“And Another Thing!”
Anti-Sodomy Laws Part 2: Felony Boogaloo
As I was writing last week about how the Lawrence v. Texas ruling affected privacy, equal protection, and due process protections for people of all sexes and orientations, I made the same mistake I was describing about Justice Clarence Thomas. I got so bound up on substantive due process that I left off describing some of the horrible, life-destroying ways in which anti-sodomy laws were applied before they were ruled unconstitutional, and how reinstating those laws would undermine decades of anti-discrimination protections.
If Lawrence is overturned, an assortment of private, consensual acts of physical intimacy would again become illegal in the 14 states. My home state of North Carolina is one of them. Giving or receiving anilingus, cunnilingus, or fellatio, the use of insertable sex toys on another person, and anal sex are still technically considered crimes against nature in the Tarheel State. The Lawrence opinion is the only thing that prevents prosecution of these acts as Class I felonies (the same category of crime as fraud, larceny, or running a drug lab out of your dwelling place) punishable by up to two years in prison.
In the early 90s, Teenager Me laughed about these laws, thinking “who on Earth is gonna come barging through my bedroom door to arrest me over a blow job?” I didn’t know then that almost that exact thing would happen to John Lawrence and Tyron Garner, but I sure as hell knew that nobody could find out about that girl I kissed under the bleachers at the Homecoming football game.
In 1995, at the height of the AIDS crisis death toll in the United States, North Carolina adopted House Bill 834, which required sexual health education classes in public schools to teach not only abstinence for the unwed, but also monogamous heterosexual marriage as the “expected standard” of behavior. HB 834 was replaced in 2010 by the Healthy Youth Act, which still contains a legal requirement to emphasize abstinence as the preferred means of avoiding unintended pregnancy and STIs, and still promotes “the value of monogamous, heterosexual marriage as an example of a healthy relationship.”
My monogamous, heterosexual first marriage dissolved in 2000. That’s when I found out the hard way that North Carolina family courts used the state’s anti-sodomy law to deny or restrict child custody and visitation rights, even without tangible proof that any such acts had occurred. The only thing that kept an already knock-down, drag-out custody dispute from being entirely disastrous was that nobody else involved knew I had ever dated women.
I come from a long line of military veterans and am married to one now. Had I chosen to enlist, I could only have done so from the closet. Don’t Ask, Don’t Tell was literally a military grade anti-sodomy ban marketed as a compromise to allow queer people to serve in the armed forces at all. Beginning in 1993, any service member who engaged in or attempted to engage in a “homosexual act,” married a person of their same sex (even if same-sex marriage was legal in their home state), or disclosed a non-heterosexual orientation would face discharge from service and loss of access to certain benefits. The Lawrence ruling nationally decriminalized same-sex relationships in 2003. The U.S. Military did not get that memo until 2011, after discharging more than 13,000 gay, lesbian, and bisexual service members and spending over $200 million to recruit and train their replacements.
Overturning Lawrence could jeopardize laws and policies protecting LGBTQ+ people from discrimination not only in employment, but also housing, public accommodation, healthcare, and education. Sexual orientation is considered a federally protected class, but state laws that criminalize same-sex intimacy would create an end run around identity by focusing on behavior. This would become a secular extension of religious doctrines that treat same-sex relationships and physical intimacy as “intrinsically disordered” and demand celibacy in exchange for conditional tolerance. Too often, queer and trans people are already expected to choose between their faith and their full selves. That choice is terrible enough without extending any further into general society.
Censorship would become an even more pressing issue if Lawrence were overturned. There are already nationwide efforts to ban discussion of sexual orientation and gender identity from classrooms, censor school curricula and library books, and prohibit student-led Gender and Sexuality Alliance clubs due to partisan political, moral, or religious objections to queer content. A Lawrence overturn could mean that public schools and libraries in certain states “Don’t Say Gay” not because they think it’s icky, but to avoid accusations that they condone criminal activity.
Let’s say a person is convicted of violating a state’s anti-sodomy laws. There’s now the not-insignificant matter of having a criminal record. A misdemeanor conviction stays with a person for life unless they can successfully petition the court for an expungement. Any future convictions for other crimes may face enhanced sentencing, as you are now considered a repeat offender. If an employment or lease application asks whether you have been convicted of a crime, your choices are to be honest and hope for sympathy or lie and hope the background check isn’t thorough enough to catch you. Having a misdemeanor on your criminal record may also disqualify you from certain professional positions and elected or appointed offices. It can also negatively affect your immigration status.
If sodomy is a felony in your state, you’re in for a whole different level of hurt. You’ll be barred from even more employment opportunities and will lose certain professional licenses. You will probably have difficulty enrolling at many colleges or universities. Housing options will be much more limited. You may be ineligible to be a foster or adoptive parent, and any custody or visitation arrangements you have with your biologically related children can be impacted. Federal law prohibits felons from owning or possessing a firearm, and your voting rights will be restricted in most states.
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Idaho, South Carolina and Mississippi still require people who were convicted of consensual sodomy pre-Lawrence to register as sex offenders. I’d expect the other eleven states with trigger laws to follow suit in the event of an overturn. I don’t know whether interstate sex offender registration would be required if a person moved from a state where consensual sodomy is banned to a state where it is legal, but I can think of a few State Attorney General candidates who would try to make that part of their election campaigns.
One thing I particularly worry about is how a Lawrence overturn would weaken efforts to abolish LGBTQ+ “panic” defense strategies for assault, manslaughter, and murder charges. Instead of claiming that a victim’s sexual orientation or gender identity is to blame for the violence they suffered, a defendant could simply say they were provoked by being enticed into criminal activity. Although Matthew Shepard’s murder trial is perhaps the most well-known case of invoking a panic defense, this strategy is still commonly used in cases involving the murders of non-white transgender women and queer sex workers. It’s also possible that overturning Lawrence would weaken anti-LGBTQ+ hate crime protections.
I don’t think overturning Lawrence is next on the anti-LGBTQ+ hit list. If we’re talking strictly about landmark SCOTUS cases, I think Obergefell v. Hodges would be a bigger and more likely target. If the goal is to demoralize queer people, why settle for criminalizing a handful of sex acts when you can abolish same-sex marriage rights in 35 states? Sure, you’d be creating grand-scale legal chaos as legislators and lawyers try to figure out what that would do to tax codes, estate planning benefits, child custody and survivorship rights, Social Security and disability benefit eligibility, and the right to medical decision-making or visitation for same-sex partners both in their home states and when traveling. If you’re a Republican in need of a polling boost and an infusion of outrage clicks and donor dollars, all of that is a feature, not a glitch.
I’m saying all of this not to freak anybody out, but to remind folks of what’s at stake. Instead of panicking, it’s time to be vigilant and strategic. Since the concept of legal precedent is more of a vibe than a guarantee these days, we can’t trust that even more due process decisions won’t be targeted. LGBTQ+ equality is inextricably linked to reproductive justice, bodily autonomy, and privacy rights for everyone. We really are all in this together, so we have got to push our representatives as hard as we can to give those rights much more than executive orders and lip service.