Three times last year, state courts overturned laws forbidding sodomy. Judges in Kentucky, Michigan, and Texas struck down state laws prohibiting oral and anal sex between consenting adults.
In the 1986 Bowers v. Hardwick case, the U.S. Supreme Court ruled that the U.S. Constitution does not protect sexual liaisons between homosexuals. But the Court also stated that its decision applied only to the U.S. Constitution and that there could be grounds under state constitutions to challenge sodomy laws.
Attorneys for gay rights groups and persons convicted under sodomy laws were slow to take up this challenge. But after adopting a state-level strategy, they have met with great success. Paula Ettelbrick, legal director of the Lambda Legal Defense and Education Fund, a gay rights group, told the New York Times, "We're three for three since the Supreme Court went against us in 1986, and we're going to keep going."
In their decisions, the courts have ruled that state constitutions protect a greater sphere of privacy than the federal constitution. In Michigan, for example, Judge John A. Murphy noted that the state constitution grants a broad right of privacy within the home, and this right, he claimed, "does not vary depending upon the activities engaged in."
All of the state decisions have come from district courts and could conceivably be overturned by higher courts, but the states have not appealed any of the decisions to date.
Encouraged by their successes last year, gay rights groups plan an even more comprehensive set of challenges this year. Ettelbrick notes that there are plans to eventually challenge sodomy laws in almost every state. "Everywhere except Missouri, that is. We don't really know why, but Missouri is probably hopeless for the foreseeable future because judges there have been particularly unsympathetic to gays and lesbians.
This article originally appeared in print under the headline "Sex Rules".