National
Sodomy laws remain on books in 17 states, including Md. and Va.
Trans women, gay men prosecuted under ‘loophole’ in Supreme Court ruling
Some gay rights attorneys, including Paul Smith, who successfully argued the Lawrence case before the Supreme Court, have expressed concern that prosecutors and lower court judges are misinterpreting language in the Lawrence decision. (Washington Blade photo by Michael Key)
Laws that make it a crime for consenting adults to engage in sodomy remain on the books in 17 states and continue to be enforced in several of those states 10 years after the U.S. Supreme Court declared such laws unconstitutional.
Last week, the Montana Legislature gave final approval of a bill to repeal that state’s sodomy law. (A spokesperson for the state’s Democratic governor, Steve Bullock, said Bullock was scheduled to sign the bill on Thursday, which would lower the number of states with sodomy laws from 18 to 17.)
According to LGBT activists and gay rights attorneys, most of the cases in which police and prosecutors enforce sodomy or “crime against nature” statutes involve marginalized groups such as transgender sex workers or gay men arrested by undercover police officers for engaging in or soliciting sex in parks or other public places.
But the author of a comprehensive report on the continued enforcement of state sodomy laws released in 2011 by the national LGBT advocacy group Equality Matters said many of the cases involve arrests of men who merely seek to invite another willing male partner to their home for a sexual encounter where prostitution is not involved.
Equality Matters researcher Carlos Maza, author of the report “State Sodomy Laws Continue to Target LGBT Americans,” told the Blade that although sodomy laws apply to straights as well as LGBT people in all but four of the states that have them, LGBT people are targeted far more often than straights.
“LGBT people in Michigan continue to be charged with crimes for public speech, in which they let another person know they are interested in private, unpaid sex with another adult,” the report quotes Michigan gay rights attorney Rudy Serra as saying in the Michigan publication Pride Source.
“Bag-A-Fag (undercover decoy cop) operations, where police officers pretend to be gay men cruising for unpaid, consensual sex continue in Michigan,” the report quotes Serra as saying. “LGBT people are still at risk of spending 15 years in state prison for acts that are perfectly legal in most other states.”
Serra told the Blade in an interview that someone convicted under Michigan’s sodomy law, called the Abominable and Detestable Crime Against Nature statute, and a separate “Gross Indecency” law, also must register with the state as sex offenders.
He said despite the fact that the Lawrence v. Texas decision renders these laws unconstitutional, the Michigan State Bar, which every lawyer is required to join, has retained written instructions about how juries should deliberate over cases in which a person is charged and brought to trial under the sodomy and Gross Indecency laws.
Gary Buseck, legal director of the New England-based litigation group Gay & Lesbian Advocates & Defenders, said he is not aware of any cases in which the Massachusetts sodomy law has been enforced against people for private, consensual, non-commercial sex since the 2003 Lawrence decision.
But he said the Massachusetts law continues to be used, although rarely, by police against gays in cases of “public” sex.
“We have always understood that in straight ‘lovers’ lanes,’ the police traditionally just shoo couples away and that’s that,” he told the Blade. “With gay men there has traditionally been the ebb and flow of sting efforts or entrapment efforts or enhanced enforcement efforts at what become identified as gay cruising areas.”
Buseck added, “Occasionally, men will still be charged with a felony sodomy [in Massachusetts]. But we have not been aware in recent years of any district attorneys who will go forward with such a case.”
In at least one case in North Carolina in 2008, police arrested two gay men under that state’s sodomy statute for allegedly engaging in consenting sex in the privacy of one of their homes. The case outraged gay activists in the state, who noted it was similar to the Lawrence v. Texas case in which the Supreme Court supposedly overturned state sodomy laws.
A prosecutor eventually dropped the charges against the men after determining that the arrest by officers of the Raleigh Police Department violated the Lawrence v. Texas ruling.
The Raleigh News and Observer and other news media outlets reported that police got involved in the case after the men became involved in an incident of domestic violence and one of them called police.
In the course of a police investigation, one of the men said the other sexually assaulted him, according to media accounts. But a police official told media outlets the incident appeared to be “a case of a consensual act that may have gotten out of hand.” Instead of charging one of the men with sexual assault, police charged both men with violating the sodomy statute.
The News and Observer reported at the time that the man who claimed he was sexually assaulted said he was grateful that the sodomy charge was dropped but said he had been humiliated over being accused of a crime listed as a Class 1 felony — sodomy — punishable by up to two years in prison.
“The reality is the process of being arrested for these laws is extremely damaging to the people who get caught up in the system,” Maza told the Blade. “And the only real solution is to have those laws taken off the books.”
Added Maza, “Unfortunately a lot of people don’t have the motivation to get that done when things like marriage and employment discrimination are being discussed in state legislatures.”
Maza and gay rights attorneys familiar with Maryland said they were not aware of Maryland’s sodomy law being enforced since the late 1990s. [See separate Blade story on Maryland’s sodomy law.]
The Virginia sodomy law, which also remains on the books, has been enforced against gays and straights charged with offenses related to public sex or sex with minors, attorneys familiar with the Virginia Crimes Against Nature law have said. A federal appeals court ruled last month that the Virginia statute was “facially” or completely unconstitutional and could no longer be enforced under any circumstances.
The Equality Matters report notes, however, that police and prosecutors in some states, including Michigan and Texas, have continued to enforce sodomy laws despite the fact that state courts have joined the U.S. Supreme Court in invalidating those laws.
“Even in states where these statutes are never enforced, anti-LGBT animosity is fanned by government recognition that LGBT people are viewed as criminals in the eyes of the law,” Maza states in the Equality Matters report. “This animosity helps create the conditions for anti-LGBT hate crimes as well as disproportionate rates of suicide among non-heterosexual youth,” the report says.
Lawrence loophole?
Some gay rights attorneys, including Washington, D.C. attorney Paul Smith, who successfully argued the Lawrence case before the Supreme Court, have expressed concern that prosecutors and lower court judges are misinterpreting language in the Lawrence decision.
According to these attorneys, certain prosecutors and judges are claiming a passage in the Lawrence decision penned by Justice Anthony Kennedy, who wrote the majority opinion in the case, provides a broad loophole that gives them authority to continue enforcing their state sodomy laws in cases involving public sex, sex with minors, or prostitution-related sex.
The passage in question states, “The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle.”
Virginia Attorney General Ken Cuccinelli, who defended Virginia’s sodomy law against a court challenge this year, has cited the so-called loophole in his arguments urging the Fourth Circuit U.S. Court of Appeals in Richmond to uphold the statute. The court instead declared the law unconstitutional based on the Lawrence decision and refused Cuccinelli’s request that the full 15-judge court reconsider the decision handed down by a three-judge panel.
Cuccinelli has yet to disclose whether he plans to ask the U.S. Supreme Court to consider the case as a final appeal.
Gay rights attorneys say that Kennedy’s passage appearing to limit the scope of the Lawrence decision to non-commercial, consenting sex among adults in private appears reasonable on its face. Smith, for example, told the Blade he and the other attorneys who helped him prepare the Lawrence case before the high court did not call for a ruling that went beyond invalidating state sodomy laws for private, consenting, non-commercial sex between adults.
But gay rights attorneys say they do not think Justice Kennedy and the justices who ruled with him intended that gays be singled out for harsher treatment than straights for identical infractions through the enforcement of state sodomy laws.
In the Equality Matters report, Maza points out that prosecutors in some states, especially Louisiana, have used sodomy laws to push for harsher penalties against LGBT suspects using sodomy laws than they would for heterosexual suspects accused of engaging in the exact same behavior, such as prostitution or public sex.
In Louisiana, the report says, people accused of engaging in prostitution could be charged either under the state’s anti-prostitution law or under the solicitation provision of the Louisiana “Crime Against Nature” law, which criminalizes oral and anal sex.
The Crime Against Nature statute carries a longer prison term than the prostitution law, the report says, and unlike the prostitution statute, people convicted under the Crime Against Nature law must register as sex offenders, even if the sex is between consenting adults.
Activists say some of Louisiana’s transgender women and young gay men who have been rejected by their families for being gay or transgender engage in prostitution as a means of survival. Activists say members of these two groups have been among those most frequently charged under the Crime Against Nature law in Louisiana.
The Center for Constitutional Rights, which has provided legal assistance to people charged under Louisiana’s crime against nature law, has criticized law enforcement officials for seeking to enforce the law up until last year, when a state court ruled it could no longer be enforced based on the Lawrence decision.
“[T]he only reason our clients are registered sex offenders is that they were convicted under the provisions of a 200-year-old statute that condemns non-procreative sex acts and sex acts traditionally associated with homosexuality, solely on grounds of moral disapproval,” the group said in a statement.
The Equality Matters report says one of the most dramatic examples of how a state sodomy law can inflict a harsher penalty on LGBT people surfaced in Kansas in 2004. In a case known as State v. Limon, a Kansas state appellate court cited the so-called Lawrence loophole or “exemption” for minors in a ruling upholding a trial court conviction of an 18-year-old male charged with engaging in consensual oral sex with a 14-year-old boy. Both had been living in the same residential school facility for mentally challenged youth.
If the 14-year-old had been a girl rather than a boy, the 18-year-old would have been charged under a Kansas “Romeo & Juliet” law. That law calls for a young adult charged with having sex with a minor whose age is within four years of the young adult to receive a far more lenient sentence under the state’s statutory rape law if the sex is consensual. The 18-year-old, who was charged and convicted under the Kansas criminal sodomy law, was sentenced to 17 years in prison.
His conviction was later overturned by the U.S. Supreme Court on grounds that the Kansas sodomy law was unconstitutional based on the Lawrence decision.
“The reality is that, in many states, enforcement occurs sporadically, typically at the discretion of particular police officers,” said Maza in discussing the rationale for enforcing sodomy laws.
“Even though the laws are clearly unconstitutional, their existence in the legal code gives officers the cover they need to arrest and prosecute gay people,” he said. “Sometimes officers simply choose to ignore Lawrence altogether in an attempt to enforce state sodomy laws as if the decision never occurred.”
Although the majority of sodomy cases are eventually dismissed, Maza said, the fact that people are still charged under the laws, and few people until recently were aware of this taking place, demonstrates that LGBT organizations should take a far more aggressive approach in addressing the issue.
“Only fully repealing these measures ensures that LGBT Americans will be protected from arbitrary and discriminatory legal treatment,” Maza said.
Following is a list of the states that had sodomy laws on the books as of early this week.
Montana’s governor was expected to sign a bill this week to repeal that state’s sodomy law, making Montana the first state to repeal its sodomy statute through legislation in many years.
An asterisk indicates the state sodomy law only applies to gay sex.
- Alabama
- Florida
- Georgia
- Idaho
- Kansas*
- Louisiana
- Maryland
- Massachusetts
- Michigan
- Minnesota
- Mississippi
- Montana*
- North Carolina
- Oklahoma*
- South Carolina
- Texas*
- Utah
- Virginia
National
Blade reporters reflect on covering Pulse massacre 10 years ago
Orlando stepped up to comfort and support its LGBTQ community
Friday marks 10 years since a gunman killed 49 people inside the Pulse nightclub in Orlando, Fla.
The massacre, which, at the time was the deadliest mass shooting in modern U.S. history, left the LGBTQ community in this country and around the world reeling. It also prompted renewed calls for gun control.
The OnePulse Foundation, which Pulse owner Barbara Poma founded after the massacre, raised upwards of $20 million for a memorial that never materialized.
The city of Orlando in 2023 purchased the Pulse property for $2 million. Crews earlier this year demolished the former nightclub. The city of Orlando has pledged $12 million for a permanent memorial that is scheduled to open in 2027.
Washington Blade Editor Kevin Naff and International News Editor Michael K. Lavers reported from Orlando in the days after the massacre. Here are their reflections a decade later.
Describe the scene when you arrived in Orlando. Where did you go first?
NAFF: Most mainstream reporters headed for the Pulse nightclub, but it was already roped off with police keeping bystanders at least a full city block away. Instead, I hurried to The Center, Orlando’s LGBTQ community center, downtown. I expected to find it locked down with tight security but instead the doors were flung open and everyone inside was busy at work. No tears, just dedicated staff and volunteers working the phones to secure visas and free plane tickets for relatives of the victims. The director gave me a tour and in the back storage room were pallets and pallets of bottled water stacked to the ceiling. When I asked what all the water was for, he said the city had issued a call for blood donations and the lines to donate were 1,500 deep in 100-degree heat. So The Center drove around to all the sites to deliver water to all those standing in line.
That scene was so inspiring and a testament to the strength and resiliency of the LGBTQ community. We’d seen tragedy before and knew how to respond.
LAVERS: I arrived in Orlando about 14 hours after the massacre took place. The city was shellshocked.
Equality Florida, the state’s LGBTQ advocacy group, and other organizations held a press conference at The Center shortly after my flight from D.C. landed. I drove there from the airport. Terry DeCarlo, who was The Center’s executive director at the time, along with then-Equality Florida Executive Director Nadine Smith and others spoke on behalf of a community that was reeling. The Center at the press conference handed out business cards that read, “You matter.” I had it in my wallet when I drove to a makeshift memorial that was a block from Pulse — the police had cordoned off the area immediately around the nightclub. A local resident who I interviewed told me that she did not know if her friends who were at Pulse when the gunman opened fire survived. Another person with whom I spoke shared a similar story.
A torrential downpour began shortly after I arrived. The storm was an apt metaphor for the raw emotion of that horrific day.
What’s your most prominent memory of covering the Pulse massacre?
NAFF: I was covering a vigil in downtown Orlando when then-Florida Gov. Rick Scott’s motorcade arrived unannounced. To that point, he had not addressed the LGBTQ angle and seemed to be downplaying the fact that this was an attack on our community. I hurried to the front row as he held an impromptu news conference. To my dismay, he took only three short questions from TV reporters then rushed away. I grabbed his communications director and insisted that Scott take a question from the LGBTQ media. She agreed and told me to wait next to the SUV. When Scott approached, I asked him, “What is your message to LGBTQ Floridians?”
To my surprise, he sputtered, stammered, and broke into tears before telling me, “This was an attack, what else can you say? This was an attack against the gays, an attack against Hispanics, an attack against our country, our nation and it’s disgusting. The biggest thing we do now is ask how to make sure this doesn’t happen again.”
It was his first public acknowledgment that the LGBTQ community was the target of the attack.
LAVERS: Two moments stand out for me.
The first moment is when then-President Barack Obama and then-Vice President Joe Biden traveled to Orlando on June 16, four days after the massacre. I was one of the reporters who the White House asked to be part of the local press pool. I was about 50 feet away from Obama and Biden when they placed bouquets with 49 flowers — one for each of the victims — at a makeshift memorial between City Hall and the Dr. Phillips Center for the Performing Arts in downtown Orlando. Obama in remarks he made to the press pool mentioned one of the gay victims who had once said, “We cannot be afraid.” The emotions of the last four days simply became too much, and I broke down. Another reporter who was part of the press pool who was standing next to me realized I had broken down. She put her hand on my back to console me.
The second moment came a few weeks later when I was in Puerto Rico to cover the community’s response to the massacre and to interview victims’ relatives. Orlando has a very large Puerto Rican community, and nearly half of those who died at Pulse were of Puerto Rican descent.
I drove to Caguas, a city that is roughly 20 miles south of San Juan, the island’s capital, on July 7, and interviewed Aida Velázquez in her small apartment. Her son, Frankie “Jimmy” de Jesús, died at Pulse. Aida talked about her son, and she showed me pictures of him. Jimmy also danced Jíbaro, a Puerto Rican folk dance. The interview took place less than a month after the massacre — Jimmy’s funeral took place in Caguas less than two weeks earlier.
I sat in my car after the interview and sobbed uncontrollably for nearly five minutes. Nothing can possibly prepare you for interviewing a mother who had just lost her child in the most horrific way possible.
How did the local community respond and what about their response gave you hope or inspiration?
NAFF: In addition to the staff at The Center working to assist victims and their families, everyday Orlando residents stepped up to help however they could. At the downtown vigils, straight mothers and fathers carried signs offering hugs to anyone who needed them. I encountered a group of young teenage males who approached a group of law enforcement officers and appeared to perform for them. When they finished, I asked what they were doing and they told me that they were straight friends who lived in Orlando and wanted to do something to help so they composed an uplifting rap song and walked around performing it for anyone who needed cheering up.
LAVERS: The way that Orlando rallied around the LGBTQ community was simply inspiring.
Imam Muhammad Musri, president of the Islamic Society of Central Florida, at a memorial service that took place at the Dr. Phillips Performing Arts Center on June 13 said his organization was “united as Americans when it comes to standing with the LGBT community and their rights to live freely and to practice their lives here.” This comment underscored the outpouring of support that Orlando showed its LGBTQ community after Pulse. It was also a call for the better angels among us to reject hate in all of its forms.
What surprised you most about the experience?
NAFF: I was most surprised — and moved — after talking to Rev. Debreita Taylor of Oasis Fellowship Ministries, an LGBTQ-affirming ministry.
“My message is love. Period. Love. Period. There’s nothing in the word of God that faith leaders can go to that teaches hate,” she told me. “Have faith and believe that evil and hate can be eradicated one person at a time. How do you treat someone? How do you embrace someone who treats you wrong? We all bleed, laugh, hope and have great victories and major defeats. And so, you know me, even if you don’t know my name — I’m you.”
LAVERS: It admittedly took me quite a while to fully process what I experienced in Orlando — I was focused on doing my job as a reporter, which was to cover the story, and, most importantly, show the human impact of what had happened. I suppose one surprising aspect of the time I spent in Orlando was that I found myself feeling more defiant against those who seek to destroy our community. They want us to live in fear, and I refuse to give them that satisfaction.
What, if anything, changed as a result of Pulse?
NAFF: In the immediate aftermath of the attack, queer spaces began rethinking their approach to security, which has served us well in the years since. Sadly, just a year later, Pulse was bumped to the No. 2 deadliest mass shooting in U.S. history when a gunman opened fire on the Route 91 Harvest music festival in Las Vegas, killing 60 people. Americans and their politicians never learn from these largely preventable tragedies. The carnage continues.
LAVERS: Gun violence remains a shameful scourge in this country. Our community remains vulnerable to violence and discrimination. President Donald Trump, Vice President JD Vance, and other politicians here in Washington, around the country, and overseas continue to use our community to advance an anti-equality agenda. The carnage continues, as my colleague correctly notes, but our community remains strong and defiant. That gives me hope.
National
Queen Jean is Tony’s first transgender winner
Designer/activist wins for work on ‘Cats: The Jellicle Ball’
It was a historic night at the 79th annual Tony Awards on Sunday as Queen Jean won the award for Best Costume Design of a Musical, making her the first out transgender person to win a Tony.
“This experience has been monumental. We are here for the legacy of queer people, trans people,” she said. “We are taking up space in ways we have to take up space. We have to shift the paradigm. So I just want to say, thank you all so much for this incredible honor. The world right now is deeply, deeply combating so many ailments, and we know as a society that when we come together, we can make real, permanent change.”
She won the award for her work on “Cats: The Jellicle Ball” and was also nominated for best costume design of a play for “Liberation.”
In addition to her stage work, Queen Jean is the founder of Black Trans Liberation, an organization that supports trans and gender-nonconforming people in New York City.
National
Madonna turns Times Square into massive dance floor
Pop icon celebrates Pride month with surprise performance
Pop icon Madonna celebrated Pride month with a pop-up performance in New York City’s Times Square on Thursday to the delight of 50,000 fans.
She performed for about 15 minutes high above street level, including several songs from her new album “Confessions II” due on July 3, along with a trio of songs from the first “Confessions on a Dance Floor.”
In addition to the brand new “Love Sensation,” she performed “I Feel So Free” and “Bring Your Love,” plus “Hung Up,” “Get Together” and “I Love New York.” She wished the crowd a happy Pride season; the event was shared with audiences through Grindr’s first-ever livestream.
PHOTOS: The Audacity Brunch
D.C. Council approves expanded grant funding for Mayor’s Office of LGBTQ Affairs
Congressional Cemetery hosts Gays & Graves
Baltimore Pride is here
Calendar: June 12-18
Hundreds of thousands expected to attend D.C. Pride events
PHOTOS: Pride Run
Queen Jean is Tony’s first transgender winner
David Archuleta, Monroe Alise named D.C. Pride parade marshals
