The Decriminalization of Sodomy in the United States (2023)

introduction

For over 100 years, the criminal codes of many US states have had laws that prohibit sodomy and criminalize this sexual behavior between same-sex and opposite-sex partners. Two challenges to these laws eventually made their way to the Supreme Court [1, 2] and shed light not only on how the Court viewed the purpose and usefulness of the laws, but also on how American social norms have evolved since the laws were first introduced. in the books were included.

A Brief History of Bestiality Laws in the United States

Sodomy Laws in the 19th Century🇧🇷 Although debates over sodomy laws in the latter half of the 20th and early 21st centuries focused almost exclusively on criminalizing homosexual behavior, 19th-century laws generally interpreted sodomy as "a crime against nature committed with human beings or animals". 3]. This affront to nature was generally not defined by criminal codes, so American courts relied on well-established meanings of sodomy in common law, which is the penetration of a "penis into the rectum of an animal, a woman or a girl, or another man, or a boy” [3].

Punishing “homosexual sodomy” was not the driving force behind the implementation of these laws [4], which were designed to serve two purposes. First, bestiality laws attempted to protect "public morals and decency"; Bestiality was listed along with bigamy, adultery, creation and distribution of obscene literature, incest, and public indecency [5]. Second, these laws were used to protect women, “weak men” and children from sexual assault [6]. Court records from the 19th century show that these laws served to prosecute non-consensual activities and that consenting adults who practiced sodomy in their homes were considered immune from prosecution [7].

Sodomy Laws in the 20th Century🇧🇷 The nature and enforcement of sodomy laws changed dramatically over the next century. The inclusion of oral sex in many bestiality statutes – broadening the pool of potential offenders to include, for example, men who engage in sexual activity with other men in public places such as bathrooms – and the creation of police forces in fast-moving urban areas growth of the United States have been fueled by arrests and prison sentences for violations of these laws [8]. In response to public outcry against indecency, sexual grooming in cities across the country, and looting and sexual abuse of minors, city and state governments vigilantly arrested suspected criminals [9, 10]. In the 1950s, McCarthyism led to state and national male "homosexual" witch hunts, in which acts of oral and anal sex between consenting adult men were associated with child abuse [11].

This charge of private sexual activity between consenting adults has drawn criticism from influential legal agencies such as the American Law Institute - an organization of legal scholars, practitioners and judges responsible for drafting the Model Penal Code (MPC) often used by legislatures. state. having been involved in whole or in part in the development of their penal codes - and several state commissions advocating for the decriminalization of consenting private bestiality between adults [12].

In 1955, the American Law Institute voted to decriminalize consensual bestiality, and the MPC subsequently failed to incorporate such laws into its statutory language. In the 1960s and 1970s, the United States Supreme Court held that there is a right to privacy within the Due Process Clause of the Fourteenth Amendment that prevents states from "interfering, interfering with people's control over their own bodies". ] personal relationships and intrusion into the holy of holies of the home, the bedroom” [3]. Based on this right, the court overturned state laws that attempted to prohibit the use of contraceptives and invade marital privacy [13], restrict access to contraception for unmarried people [14] and a woman's right to restrict abortion [15]. While these decisions did not affect existing bestiality laws, the 1960s and 1970s saw significant decriminalization measures: Eighteen states decriminalized consensual bestiality under the MPC [16]. Kansas, Texas, Montana, Kentucky, Missouri, Nevada, and Tennessee have decriminalized consensual opposite-sex bestiality and maintain consensual same-sex bestiality as a misdemeanor [16].

However, other states opposed such proposed reforms, arguing that changes to bestiality laws promoted homosexuality and unnatural behavior [16]. States that adopted the revised MPC faced massive protests from religious groups and right-wing political interests [16]. States such as Idaho reintroduced the previous version of the MPC (which included criminalizing consensual bestiality), and Arkansas, which passed the revised MPC, responded to public outrage by recriminalizing same-sex consensual bestiality with the approval of then-Attorney General Bill Clinton. [16].

Bowers contra Hardwick(1986)

facts about the case🇧🇷 In 1982, a 29-year-old gay man named Michael Hardwick was bartending at a gay bar in Atlanta, Georgia [17]. One night, as Hardwick was leaving the bar, he threw a beer bottle into a rubbish bin outside the bar [17]. When Constable Keith Torick saw this, he cited Hardwick for having been drinking in public, although Hardwick claimed that this was not the case [17]. Officer Torick accidentally wrote the wrong court date on the subpoena, and when Hardwick failed to appear in court, a warrant was issued for his arrest [17]. Torick's first attempt to locate Hardwick at his home was unsuccessful, but on the second attempt, Torick entered Hardwick's unlocked apartment and opened a bedroom door, where he found Hardwick engaging in oral sex with another man [17].

Torick arrested the two men, who were charged with violating Georgia's bestiality law.[17] The statute, Section 16-6-2 of the Georgia Annotated Code, states that “a person commits the offense of bestiality when he performs or engages in any sexual act involving the genitals of one person and the mouth and anus of another person. ” [18]. and "a person convicted of sodomy shall be punished with imprisonment of not less than one and not more than 20 years" [19].

First lawsuits🇧🇷 Michael Hardwick's challenge to Georgia's bestiality law was dismissed by a federal district court without trial, but on appeal before the U.S. Court of Appeals for the 11th Circuit, a divided jury considered the merits of these cases in the 1960s, 1970s and 1970, that the US Supreme Court established and refined a fundamental right to privacy [20]. The Court of Appeals found that Georgia's bestiality statute violated Hardwick's fundamental rights because his homosexual activity was a "private and intimate association which is beyond the reach of state regulation by virtue of the Ninth Amendment and the Due Process Clause of the Tenth Fourth Amendment". 🇧🇷 Disagreeing with the Eleventh Circuit Court's decision because other federal appellate courts have upheld the constitutionality of similar state statutes, Georgia's attorney general asked the Supreme Court to review the case to resolve intercourt differences.

Supreme Court of the United States🇧🇷 The Supreme Court's review decision did not frame the issue before it in terms of a fundamental privacy issue. Writing for the majority, Justice White asked the question "whether the federal constitution gives homosexuals a fundamental right to bestiality, thereby invalidating the laws of many states that still make such behavior illegal and have done so for a long time." [21]. The answer to this question was "no". Although Georgia's sodomy law criminalized both heterosexual and homosexual behavior, the majority of the court focused on the fact that the case before them involved a gay man.

In its analysis, the court cited the precedent that fundamental constitutional freedoms were “implicit in the concept of ordered liberty” so that “neither liberty nor justice would exist if [they] were sacrificed”[22] and that these freedoms could be characterized as "deeply rooted in the history and tradition of the nation" [23]. In this case, however, the court declared that "it is evident to us that none of these formalities would extend a fundamental right of homosexuals to consensual bestiality" [24]. The court based its reasoning on the fact that states had bestiality laws in place since the nation's founding, and therefore the right to homosexual bestiality could not be "rooted" in tradition or history [25].

While Hardwick also challenged the law because his conduct was carried out in the privacy of his home, the court responded that "victimless crimes, such as possession and use of illegal drugs, do not escape the law when committed in the home" [26]. Finally, Hardwick maintained that the law must have a rationale for its existence and that the Georgia Statute contained nothing more than the public belief that homosexuality was immoral and unacceptable. Again, the court disagreed, stating: “The law … is constantly based on notions of morality, and if all laws which constitute essentially moral decisions are to be invalidated under the due process clause, the courts are very busy indeed.” [27] .

The court therefore upheld Georgia's sodomy law and declared it constitutional. That conclusion, which surprised many in the legal and civil rights community, was not reexamined by the US Supreme Court for 17 years.

Lawrence contra o Texas(2003)

facts about the case🇧🇷 On September 17, 1998, John Lawrence spent the day with Tyrone Garner and Robert Eubanks, who were in a tumultuous relationship [28]. After a drunken argument broke out over whether Eubanks, Garner, or both could stay at the Lawrence house, Eubanks stormed out of the apartment [28]. Later that night, the Harris County Sheriff's Office received a call that a black man in Lawrence's apartment was "freaking out with a gun" [28]. Minutes later, four sheriffs entered the unlocked apartment and spoke, but neither saw nor heard anything [28]. It was only when officers entered a back room that they found Lawrence and Garner allegedly involved in a sexual act [28].

Lawrence and Garner were arrested and charged with violating the Texas bestiality law. The Texas statute in question, Section 21.06(a) of the Texas Penal Code, states that "a person commits an offense if he or she engages in deviant sexual intercourse with another person of the same sex", where "deviant sexual intercourse" is defined as "any contact" between any part of a person's genitals and another person's mouth or anus” or “the penetration of an object into another person's genitals or anus” [29].

First lawsuits. To defeat the Federal Supreme CourtBowers contra Hardwickdealt a devastating blow to the gay community in the United States. To prevent the court from viewing the transgressions as purely sexual and to view the legal issue in a different light, Lawrence and Garner's tenure focused on intimacy, privacy and relationships [28]. At trial before a magistrate after their arrest, Lawrence and Garner pleaded no contest to the charge - meaning they admitted the facts of the charge but not their guilt - so that they could challenge the law's legality. Lawyers for Lawrence and Garner have since persistently appealed the decisions, taking the case to the Texas Criminal Court, the Texas Fourteenth Court of Appeals, the Texas Criminal Court of Appeals, and finally the United States Supreme Court. it polices citizens' homes, invading “their most intimate and private physical behaviors and dictating with whom they can share a profound part of adult life” [30].

Supreme Court of the United States🇧🇷 Justice Kennedy, writing for the majority, framed the question before the court as one of "whether the petitioners were free, as adults, to engage in private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution. "[31]. After reviewing the court's understanding of the foundation of the fundamental right to privacy, Justice Kennedy turned his attention to how the statues of sodomy appear in both cases.Mandrisand the present case aimed at "controlling a personal relationship which, with the right to formal recognition in law or not, is the freedom of persons without being punished as criminal" [32]. The court characterized laws targeting same-sex couples as motivated by anti-homosexual animus that arose from religious and moral condemnation. Despite the importance of these beliefs to some, Kennedy argued, they should not be applied to society at large [33]. He wrote, "Mandrisit wasn't right when it was decided, and it's not right today. It must not remain a binding precedent.Bowers contra Hardwickshould and is now superseded” [34].

Eventually, the court majority struck down the Texas sodomy law, and ultimately all of these laws:

Petitioners have the right to respect for their privacy. The state cannot demean your existence or control your identity by making your private sexual behavior a crime. Their right to liberty under the Due Process Clause gives them full rights to participate in their behavior without government interference.[34]

Conclusion

The rise and fall of bestiality laws in the United States illustrate the ways in which the law has been used to legitimize a society's sexual norms or to represent the idealized norms it seeks to promote. But these laws, like many legal instruments, became primarily tools of oppression used by the majority against members of minorities, and the sexual norms they enacted bore less and less resemblance to prevailing beliefs in American society. The decline of these laws by the legal challenges ofBowers contra HardwickeLawrence contra o Texasnot only did it bring the legislation more in line with contemporary sexual norms, it also showed how far acceptance of gay citizens had come.