In 13 States, Gay Relationships are Still Technically a Crime

Montana lawmakers this week passed a repeal of the state’s sodomy laws. Why, when those laws are unenforceable, is this still a necessary and worthwhile use of lawmakers’ time?

Gay Montana Lawmaker: This Law Makes Me A Criminal

Montana, like several other states, still has a law that makes consensual gay sex a crime but, it seems, not for very much longer. This week, the Montana state House voted overwhelmingly to repeal the state’s sodomy law.

During a debate earlier this week, Representative Bryce Bennett (D-Missoula) gave an impassioned speech on how the current law makes him a criminal, and why repeal legislation (SB 107) is necessary.

“Under this law,” Bennett told the House, “I could be imprisoned for up to ten years for being part of a loving, caring relationship. [...] The fact that years later this language is still on the books means that our state still sees me as a criminal. The belief that I am a second-class citizen in a state I was born in and called home my entire life.”

Watch the speech below:

A number of Republicans voted with Democratic legislators to advance the repeal 65-34.

Rep. Duane Ankney (R-Colstrip) asked the Legislature to remove the language because it infringes upon personal rights, saying the law is an “embarrassment,” and that it “should go away … as quietly as it came.”

Still, a majority of Republicans opposed the repeal, with a number of legislators citing supposed concerns that a repeal of the sodomy statute was like promoting homosexuality, and that this could be used to somehow introduce gay indoctrination in schools.

The legislation now heads to Governor Bullock’s desk.

In the above video, Rep. Bennett makes the point that Montana’s sodomy statute is not being invoked by the police, yet he still feels marginalized because the law remains on the books — this despite the Supreme Court in 2003 ruling in Lawrence v. Texas that such bans are unconstitutional.

There is also evidence that bans like this continue to be the darling of anti-LGBT lawmakers and officials.

Which U.S. States Still Have Sodomy Laws?

If we discount Montana, 13 states still have some form of sodomy statutes.

Three states specifically outlaw gay sex: Oklahoma, Texas and Kansas. Montana’s former ban also specifically targeted homosexual couples.

Ten other states outlaw anal and oral sex, so while such bans could apply to heterosexuals, the statutes were historically used to aggressively criminalize homosexuality.

These states include Alabama, Florida, Idaho, Louisiana, Michigan, Mississippi, North Carolina, South Carolina, Utah and Virginia.

Are Sodomy Laws Really Still Invoked Today?

As fellow Care2 blogger Judy Molland recently noted, Virginia’s anti-gay attorney general Ken Cuccinelli has petitioned the 4th Circuit Court of Appeals to review the court’s own opinion that the state’s so-called “Crimes Against Nature” ban, which makes anal and oral sex a felony, is unconstitutional.

Cuccinelli has issued a slew of opinions against anti-LGBT ordinances and LGBT-rights protections, so while the above case does not specifically deal with LGBT rights, its wider implications are a concern.

Fortunately, the court has rejected the en banc appeal. At the time of writing it is not known whether Cuccinelli will appeal to the Supreme Court on this issue.

This is by no means an isolated incident, either.

The Texas Republican Party in 2010 published its party platform with the following language:

“We demand that Congress exercise its authority granted by the U.S. Constitution to withhold jurisdiction from the federal courts from cases involving sodomy.”

While the party has recently backed off from such explicit calls, it still resists repealing the sodomy statute.

Now this may all seem like bluster but, while cases like this are decreasing, sodomy laws are still invoked to deny LGBT people their rights and to stifle companies and business owners who are LGBT-affirming.

For instance, such bans have been used to prevent same-sex couples from adopting or gaining access to their own children after a marriage breakdown. They’ve also been used to deny people employment. Among the most infamous of cases is Georgia’s then-Attorney General Michael J. Bower, who rescinded a job offer to a lawyer because she was marrying a woman, and then successfully invoked the state’s sodomy law as a justification.

There is evidence dating from as late as 2009 that authorities in states like Michigan and Texas may also still be citing the so-called “legislative intent” behind the sodomy bans in order to prosecute, without legal challenge, consensual sex between men.

More than this, though, sodomy bans have one specific and chilling function quite apart from any explicit hounding: such laws send a very clear message to LGBT people that they are politically powerless and still a group to be marginalized and discriminated against.

So yes, the states should have better things to do than repealing these statutes. Nevertheless, repealing the intrusive and discriminatory bans remains an important step and a crucial safe-guard to eliminating opportunistic bigotry and affirming LGBT equality.


Related Reading:

Virginia Lawmaker: “Sodomy is Not a Civil Right”

Sodomy Law Retained in Kansas

Texas GOP: Recriminalize Sodomy and Make it a Felony to Marry Same-Sex Couples

Image credit: Thinkstock.


Kevin Brown
Kevin Brown2 years ago

Excellent Blog! I have been impressed by your thoughts and the way you face value of whole life insurance

Past Member
Past Member 3 years ago

Your blogs and every other content are thus interesting and helpful it makes me return back again. dui Colorado Springs

Dale O.

Agreed, Liessi f. There has been no problems here as a result of laws that are not prejudiced when it comes to gays. Gay marriages are legal in Canada, they get the same benefits as married couples.

The Moderator of the United Church is gay, this is the largest Protestant church in the nation, he is a minister for the past 35 years and is married to another gay minister who is now a Vancouver City Councillor. Life in Canada continues on, no giant earthquakes or bizarre disasters of 'retribuition' from above. Life carries on as it should.

Karen Bennick
Karen Bennick5 years ago

When will they learn that the Constitution, not the Bible is the law in the USA

Annmari Lundin
Annmari Lundin5 years ago

It's a disgrace, that still ten years after Lawrence vs.Texas, certain states still maintain a sodomy law. What's next? Bedroom police smashing your door in to see you're only in missionary position? Hidden cameras? If this weren't such a serious matter I would laugh straight in the face of these neanderthal politicians!

Lynne B.
Lynne Buckley5 years ago

These laws need throwing in the trash.

Lynda Duke
Lynda Duke5 years ago

Yep, its time to say no to the CHRISTIANISTAS as they bully their way into your bedroom!

Annelies Haussler
liessi Haussler5 years ago

Hello, straight people !!! This law infringes on your sexual rights as well. It's time to just say "No!" to the American Taliban.

"There's no place for the state in the bedrooms of the nation." Those unforgettable words made famous by Canadian prime minister Pierre Trudeau in 1967 caused a tidal wave of controversy that rippled across the entire nation. Trudeau's omnibus bill brought issues like abortion, homosexuality and divorce law to the forefront for the first time, changing the political and social landscape in Canada forever.

Fast-forward 45 years and I can assure you, we have not devolved into a culture of public bestiality or whatever else such prudishness might fear.

Edgar Zuim
Edgar Zuim5 years ago

Gays, lesbians, etc.. are citizens like any other. To hell these stupid laws.

Berty Jardine
Berty Jardine5 years ago

We are so backward it's not even funny. Sigh, Love is love!