Sodomy Laws - History of Sodomy

The Sensibilities of Our Forefathers
The History of Sodomy Laws in the United States

By George Painter
© Copyright, George Painter 1991-2005

Federal Government

The Post-Revolution Period, 1776-1873

No statute of an early Congress mentioned sodomy. Other than acts specifically against the federal government, criminal laws were left to states.

In 1812, the United States Supreme Court, deciding United States v. Hudson and Goodwin, ¹ ruled unanimously that there were no common-law crimes against the federal government. Without a sodomy statute either, that meant the federal government could not prosecute sodomy.

Period Summary: The first federal criminal laws did not mention sodomy. The Supreme Court’s 1812 decision that common-law crimes did not exist against the federal government guaranteed that there would be no federal prosecutions for sodomy.

The Victorian Morality Period, 1873-1948

Congress enacted a statute in 1909 ² called the Assimilative Crimes Act. This law provides that any illegal behavior occurring on federal property within the boundaries of a state can be prosecuted under that state’s criminal code. Covering places such as national parks, military bases, federal prisons, federal office buildings, and maritime vessels, the law permitted prosecution of sodomy on federal property in any of the states, since each had a sodomy law. In addition, oral sex could be prosecuted on federal property in those states that had revised their sodomy law or had it interpreted by a court to include oral sex. The law specifically limited jurisdiction of the federal government to criminal statutes in effect on the date of the law’s enactment, March 4, 1909. Thus, changes in state law after that date remained out of the reach of the federal government.

Although as of this date sodomy was illegal in all states and territories except for American Samoa and Guam (q.v.), oral sex was illegal only in 14 states, either by statute or court interpretation. Also, in states where statutes or court decisions limited the oral sex provisions of the laws to fellatio, that limitation carried to federal land within those jurisdictions as well. Any court interpretation of an existing statute or unusual wording of a state law became the rule in federal courts prosecuting such crimes on federal property in those states.

In 1933, the law was amended ³ to extend jurisdiction to state laws in effect as of June 1, 1933. This added Guam and the Virgin Islands (purchased by the United States since the 1909 law) to the federal government’s reach against sodomy, and expanded the number of jurisdictions where oral sex could be prosecuted to 42.

The law was revised again in 1940 ⁴ to extend its coverage to laws enacted as of February 1, 1940. This extended federal jurisdiction to three states that had outlawed oral sex since the 1933 amendment.

Period Summary: The federal government was given jurisdiction to prosecute sodomy with passage of the Assimilative Crimes Act in 1909. This was limited to acts occurring on federal property within individual states, and that the corresponding state law had to be the one enforced against an offender. The law was not made progressive, so changes to state laws after passage of the federal law would not be covered. Amendments in 1933 and 1940 extended the coverage to laws extent in those years, but still did not include a progressivity provision.

The Kinsey Period, 1948-1986

In 1948, Congress amended the law for the last time. ⁵ This law automatically added three more jurisdictions where oral sex had become illegal during the decade. Congress also included a progressivity provision so it would absorb all state laws as they were enacted. This provision eliminated the need to continue revising the statute from time to time.

Beginning in 1953, sodomy cases were reported under this law on federal property in Indiana (1953), California (1965), Kentucky (1968), Pennsylvania (1973), and Arkansas (1983) (all q.v.). Two cases originated in national parks, one on a military base, one in a federal prison, and another on a docked ship.

Beginning in 1962, a number of states have had court decisions that consensual sexual relations in closed or closed and locked toilet stalls are constitutionally protected, and some decisions have added shrubbery, parked cars, and bath houses to the list of private places where consensual sex is beyond the reach of the prosecutor. The Assimilative Crimes Act requires federal courts to follow these state court decisions.

Beginning in 1974, several states have had their sodomy law ruled unconstitutional by state courts, so federal courts are required to follow those decisions under the Assimilative Crimes Act.

Period Summary: Congress evidently tired of updating the Assimilative Crimes Act every so often and made it progressive in 1948. It was not until after this new law that the first sodomy cases were reported under it.

The Post-Hardwick Period, 1986-Present

During this period, Maryland (1989) and New York (1994) were added to the list of states with same-sex prosecutions under the Assimilative Crimes Act, both for sexual activity in federal parks (both q.v.)

Congress still never has enacted a sodomy law.

Period Summary: The Assimilative Crimes Act has remained unchanged since 1948, and continues to be used to prosecute same-sex sexual activity occurring on federal property within states, but only within the contours of state court decisions.

Footnotes

1 7 Cranch 32, decided Feb. 13, 1812.

² 35 Stat. 1088, at 1145 § 289, ch. 645, enacted Mar. 4, 1909.

³ 48 Stat. 152, ch. 85, enacted June 15, 1933.

⁴ 54 Stat. 234, ch. 241, enacted June 6, 1940.

⁵ 62 Stat. 683, at 686, § 13, ch. 645, enacted June 25, 1948