When the Indian Supreme Court this week reinstated a law banning gay sex, everyone in my liberal social circle began circulating outrage. I shared in this -- and yet, I couldn't help but wonder at the remnants here in the U.S. of attempts of doing just that.
In fact, we still have laws against sodomy in several states -- Alabama, Florida, Idaho, Louisiana, Michigan, Mississippi, North Carolina, Oklahoma, South Carolina and Utah. Currently. In the year 2013. [I pause to let you pick your jaw up off the floor.] Two states -- Kansas and Texas -- explicitly outlaw homosexual contact. (And did I mention that the military still bans sodomy?) That's right: the United States of America still has laws on the books criminalizing gay sex -- in addition to codes forbidding oral and anal sex for heterosexuals.
How the hell did we get here? It all started -- as do many unfortunate stories -- with religion. As the American Civil Liberties Union puts it, "Originally, sodomy laws were part of a larger body of law -- derived from church law -- designed to prevent nonprocreative sexuality anywhere, and any sexuality outside of marriage."
Until the mid twentieth century, sodomy arrests were largely made in non-consensual cases. As Margot Canaday wrote in The Nation, "McCarthyist anxieties about homosexuality, sex-crime panics and the advent of the vice squad led to a midcentury boom in sodomy arrests, as many as 80 percent of which may have involved homosexual offenses," she wrote. "As further reflection of midcentury homophobia, consensual homosexual sodomy emerged for the first time as a major regulatory concern." A sodomy conviction could land you behind bars for as little as five years and for as long as the rest of your life.
In part because of dawning awareness about what Americans were actually getting up to in the privacy of their bedrooms -- thanks, Alfred Kinsey -- sodomy was cut from the American Law Institute's Model Penal Code in 1962. "Nearly simultaneously, as part of its updating of its criminal code, the State of Illinois became the first to decriminalize consensual sodomy," explains Canaday. Several states followed suit -- but reform got more complicated as sodomy "became even more closely associated with homosexuality in the decade after the Stonewall riots," she wrote. "Simultaneously, the connection to homosexuality 'became a reason, as well as an obstacle, for sodomy law reform.'"
And here we are today, with two states still explicitly outlawing gay sex (and several more banning sodomy regardless of sexual orientation). The Kansas law criminalizes sodomy between “members of the same sex or between a person and an animal." (Because in some conservatives' eyes, gay sex and bestiality are the same. No exaggeration -- remember Rick Santorum comparing homosexuality to sex with dogs?) The Texas statute defines it as an offense for a person to engage in "deviate sexual intercourse" -- defined as anal or oral -- "with another individual of the same sex."
Now, the 2003 Supreme Court ruling in Lawrence v. Texas rendered such prohibitions unconstitutional -- but they are still used to justify discrimination, and conservatives have fought to keep them around for a reason. As Tim Murphy wrote in Mother Jones, “Conservatives in those states know they can't enforce the laws, but by keeping them in the code, they can send a message that homosexuality is officially condemned by the government.”
This isn’t an issue of states not getting around to paperwork. Attempts at legislative appeal have been actively resisted -- even as major efforts have been made to strike other outdated laws from the books. In 2003, Santorum responded to the Supreme Court's decision in Lawrence v. Texas by saying, "[I]f the Supreme Court says that you have the right to consensual sex within your home, then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the right to adultery. You have the right to anything. Does that undermine the fabric of our society? I would argue yes, it does."
As recently as 2012, American Family Association spokesperson Bryan Fischer wrote in an op-ed, "We have been saying for years that homosexual behavior ought to be contrary to public policy because it is a menace to public health." That same year, the Texas GOP's party platform took an outright stance against "the practice of homosexuality."
With the rise of same-sex marriage, homophobes have clung tighter yet to the remaining anti-gay sodomy laws. Only this year did Montana manage to get rid of its law criminalizing “sexual contact or sexual intercourse between two persons of the same sex,” even though it was deemed unconstitutional by a State Supreme Court 16 years ago. (Just two years earlier, a bill attempting to erase the code was killed by the House Judiciary Committee.) This year also saw Virginia overturn its sodomy law.
Of course, there are plenty of reasons to criticize in the Indian Supreme Court decision -- but let's not act like our hands are clean.