Sodomy and capitalist legal repression in the USA — Brief history of recent battles

[This entry was initially posted to the original Red Keyhole blog on 17 April 2011.]

As this blog has noted, oral and anal sex – disapprovingly branded as “sodomy” by capitalism’s legal establishment – are becoming increasingly popular elements of sexual play through the USA (and the world, for that matter). Older adults are doing it, younger adults are doing it … even some kids in elementary school are doing it.

But in the extreme right’s Battle of the Bedroom, the war over sodomy rages on (with the latest front in Texas, where the Tea Party-dominated legislature is refusing to expunge anti-sodomy laws from the books, despite juridical decisions that have invalidated them). Let’s not forget that it’s only been since June 2003 – when the US Supreme Court ruled private “sodomy” legal – that American couples, heterosexual as well as homosexual (and everything in between), have been comparatively free to engage in these more “exotic” sexual activities … which also seem to be enjoyed by more and more women, as this blog has also been recounting.


Sodomy can involve oral or anal sex – or both – and can be extremely pleasurable to the sex partner who’s being consensually “sodomized”.

The following narrative, excerpted and slightly edited from an entry in the Free Dictionary, provides a useful brief overview of this issue and recent legal developments in the USA. Of particular interest is the connection between the repression of homosexual relations and the repression of heterosexual “sodomy” with far more sweeping application. Revolutionary Marxists regard these issues as intertwined: thus, the struggle for women’s liberation is integrally involved in the struggle for gay rights, and for sexual freedom generally.

Sodomy

Anal or oral intercourse between human beings, or any sexual relations between a human being and an animal, the act of which may be punishable as a criminal offense.

The word sodomy acquired different meanings over time. Under the Common Law, sodomy consisted of anal intercourse. Traditionally courts and statutes referred to it as a “crime against nature” or as copulation “against the order of nature.” In the United States, the term eventually encompassed oral sex as well as anal sex. The crime of sodomy was classified as a felony.

Because homosexual activity involves anal and oral sex, gay men were the primary target of sodomy laws. Culturally and historically, homosexual activity was seen as unnatural or perverse. The term sodomy refers to the homosexual activities of men in the story of the city of Sodom in the Bible. The destruction of Sodom and Gomorrah because of their residents’ immorality became a central part of Western attitudes toward forms of non-procreative sexual activity and same-sex relations.

Beginning with Illinois in 1961, state legislatures reexamined their sodomy statutes. Twenty-seven states repealed these laws, usually as a part of a general revision of the criminal code and with the recognition that heterosexuals engage in oral and anal sex. In addition, state courts in 10 states applied state constitutional provisions to invalidate sodomy laws. As of early 2003, eight states had laws that barred heterosexual and homosexual sodomy. Three other states barred sodomy between homosexuals.

In Bowers v. Hardwick, 478 U.S. 186, 106 S. Ct. 2841, 92 L. Ed. 2d 140 (1986), the U.S. Supreme Court upheld the Georgia sodomy statute. Michael Hardwick was arrested and charged with sodomy for engaging in oral sex with a consenting male adult in his home. A police officer was let into Hardwick’s home to serve a warrant and saw the sexual act. Although the state prosecutor declined to prosecute the case, Hardwick brought suit in federal court asking that the statute be declared unconstitutional.

On a 5–4 vote, the Court upheld the law. Writing for the majority, Justice Byron R. White rejected the argument that previous decisions such as the Court’s rulings on Abortion and contraception had created a right of privacy that extended to homosexual sodomy. Instead, the Court drew a sharp distinction between the previous cases, which involved “family, marriage, or procreation,” and homosexual activity.

The Court also rejected the argument that there is a fundamental right to engage in homosexual activity. Prohibitions against sodomy were in the laws of most states since the nation’s founding. To the argument that homosexual activity should be protected when it occurs in the privacy of a home, White stated that “otherwise illegal conduct is not always immunized whenever it occurs in the home.” Because the claim in the case involved only homosexual sodomy, the Court expressed no opinion about the constitutionality of the statute as applied to acts of heterosexual sodomy.

The Bowers decision was severely criticized. Justice Lewis Powell, who voted with the majority, later stated that he had made a mistake in voting to affirm the law. In July 2003 the Supreme Court reversed itself on the issue of sodomy. In Lawrence v. Texas, 539 U.S. ___, 123 S. Ct. 2472, 156 L. Ed. 2d 508, in a 6–3 decision, the Court invalidated a Texas anti-homosexual sodomy law by invoking the constitutional rights to privacy.

Further readings

Arnault, E. Lauren. 2003. “Status, Conduct, and Forced Disclosure: What Does Bowers v. Hardwick Really Say?” U.C. Davis Law Review 36 (February).

Barnett, Walter. 1973. Sexual Freedom and the Constitution: An Inquiry into the Constitutionality of Repressive Sex Laws. Albuquerque: Univ. of New Mexico Press.

Franklin, Kris. 2001. “The Rhetoric of Legal Authority Constructing Authoritativeness, the ‘Ellen Effect,’ and the Example of Sodomy Law.” Rutgers Law Journal 33 (fall).

Hickey, Adam. 2002. “Between Two Spheres: Comparing State and Federal Approaches to the Right to Privacy and Prohibitions Against Sodomy.” Yale Law Journal 111 (January).

Magnuson, Roger J. 1990. Are Gay Rights Right?: Making Sense of the Controversy. Updated ed. Portland, Ore: Multnomah.

Savage, David G. 2003. “In Rulings, Echoes of 1992: The High Court Stuns Conservatives—Just as It Did More Than a Decade Ago.” ABA Journal 89 (August).

“Sodomy Laws.” Available online at (accessed August 26, 2003).

Steegmann, Edward P. 1988. “Of History and Due Process.” Indiana Law Journal 63 (spring).