Anti-sodomy laws are unenforceable everywhere in the United States. The Supreme Court struck them down in 2003 in Lawrence v. Texas, ruling that the Fourteenth Amendment’s guarantee of liberty protects private, consensual sexual conduct between adults from criminal prosecution. About a dozen states have never formally repealed their statutes, so the text still appears in state codes, but no court will enforce it.
What Sodomy Laws Criminalized
Sodomy statutes generally reached oral and anal sexual contact between individuals. Legislatures used deliberately vague phrasing like “unnatural copulation,” “deviate sexual intercourse,” or the older “crime against nature,” which gave police and prosecutors wide discretion over what fell inside the statute. Some laws targeted only same-sex couples. Others were written in gender-neutral terms that technically applied to everyone, including married couples, though enforcement overwhelmingly focused on gay men.
Penalties varied widely from state to state. In some places a conviction was a misdemeanor with a modest fine. In others it was a felony carrying five, ten, or twenty years in prison, and in several states it triggered sex offender registration. Many codes lumped consensual adult conduct together with sexual assault and offenses against minors under a single heading, so someone convicted of a private, consensual act carried the same criminal label as someone convicted of a violent offense.
How Lawrence v. Texas Made Them Unenforceable
In 1998, Houston police entered John Lawrence’s apartment on a false weapons report and found him engaged in consensual sexual activity with another man. Both men were arrested and convicted under Texas’s “Homosexual Conduct” statute. The case reached the Supreme Court in 2003.
By a six-to-three vote, the Court held that adults have a constitutionally protected liberty interest in private, consensual sexual conduct. Justice Anthony Kennedy wrote that “the State cannot demean their existence or control their destiny by making their private sexual conduct a crime.”1Legal Information Institute. Lawrence v. Texas, 539 US 558 The decision rested on the Due Process Clause of the Fourteenth Amendment, which prohibits states from depriving any person of liberty without due process of law.2Legal Information Institute. 14th Amendment, US Constitution Kennedy read “liberty” broadly to include “an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.”
Lawrence explicitly overruled the Court’s 1986 decision in Bowers v. Hardwick, which had allowed states to criminalize private sexual conduct on the basis of historical moral disapproval. Justice Byron White’s majority opinion in Bowers had framed the issue as whether the Constitution granted “a fundamental right upon homosexuals to engage in sodomy,” calling the claim “at best, facetious.”3Legal Information Institute. Bowers v. Hardwick, 478 US 186 Lawrence declared that Bowers “was not correct when it was decided, and it is not correct today,” and the ruling invalidated sodomy laws in every state that still had them.
The protection reaches all adults regardless of sex or sexual orientation, and it applies in every state. Inside a home, the government has no authority to regulate how consenting adults express intimacy.
States That Still Have Sodomy Laws on the Books
Roughly twelve states never formally repealed their statutes. Texas Penal Code Section 21.06, for example, still classifies “homosexual conduct” as a Class C misdemeanor. Legislatures in Alabama, Idaho, Kansas, Louisiana, Michigan, Mississippi, North Carolina, Oklahoma, South Carolina, and Utah have also left their statutes intact. Montana and Virginia repealed theirs after Lawrence.
These are sometimes called zombie laws. The text exists in the statute books but has no legal force. Any arrest or prosecution under one would be dismissed, because Lawrence binds every court in the country. A defense attorney could get the charges thrown out by citing a single Supreme Court decision.
Why do the statutes survive? Mostly political inertia. Voting to repeal a sodomy law requires a legislator to put a name on the bill, and in some states that carries political risk even when the vote has no practical legal effect. The consequence is a gap between what the code says and what courts will do. If you encounter one of these statutes in a state code, the conduct it describes is not prosecutable.
Is Lawrence at Risk After Dobbs?
The 2022 decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade, raised immediate questions about Lawrence. Both rulings drew on substantive due process under the Fourteenth Amendment.
Justice Clarence Thomas made the threat explicit in a solo concurrence, writing that the Court should “reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” and calling each “demonstrably erroneous.”4Supreme Court of the United States. Dobbs v. Jackson Womens Health Organization The majority opinion by Justice Alito tried to close that door, stating that “nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion” and distinguishing abortion because it “terminates life or potential life.”
No other justice joined Thomas, and no case currently before the Court threatens Lawrence. Still, the vulnerability prompted Congress to pass the Respect for Marriage Act, signed in December 2022, which codified federal recognition of same-sex and interracial marriages as a backstop for Obergefell.5Congress.gov. HR 8404 – Respect for Marriage Act No equivalent federal statute protects the right recognized in Lawrence, which means that right depends on the Court’s continued adherence to its own precedent.
Sodomy Under Military Law
The military operated under a separate rule for decades. Article 125 of the Uniform Code of Military Justice criminalized all sodomy, consensual or not, regardless of the participants’ sex. When Lawrence came down in 2003, the Court of Appeals for the Armed Forces held in United States v. Marcum that Article 125 was not invalidated across the board and applied a case-by-case test that considered military-specific concerns like unit discipline and supervisory relationships.6United States Court of Appeals for the Armed Forces. United States v. Marcum
Congress resolved the question in the National Defense Authorization Act for Fiscal Year 2014, signed on December 26, 2013. The law replaced Article 125’s blanket sodomy offense with narrower prohibitions covering only forcible sodomy and bestiality, effectively decriminalizing consensual conduct.7Congress.gov. S 1197 – National Defense Authorization Act for Fiscal Year 2014 A 2016 amendment redesignated Article 125 entirely; that section of the UCMJ now covers kidnapping and has nothing to do with sexual conduct.8Office of the Law Revision Counsel. 10 USC 925 Art 125 Kidnapping
Old Convictions and Pardons
Striking down a law does not erase the convictions it produced. Records from sodomy prosecutions can still appear on background checks, affect employment, and in some cases trigger sex offender registration requirements.
On the military side, President Biden issued Proclamation 10780 on June 26, 2024, granting a full and unconditional pardon to service members convicted of consensual sodomy under former Article 125. The pardon covers qualifying court-martial convictions from May 31, 1951, through December 26, 2013. It does not apply to cases involving minors, fraternization, coercion, or conduct by someone in a position of authority over the other person.9Department of Veterans Affairs. Presidential Proclamation on Certain Violations of Article 125 Under UCMJ
Civilian relief varies dramatically by state. Some states have created clemency programs for people convicted under historical sodomy laws. Others have no specific mechanism, leaving individuals to file for expungement through the standard court process in the court where the conviction occurred. Expungement is generally harder to obtain when a case resulted in a conviction rather than a dismissal, and eligibility rules differ by jurisdiction. A pardon does not automatically clear a criminal record; in most states it makes the person eligible to petition for expungement as a separate step. Anyone still carrying a conviction from that era should talk to an attorney about the options in their state.