The Walking Dead: How the Criminal Regulation of Sodomy Survived Lawrence v. Texas

Abstract

Eighteen years after the Supreme Court held in Lawrence v. Texas that a law criminalizing sodomy violated the constitutional guarantee to substantive due process, individuals are still arrested, prosecuted, convicted, and incarcerated pursuant to statutes that are the material equivalent of the one at issue in Lawrence as a matter of course. Though this seems both strange and unfair, it is neither all that unusual nor accidental. Because the constitutional order renders the judiciary a passive institution and radically fragments authority across a polycentric collection of governments, noncompliance with judicial decisions is endemic to American institutional design.

While the Lawrence decision cast unflagging constitutional disapproval on statutes criminalizing private, consensual, nonprocreative intercourse, multiple states continue to enforce criminal prohibitions on sodomy on the theory that Lawrence only proscribes inequitable applications of categorical sodomy bans, as opposed to leaving them unenforceable entirely. This Article thus represents the first comprehensive examination of how criminal prohibitions on sodomy have stubbornly survived their own intended death.

States enforce laws criminalizing sodomy through both direct prosecution as well as collateral means, namely, by requiring individuals convicted under bans on consensual sodomy to register as sex offenders. This Article maintains that a faithful reading of Lawrence demands the wholesale abandonment of laws facially criminalizing private, consensual sexual intimacy, and recommends the legislative repeal of programs enabling both direct and collateral enforcement of categorical prohibitions on sodomy.

Keywords: criminal law, constitutional law, due process

JEL Classification: K14, K42, J15