The Massachusetts Supreme Judicial Court refused to throw out anti-sodomy laws last week but clarified the law to exclude private and consensual sex, a decision that has made this ruling a victory for gay rights groups who were challenging the law.
Gay and Lesbian Advocates and Defenders brought nine cases to the court, and the court threw them all out because none of the defendants were subject to prosecution. However, since the court specified the law, GLAD is considering the action a victory.
“This is a tremendous victory. The court today clarified that these antiquated laws may not be used to intrude on individuals’ rights to engage in common acts of intimacy in private settings,” said Jennifer Levi, the GLAD attorney representing the case. “Moreover, in a key part of the ruling, the court affirmed that neither the attorney general nor the district attorneys may prosecute anyone under the challenged laws unless the conduct took place either in public or without consent.”
Despite the clarification of the law, the old anti-sodomy laws still remain on the books.
“The laws are constitutional,” said Ann Donlan, spokeswoman for Massachusetts Attorney General Thomas Reilly. She added there are still cases in which the law is used.
“The concern isn’t what happens between consenting adults in private,” Donlan said. “For almost 30 years, the SJC has held that the statutes do not apply to purely private conduct among consenting adults.”
Levi said the court’s position can be attributed to a lack of understanding of gay and lesbian sexual behavior.
“There is a broad misconception that the intimate conduct gay, lesbian and bisexual people engage in violates the law,” Levi said. “That is not true, and this decision should clarify that once and for all.”
Nick Florio, president of Spectrum, Boston University’s gay, lesbian, bisexual and transgendered student group, agreed an amendment is still necessary.
“The gay community would do well to continue fighting [the law] until an amendment is added to the law,” said Florio, a College of Arts and Sciences senior.
“If they don’t change it on the books, then they can go back on their word,” he said.
The laws do not only pertain to gay and lesbians. Massachusetts law prohibits anal sex and bestiality for all people, gay or non-gay. A second law prohibits “unnatural and lascivious acts,” which the courts have interpreted as oral and anal sex.
This Massachusetts court decision follows a trend of rulings that have taken down sodomy laws in Kentucky, Georgia, Tennessee, Minnesota and Arkansas. Last century, all 50 states had sodomy laws. Now only 14 states, including Massachusetts, still have these laws. Four states have laws pertaining only to same-sex conduct.
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