demand that he bring out the strangers so that they may "know" them, which is interpreted as a euphemism for sexual intercourse. Lot protests and offers his virgin daughters instead, but the Sodomites threaten to "do worse" with Lot than they would with his guests. The angels then strike the Sodomites blind.

The interpretation of this story has varied over time. Some argue that the primary sin of Sodom was a violation of hospitality laws, while others claim that it was homosexual intercourse. This interpretation is supported by the Epistle of Jude in the New Testament, which states that Sodom and Gomorrah "indulged in sexual immorality and pursued unnatural desire".

The term "sodomy" was originally restricted to homosexual anal sex but has since been expanded to include oral sex and bestiality. Sodomy laws, which criminalize these acts, have a long history in many parts of the world, including Europe, the United States, and various religious civilizations. In the Western world, many of these laws have been overturned or are no longer enforced. However, as of 2024, there are still a handful of countries where sodomy laws remain in place, primarily in Africa, Asia, and the Caribbean.

In the United States, sodomy laws were initially derived from church law and were designed to prevent non-procreative sexuality and any sexuality outside of marriage. While these laws often targeted sexual acts between people of the same sex, they also included broad definitions that outlawed certain sexual acts between people of different sexes, including married couples. These laws were used as a form of discrimination against gay people and to justify denying them various rights, such as the ability to raise children or gain equal employment opportunities.

The gradual decriminalization of American sexuality law in the mid to late 20th century led to the elimination of anti-sodomy laws in most U.S. states. This process was accelerated by the Supreme Court's decision in Lawrence v. Texas in 2003, which invalidated all sodomy laws in the remaining 14 states. However, as recently as 2022, there were still states with laws against consensual sodomy, even though they were rarely enforced.

They were used to deny gay parents custody of their children

Anti-sodomy laws have been used to deny gay parents custody of their children. In the United States, these laws were originally derived from church law and designed to prevent non-procreative sexuality anywhere and any sexuality outside of marriage. While they often targeted sexual acts between persons of the same sex, many anti-sodomy statutes employed definitions broad enough to outlaw certain sexual acts between persons of different sexes.

In the late 1960s, as the gay rights movement began to make headway, social conservatives began to invoke anti-sodomy laws as a justification for discrimination. In nine states, these laws were explicitly rewritten to apply only to gay people. In two states, courts decided that anti-sodomy laws could not be applied to private heterosexual conduct, leaving what amounted to same-sex-only laws in effect. In many other states, government agencies and courts treated anti-sodomy laws that, as written, applied to all couples, as if they were aimed at gay people.

In Mississippi, courts refused to transfer custody of a teenage boy to his father, despite the fact that the boy's mother's new husband had repeatedly beaten the mother in the boy's presence. A lower court and the state Supreme Court acknowledged that the boy's father could provide a better home for his son, but denied him custody because he is gay, and Mississippi has an anti-sodomy law.

In Virginia, a number of parenting cases have hinged on the state's anti-sodomy law. In the well-known Sharon Bottoms case, Bottoms' mother took custody of Bottoms' child because Bottoms is a lesbian, and thus a criminal under the state's anti-sodomy law.

In Alabama, Arkansas, Mississippi, Missouri, North Carolina, North Dakota, Pennsylvania, South Dakota, and Virginia, anti-sodomy laws were used to justify denying gay parents custody of their own children. In Florida and Mississippi, these laws were also used to justify refusing to let gay people adopt.

They were used to justify firing gay people or denying them jobs

Anti-sodomy laws have been used to justify firing gay people or denying them jobs. In Bowers v. Hardwick (1986), the U.S. Supreme Court decided that the U.S. Constitution allowed Georgia to make sodomy a crime. Although the Georgia law applied to all couples, the Court said its decision was about "homosexual sodomy". This meant, according to the FBI, that it couldn't be illegal to discriminate against gay people because gay people are a class "defined" by conduct that could be made a crime.

In the late 1980s, the FBI won a case based on this argument. Bowers v. Hardwick was also offered as a justification for firing a lesbian X-ray technician in Washington State. In another instance, Georgia's Attorney General successfully used the state's sodomy law as a justification for refusing to hire a lesbian.

In 1996, the Supreme Court ruled in Romer v. Evans that states could not discriminate against gay people based on "disapproval". However, this did not stop the continued use of anti-sodomy laws to justify discrimination against gay people in the workplace.

In addition to justifying the firing of gay people or denying them jobs, anti-sodomy laws have also been used to limit the ability of gay people to raise children and to deny equal treatment to LGBT people in public debate.

The existence of anti-sodomy laws, even when unenforced, has had insidious effects on LGBT people, providing a legal basis for state-sanctioned homophobia and negative social attitudes. These laws have contributed to the ongoing discourse of deviance associated with same-sex sexual acts and have been used to justify discrimination against gay people in various aspects of their lives.

They were used to justify not protecting gay people from hate crimes

Anti-sodomy laws have been used to justify not protecting gay people from hate crimes. In Utah, the sodomy law was used to justify not protecting gay people from hate crimes. In the Bowers v. Hardwick case in 1986, the U.S. Supreme Court decided that the U.S. constitution allowed Georgia to make sodomy a crime. The F.B.I. explained that it couldn't be illegal to discriminate against gay people because gay people are a class "defined" by conduct that could be made a crime. This meant that gay people were not protected from hate crimes.

In the 1990s, the HIV/AIDS transmission was more clearly understood, and the changing political climate allowed for the repeal legislation to move forward. In 2003, the U.S. Supreme Court ruled in Lawrence v. Texas that state laws criminalizing private, non-commercial sexual activity between consenting adults at home on the grounds of morality are unconstitutional since there is insufficient justification for intruding into people's liberty and privacy. This decision invalidated all state sodomy laws insofar as they applied to noncommercial conduct in private between consenting civilians.

The existence of these rarely enforced laws on the statute books, however, are often cited as justification for discrimination against gay men, lesbians, and bisexuals. For example, in 2013, the Supreme Court of India upheld the constitutionality of Section 377 of the Indian Penal Code, which criminalizes "carnal intercourse against the order of nature." This decision was overturned in 2018 when the Supreme Court of India struck down the part of Section 377 that criminalized consensual homosexual activities.

They were used to justify banning adoption or foster care by gay people

Anti-sodomy laws have been used to justify banning adoption or foster care by gay people. In the US, these laws were originally designed to prevent non-procreative sexuality anywhere and any sexuality outside of marriage. While they often targeted sexual acts between people of the same sex, many anti-sodomy statutes were broad enough to outlaw certain sexual acts between people of different sexes, including married couples.

In the 1960s and 1970s, anti-sodomy laws began to be used explicitly against gay people as the gay rights movement began to make headway. In nine states, anti-sodomy laws were rewritten so that they only applied to gay people. In two other states, courts decided that anti-sodomy laws could not be applied to private heterosexual conduct, leaving what amounted to same-sex-only laws in effect. In many other states, government agencies and courts treated anti-sodomy laws that, as written, applied to all couples, as if they were aimed at gay people.

These laws were used to justify denying gay parents custody of their children, refusing to let gay people adopt, and refusing to let gay people become foster parents. In Alabama, Arkansas, Mississippi, Missouri, North Carolina, North Dakota, Pennsylvania, South Dakota, and Virginia, anti-sodomy laws were used to justify denying gay parents custody of their children. Florida and Mississippi used anti-sodomy laws to justify refusing to let gay people adopt. Arkansas and Missouri used anti-sodomy laws to justify refusing to let gay people become foster parents.

In 2003, the US Supreme Court reversed its previous decision in Bowers v. Hardwick, ruling in Lawrence v. Texas that anti-sodomy laws were unconstitutional. This decision invalidated all anti-sodomy laws in the remaining 14 states that had them. However, despite this ruling, numerous states have not repealed their anti-sodomy laws, which reflects and contributes to the ongoing discourse of deviance associated with same-sex sexual acts.

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