Why one Maryland senator fought to repeal his state’s anti-sodomy law

Today marks the 20th anniversary of Lawrence v. Texas, the landmark U.S. Supreme Court case that invalidated anti-sodomy laws nationwide. While 12 states still have anti-sodomy laws on their books, Maryland recently repealed part of its sodomy statute, specifically a provision against “perverted and unnatural sex acts.”

Maryland state Sen. Clarence Lam (D) told LGBTQ Nation about his state’s law, why he spearheaded its repeal, and whether he worries about the possibility of the Lawrence decision ever being overturned by a conservative Supreme Court in the future.

Related:

Texas AG willing to spearhead Supreme Court case to criminalize sodomy again

Ken Paxton has long supported sodomy bans, saying they’re necessary for “public health” and to “discourage sexual activity outside of marriage.”

LGBTQ Nation: What can you tell us about the history of your state’s anti-sodomy statutes?

Stay connected to your community

Connect with the issues and events that impact your community at home and beyond by subscribing to our newsletter.

Daily

Weekly

Good News

LAM: Maryland is one of the original 13 colonies and so there are a lot of parts of our law that are based on English common law. Sodomy was criminalized in Maryland way back under English common law, back when we were a colony. The specific parts of the statute that we removed this year were the “perverted and unnatural sex acts” [statute] and also the sodomy statute.

There were three attempts by the Senate back in the late ’80s to repeal sodomy from statute, but they were unsuccessful because the House never took up the bill, and so they remained on. Then the ’90s, the Maryland Supreme Court ruled that the state’s sodomy laws could not be used against heterosexual couples but could continue to be used against LGBTQ individuals — kind of a bizarre ruling. But for whatever reason, they validated sodomy for heterosexuals in the early 1990s.

Back in 2020, we had a bill that would have removed both the sodomy and perverted and unnatural sex acts provisions. That bill, as it made its way through the legislature, had the perversion and natural sex act provision repeal stripped out of it. And so sodomy was actually repealed back in 2020.

Was the law actively being used to persecute gay people or did it remain on the books just to suggest that queers are deviant law breakers?

The reason the perverted and unnatural sex acts provision was left on the books was because the prosecutors in the state came to the General Assembly and said, “We want to have some means to be able to prosecute people for sexual acts that are inappropriate” — although “perverted and unnatural sex acts” is never defined in the statute — so it’s kind of in the eye of the beholder. Unfortunately, that means when it comes to law enforcement, it’s in the eye of the prosecutors and our state’s attorneys here in various counties that we have.

They assured us that this provision was not going to be utilized in the future [against men who have sex with men]. The irony is that in 2021, one of the counties here, Harford County, Maryland, police arrested and charged several gay men who were in a business with unnatural and perverted sexual practices. It was kind of like an adult bookstore. Basically, I think they wanted to harass people who were patronizing this business.

So, one year after the state’s attorneys across the state came to us and said,” We’re not going to use this part of the statute… you can repeal sodomy but don’t repeal this,” the very next year, there were LGBTQ individuals that were charged under unnatural perverted sexual practices. It was ridiculous.

There was a public outcry. I think the charges were dropped, but they were used as leverage to get the men to plead the lesser charges.… So we filed legislation [in the most recent legislative session] to basically to finish off what should have been removed in the first place: perverted and unnatural sexual practices.

But Maryland already has laws against child sex abuse, rape, and animal cruelty that would prevent the sort of things that would otherwise be covered by a perverted and unnatural sex acts provision, right?

We told the attorneys that. We made that very clear…. It was unnecessary.

Which groups were in support of repealing the statute?

Obviously, the LGBTQ community and their advocates… lawyers from the Maryland Attorney General’s Office saying the same thing: that this part of the statute isn’t really necessary… Also, this organization called the Maryland Coalition Against Sexual Assault (MCASA), they too recognized that this is not appropriate, and survivors and victims of sexual assaults should be able to seek justice appropriately under other parts of the law that don’t discriminate against certain types of individuals.

What personal reasons did you have for wanting to repeal the law?

It was really just about protecting LGBTQ people and updating the statute. I’m not LGBTQ, there’s nothing personal here. I know people and have friends and colleagues who are obviously LGBTQ, but I just felt like it was the right thing to do.

Laws that are made are not perfect and they need to be periodically updated. While we all love filing legislation to create and build and do new things, there also needs to be an effort to periodically look at the statute and realize that there’s some vestiges of the statute that are no longer appropriate that probably would never appropriate to begin with, but particularly in the current age, are really not appropriate and should be removed as part of the periodic updating of our laws. This one was one that really just stood out as being inappropriate and unnecessary.

Were you ever worried that political opponents might try to mischaracterize you as someone who wants to legalize perverted and unnatural sex acts?

It didn’t really concern me because, you know, I think in some ways this is overdue.

The vast majority of the public recognizes that sexual activity between two consenting adults is something that’s really up to them, that it’s not for the law and government to be inserted in there. Sodomy was just another means of having the government involved in people’s personal and private affairs. And, you know, sodomy, the term is even offensive.

What people who are loving, consenting adults do is completely up to them. Just because you engage in that practice doesn’t mean it’s not appropriate and fully consensual. We shouldn’t be making judgments on how people love each other. And I think this part of the statute was a judgment on how people can or can’t love each other, on what’s appropriate and what’s an inappropriate demonstration of that love. That’s not an appropriate place for the law to go.

When you frame it that way to the public, I think they get it and move very quickly. Over the last couple of decades we’ve seen — with the broadening LGBTQ rights, more acceptance of diversity and inclusion, more LGBTQ people on TV these days — it’s not a big deal. I think people recognize that sodomy was an inappropriate value judgment on the LGBTQ community, that repealing this was not inappropriate.

There is a lot broader acceptance of the LGBTQ community than one would think — in spite of all the current high-profile backlash against gender-affirming care — that they don’t think the repeal of sodomy and unnatural sexual practices will generate that level of opposition.

So was I concerned about it? No, because I felt like it was the right thing to do.

We as legislators need to stand on what we think is the right thing to do. And I think we will be judged in history on what we think is right, even if it’s not necessarily politically popular at that time. It’s not how we view every piece of legislation that comes before us, but I think there are important fundamental issues — particularly human rights and anti-discrimination issues — where we have come so far as a nation that we need to be able to continue to advance human and civil rights for all types of people simply because it’s the right thing to do.

Last year, in its decision overturning abortion rights established in Roe v. Wade, Supreme Court Justice Clarence Thomas wrote that the court should consider overturning its 2003 ruling against sodomy laws. Do you think that this is just religious conservative bluster or should it really concern us?

Yes, I think it should be taken seriously. It has not gone unnoticed that Justice Thomas continues to use various decisions as occasions to bring up other established laws that he thinks should be overturned. And I think the current Supreme Court has shown that it doesn’t respect precedent. The overturning of Roe sets a real precedent to open the door for overturning other protections that are in place for the LGBTQ community, like Lawrence. And the fact that Justice Thomas is pointing to Lawrence is particularly concerning.