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23 T. Marshall L. Rev. 283 (1997-1998)
The Stages of Sodomy Reform

handle is hein.journals/thurlr23 and id is 289 raw text is: ARTICLES THE STAGES OF SODOMY REFORM ELLEN ANN ANDERSEN* The legal status of sodomy laws has changed enormously in the past 30 years. In 1968, every state in the nation except Illinois had a sodomy law on the books.' In 1998, as this article goes to press, the number of free states has risen from 1 to 31 2 In three additional states- Massachu- setts,3 Michigan,4 and Texas--the legal status of sodomy statutes is somewhat ambiguous. By the time this volume is published, the sodomy scoreboard may well have changed. The constitutionality of sodomy laws * Assistant Professor of Political Science, Texas Tech University. Ph.D., University of Michigan, 1998 (expected); MA., University of Michigan, 1994; A.B., Cornell University, 1988. I wish to express my thanks to the staff of the Lambda Legal Defense and Education Fund for giving me access to their case records, allowing me to set up camp in the New York office, and generally providing insight and thoughtful commentary. I also wish to thank Abby Rubenfeld, Kathy Wilde, Paula Ettelbrick, Ken Sherrill, Eugene Harrington, Kim Lane Scheppele, Kent Jennings, Mayer Zald, Mark Brandon, Paula Denney, Scott Barclay, and Doug Reed for their assistance. - 1. Illinois repealed its sodomy statute in 1961. 1961 Ill. Laws 1983, § 11-2 (eff. Jan. 1, 1962). 2. See infra notes 65-67, notes 143-48, and accompanying text. 3. Massachusetts' sodomy law, MASS. GEm. L. 272, § 34 (1986), was arguably invalidated in 1974, when the Supreme Judicial Court of Massachusetts struck down a companion statute criminalizing unnatural and lascivious acts, ruling that it could not constitutionally be applied to private, consensual conduct by adults. Commonwealth v. Balthazar, 318 N.E.2d 478, 481 (Mass. 1974). 4. In 1990, a Wayne County court struck down Michigan's sodomy law in a case called Michigan Organization for Human Rights v. Kelley, No. 88-815820 CZ (Mich. Cir. Ct. July 9, 1990). (The trial court decision has not been published in a reporter and is not available electronically.) State Attorney General was named, in his official capacity, as the defendant. It was widely expected that he would appeal the trial court ruling, but he did not. As it stands, Michigan's sodomy law may not be enforced in Wayne County, but may be enforced in other parts of the state. 5. The status of Texas' sodomy law is a matter of some debate. In 1992, a Texas Court of Appeals struck down the state's sodomy statute as an infringement on the state constitutional right to privacy. Texas v. Morales, 826 S.W.2d 201, 204-205 (Tex. Ct. App. 1992). On appeal, the Texas Supreme Court reversed the lower court's ruling, on the ground that it lacked jurisdiction under the state's bifurcated system of civil and criminal jurisdiction to declare a criminal statute unconstitutional in a civil case, unless the enforcement of the statute occasioned an irreparable injury to property rights. 926 S.W.2d 941,942, 944 (Tex. 1994). (In the case at hand, all parties conceded that the sodomy statute was not enforced. The plaintiffs argued that the collateral harms caused by the sodomy law violated their rights to privacy and equal protection. See Morales, 826 S.W.2d at 202.) In 1993, however, the Texas Court of Appeals struck down the state's sodomy law in an applied challenge to its constitutionality. Dallas v. England, 846 S.W.2d 957 (Tex. App. 1993), writ dismissed w.o.j. (May 5, 1993), reh'g ofwrit of error overruled (June 9, 1993). In that case, the sodomy statute had been used as a basis for refusing employment as a police officer to an otherwise-qualified lesbian applicant.

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