Legacy of Sodomy Bans Endure in Michigan

Shockingly, the state has kept unconstitutional, homophobic laws on the book

Illustration by Ben Wiseman
Baddie Brooks. Courtesy photo
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Published: June 15, 2022 | Last Updated: July 14, 2023

Nineteen years after the landmark Lawrence v. Texas decision, where the Supreme Court struck down laws criminalizing consensual same-sex activity, archaic sodomy bans remain on the books in a dozen states. Despite attempts by Democratic legislators in Michigan, the unconstitutional and homophobic law that outlaws sodomy in the state has not been repealed.

A sodomy ban was first introduced in the Michigan Territory in 1810, making the crime a capital offense. After many changes in the sodomy law in the following years, the combination of sex with animals and so-called ‘unnatural’ sex with people was added in 1897, where it remains to this day, despite a state penal code change in 1931.

Dr. Francine Banner, a sociology professor who also teaches women's and gender studies at the University of Michigan-Dearborn, explains that although it is not uncommon for outdated laws to remain on the books, the presence of out-of-date laws takes on a special significance when they are discriminatory or target specific populations.

“Laws have an expressive function, meaning that the effect of having a law on the books can range far beyond the ability to punish,” Banner says. “When legislatures vote to repeal and remove unconstitutional laws like sodomy bans, it is not just symbolic — the repeal is an important statement that all persons in the state are valued.”

Banner sees anti-sodomy laws coming from a particularly hateful place and brings up the example of one of the most notable sodomy prosecutions in Michigan, which took place in 1967.

Michigan police waited for more than an hour outside of a tent, where a lesbian couple were staying on a camping trip, before entering and accusing the women of being in “close bodily contact." Both women were sentenced to prison.

“Persons subjected to these laws can carry lifelong burdens, having been arrested and punished for engaging in intimate, consensual acts in spaces they thought were private,” Banner adds.

Legislative barriers

When animal abuse legislation that increased penalties for bestiality passed in the Michigan Senate in 2016, legislators chose not to remove the anti-gay sections of the penal code. According to comments from former Republican member of the Michigan State Senate, Rick Jones, there were concerns that discussing the sodomy ban could end up scuppering the animal abuse bill.

"Nobody wants to touch it. I would rather not even bring up the topic, because I know what would happen. You’d get both sides screaming and you end up with a big fight that’s not needed because it’s unconstitutional,” Jones told The New Civil Rights Movement.

Outside of the animal abuse bill, legislation has been introduced to repeal Michigan’s sodomy law but, as of today, the Republican leadership in both the State House and Senate have not allowed the bills to move forward in committee.

“I don’t know why they have refused to do so,” says Jay Kaplan, staff attorney for the ACLU of Michigan's LGBT Project. “It seems that whenever there is legislation that may be viewed as treating LGBT people favorably, such legislation is not permitted to advance.”

Kaplan notes that while Michigan’s sodomy law does not specifically target same-sex sodomy, these laws have been used to define LGBTQ+ people solely on presumed sexual behavior and to provide a legal rationale for discrimination against the LGBTQ+ community.

“The existence of Michigan’s law is a hurtful reminder of how this law was used to both vilify our community and justify the LGBT community being treated less than,” Kaplan says.

National issue

Despite the Lawrence v. Texas ruling making these sodomy bans unlawful, in practice, the continuing existence of these laws has, at the least, caused confusion among some law enforcement officials and, worse, potentially emboldened those police officers who are biased to make homophobic policing decisions on the basis of the outdated law.

For example, in 2009, two men kissing at an El Paso restaurant were threatened with jail by police officers who cited the "homosexual conduct" statute. In 2013, two men were targeted by law enforcement officials in Louisiana and arrested for “crimes against nature." In 2015, two different men were arrested for having consensual sex in Louisiana, with there being several other examples of the misusage of sodomy bans by police across the U.S.

Kyle Taylor, who works at Ferndale’s Affirmations LGBTQ+ community center, agrees that in some municipalities, there may be a risk of police forces willfully misinterpreting the law.

“Depending on what police force you're talking about and what kind of municipality you're living in, that could be an issue, and I could definitely see how that could play into something [negative]. Although, I don't see that happening in somewhere like a Ferndale or a Royal Oak in Michigan,” Taylor tells Pride Source.

Looming threat?

As the recent leak from the Supreme Court points to the national right to an abortion being revoked, through the overturning of Roe v. Wade, decisions on the legality of abortion could soon return to the states, with up to half set to either ban or severely restrict abortion access.

If the Supreme Court were to perform a similar reversal of Lawrence v. Texas, same-sex sexual activity would potentially become illegal overnight in a dozen states, including Michigan. “It's startling to me, especially because we've gone so far forward in Michigan in terms of being accepting of [LGBT rights],” says Taylor.

“It’s just a reminder that LGBT rights can be taken away so quickly in one election. Even more alarming is that those laws are still on the books, and, depending on who's in power, they can actually make [these laws] a reality again,” he says.

“I'm sure somebody would sue at some point and take it to the Supreme Court. Who knows how far it would get?”