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Sodomy Laws and Sodomy Law Reform  
 
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The Harassment of Sexual Minorities

These sodomy laws provided the legal basis for police harassment of sexual minorities (lesbians, gay men, bisexuals, people). Although the sodomy laws proscribed conduct that all persons might engage in, regardless of sexual orientation or gender, by the early twentieth century, they were identified by law enforcement authorities and the general public with the issue of homosexuality.

Even though particular persons with a homosexual orientation might never engage in any of the specific conduct that the laws proscribed, nonetheless the newly-emerged "homosexual identity" was bound up in the minds of authorities and the public with the prohibited acts. These laws were cited in support of various kinds of discrimination, some of which still persists today even in jurisdictions where consensual sodomy has long been decriminalized.

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The Movement toward Reform

Winds of change began to stir in the 1950s, abetted by the publication of the Kinsey Reports after World War II. These books, one each about male and female sexuality, caused a sensation by suggesting that homosexual conduct was widespread. The psychiatric profession's view that same-sex conduct was a result of arrested psychological development and mental illness, which had emerged early in the twentieth century and gained general acceptance within the profession by mid-century, began to influence lawmakers, some of whom questioned whether a medical problem should be dealt with through the criminal law.

Both in England and the United States, prominent bodies recommended removing criminal penalties. In England, a special parliamentary committee chaired by Lord Wolfenden urged decriminalization of consensual sodomy between adults acting in private. In the United States, the American Law Institute (ALI), a prominent law reform body that was drafting a proposed Model Penal Code to be considered for adoption by state legislatures, proposed in 1955 that the ban should be limited to public or non-consensual acts.

The ALI also proposed making sex crime statutes more explicit, in line with a general movement towards making statutory law comprehensible to the lay person. Thus was born the crime of "deviate sexual intercourse," which was clinically described as conduct involving the mouth or anus of one person and the penis of another, or the mouth of one person and the vulva of another.

The British Parliament accepted the Wolfenden Committee recommendations in 1967. In the United States, Illinois was the first state to adopt the Model Penal Code's sex-crimes provisions as proposed, effective beginning in 1962. Some other states, such as New York, revised the sex-crimes provisions before adopting them, and retained criminal penalties for consensual, private acts of sodomy, although the category of crime was reduced from a felony with a long prison sentence to a misdemeanor with a short sentence or a fine, and anal or oral sex between persons married to each other was decriminalized.

At the same time, the medical profession was revising its views about sodomy. Responding to the research findings of pioneers such as Dr. Evelyn Hooker, who had presented research evidence refuting the view that homosexual persons were "mentally ill," and to persistent lobbying by the newly-emerging political movement for lesbian and gay rights that gathered momentum after the 1969 Stonewall riots in New York, the American Psychiatric Association voted to remove homosexuality from its official list of mental illnesses in 1973. By the mid-1970s, the psychiatrists had been joined by the American Psychological Association, the American Medical Association, and the American Bar Association in calling for the repeal of laws against consensual sodomy.

By the mid-1970s, almost half of the states had legislatively or judicially decriminalized consensual sodomy, but the legislative reform movement seemed to be stuck at that point.

Constitutional Challenges

Meanwhile, developments in constitutional doctrine at the level of the United States Supreme Court had led some legal scholars to suggest that sodomy laws might be vulnerable to constitutional challenge, at least regarding their application to consensual, private adult conduct. The most important cases were Griswold v. Connecticut, 381 U.S. 479 (1965), and Loving v. Virginia, 388 U.S. 1 (1967).

In Griswold, the Court found that a Connecticut statute banning the use of contraceptives to prevent pregnancy violated a constitutional right of privacy, grounded in the Due Process Clause of the 14th Amendment, which provides that no state shall deprive any person of life, liberty, or property without Due Process of Law. Under a mode of analysis called "substantive due process" that the Court developed during the latter part of the nineteenth century primarily as a mechanism to strike down statutory restrictions on commercial activity, the Court would treat as constitutionally "suspect" any state law that restricted a person's enjoyment of "fundamental liberties" unless the state could show that such a restriction was necessary to the achievement of a compelling interest.

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