Gay Sex and the Law

Ok.  I know I’m naïve.*  I know I just started coming out six months ago, which, as I am want to say, might as well be 10 minutes ago.  So, I have to say that I was surprised when I recently read an article on a blog I follow about the status of sodomy laws in this great country of ours. (For those who don't know, sodomy does NOT just mean anal sex.  Read on.)   More to the point, I was surprised to learn that Utah still has a sodomy law on its books.

The blog linked to this story from Mother Jones, which featured the following map that color-coded each state as to the status of its sodomy laws.  

Now, before I go any further, I should perhaps illuminate just what is meant by “sodomy.”  Some might be under the impression that it connotes only anal sex.  Not so.  According to Utah’s Criminal Code, “a person commits sodomy when the actor engages in any sexual act with a person who is 14 years of age or older involving the genitals of one person and mouth or anus of another person, regardless of the sex of either participant” [Utah Code 76-5-403(1)].  And in case you’re wondering, under Utah law, the penalty for a Class B misdemeanor is up to six months in jail and/or a fine of up to $1000.

You may have noticed a few things about Utah’s definition of sodomy.  Like, for example, that it would include oral sex, whether performed on a man or a woman, by a man or a woman, as well as (oral or genital) anal sex.  Or that it does not contain any differentiations between heterosexual and homosexual partners.  Or that there is no “exemption” if the couple just happens to be married.  So, I wonder how many temple-recommend-holding men and women in Utah have committed a Class B misdemeanor in the past few months because they have engaged in oral sex (and how does this fit in with “obeying, honoring, and sustaining the law”)?  Just asking.

Having said that, you’ll note several things about the map.  You will notice that there are a lot of red states, many of which are actually “Blue” states.  In fact, there are 36 states in this great Union where sodomy is not illegal.  Then, there are four states that do have laws against sodomy, but only for gay people.  (In other words, the legislators have remembered to carve out an exemption for married couples to legally engage in oral or anal sex.) 

Then, there are the ten remaining states where sodomy is illegal, with no exceptions.  You might notice that, with the glaring exception of Michigan (what’s with that?), all of these states are either in the Bible Belt or the Mormon Belt.

Now, what’s interesting is that the United States Supreme Court, in its 2003 ruling in the case of Lawrence v Texas, struck down the sodomy law in Texas as unconstitutional, the majority of the court holding that intimate consensual sexual conduct was part of the liberty protected by substantive due process under the Fourteenth Amendment to the U.S. Constitution. Lawrence has the effect of invalidating similar laws throughout the United States that purport to criminalize sodomy between consenting same-sex adults acting in private. It also invalidated the application of sodomy laws to heterosexual sex.

So, why is Utah’s law still on the books?  Well, there are no doubt some (perhaps some who read this blog) who could provide the scoop on the situation in Utah, but the Mother Jones piece pretty much sums it up: 

“Conservatives … know they can’t enforce the [sodomy] laws, but by keeping them in the code, they can send a message that homosexuality is officially condemned by the government.”

“Texas' state legislature has thus far refused to remove the law from the books—in large part because most Texas Republicans still support it. In 2010, the state GOP made defense of the anti-sodomy statute part of its platform, calling for the state to effectively ignore the law of the land: ‘We demand that Congress exercise its authority granted by the U.S. Constitution to withhold jurisdiction from the federal courts from cases involving sodomy.’

“But Texas isn't the only state that's still legislating bedroom activity. Fourteen states currently have laws on the books outlawing anal sex between two consenting, unrelated adults—referred to variously as "deviate sexual conduct," "the infamous crime against nature," "sodomy," and "buggery." And it's taken a concerted effort to keep those laws on the books. Since Lawrence, efforts to formally repeal laws in Montana, Kansas, Utah, Louisiana, North Carolina, and, most notably, Texas have all faced resistance before fizzling out in their respective state legislatures.”

Gee, imagine something like that happening in the Utah Legislature?  Ya think?

* This post was originally published yesterday. It was suggested that I republish it under another title.