Queer political pundits agree: For a state that became eighth in the nation to pass a human-rights law that bars discrimination on the basis of sexual orientation, there's still a "thorn in the side" of the legal system for lesbians and gays -- an outdated code of sex crimes. Though rarely enforced, laws against fornication, adultery, and sodomy remain on the books in Minnesota.
The sodomy law alone hangs like a dark cloud on the horizon, often used to label gays as criminals. Repealing or omitting Minnesota's sodomy law would be a top prize for GLBT leaders and allies. But it's an issue activists and lawmakers are approaching with trepidation. Framing the issue -- and the political process -- may be everything in this high-stakes game during the 1998 Legislature.
Repealing the sodomy law is an issue that's come up for discussion intermittently for the last 25 years, according to state senator Alan Spear (DFL - Minneapolis), one of Minnesota's two openly gay lawmakers. In 1987, a bill to repeal sodomy was introduced in the Legislature, but ultimately failed. Neither Spear nor state representative Karen Clark (DFL - Minneapolis) authored the bill because, as Spear says, they didn't want it to be seen as a strictly gay issue. "The Minnesota Family Council will tell you that homosexuality is illegal in Minnesota, but it's not," Spear says. "What is illegal is contained in a set of sexual consent laws -- not homosexual sex laws -- [regarding behaviors] that some gays and straights practice."
Sodomy is most commonly legally referred to as any contact between the genitals of one person and mouth or anus of another. The word has its roots in the Bible and is sometimes used to mean sexual deviation. Minnesota's statute concerning sodomy defines it as, "carnally knowing any person by the anus or by or with the mouth." The law bans oral and anal sex, and makes no distinction or exception for married couples. The only legal sex act under the statute is vaginal intercourse.
The state's sodomy law falls under the adult consensual sex laws, which also includes adultery and fornication. The sodomy law is a gross misdemeanor in Minnesota with a $3,000 fine and one year in jail.
Bart J. Cannon, public-policy assistant at the Gay and Lesbian Community Action Council, says the state's sodomy law is rarely enforced and has generally been used only to defend the harassment of queers, prohibit the funding of counseling programs for gay and lesbian youth, and turn courts against homosexuals involved in child-custody cases. Cannon says there have been 74 convictions under the law in Minnesota in the last 20 years but just three convictions in the past 10 years.
There is no federal law pertaining to sodomy, and 25 states don't have sodomy laws. Five states have laws pertaining to gay sodomy only, and the remaining 20 states and the District of Columbia have laws covering all forms of sodomy, even between heterosexuals. Cannon says the law eventually will be repealed in Minnesota. "It's time has come. These laws are anachronistic," he says. Sodomy laws were repealed in North Dakota, South Dakota, and Iowa in the '70s, and Wisconsin repealed its sodomy law in 1983.
"It's an oddity that we continue to have this law on our books," says Ann DeGroot, executive director of the GLCAC. DeGroot says Minnesota has the distinction of having one of the nation's most comprehensive human-rights laws and a sodomy law. "I've talked to other lesbian and gay leaders around the country and they can't believe it."
DeGroot says there are two ways in which the sodomy law might be eliminated. One is for it to be struck down in a court case. That proved successful last July, when Montana's supreme court unanimously struck down that state's sodomy law by ruling that sexual activity between consenting adults of the same gender would no longer be illegal. Although the U.S. Supreme Court found no constitutional right to privacy for same-gender conduct in its landmark 1986 Bowers vs. Hardwick decision, it did permit each state to decriminalize same-gender sodomy.
Minnesota's sodomy law also might be eliminated through a recodification of state statutes -- a process that would weed out laws that are considered unnecessary or that violate personal privacy.
To the relief of GLBT leaders, the Non-felony Enforcement Advisory Committee (NEAC), a bipartisan commission established by the Legislature in 1993 to review all non-felony criminal statutes, has recommended the omission of statutes covering fornication, adultery, and sodomy. Hearings were held over the summer and a bill was introduced last session in the Senate. But so far, there's been little discussion among House lawmakers.
Spear says the measure isn't moving very fast through the legislative process, and he says the queer community isn't "fully geared up" to push it through yet. But he urges gays to keep an eye on the NEAC (pronounced NEE-ack) bill during recodification. "It's clear that the entire NEAC bill will pass easily," Spear says. "There are other controversial parts of the measure as well. But there will likely be attempts from the conservative side of the aisle to reinsert the sodomy law during the recodification process."
In 1987, 29 diverse organizations, including labor, legal, religious, medical, and gay and lesbian groups, joined forces to form the Coalition for Privacy, with a goal of winning support for sodomy-law repeal. DeGroot remembers that unsuccessful effort as a good campaign. "But when you're talking about sex -- and remember, we're a group of people the right wing considers to be sexual deviants -- then it becomes a hot issue." This year a new coalition has been formed that combines the public-policy units at the Minnesota AIDS Project and the GLCAC. Bob Tracy, public policy director for MAP, says part of the misconception surrounding the debate over repealing the sodomy law is that it would also strike down other sex-crime laws that protect potential rape and molestation victims. Tracy says that's simply not true: "It's not about dismantling non-consenting adult laws."
From an HIV/AIDS perspective, those who don't want to see the law repealed are opposing efforts mainly because they see the "safe sex" education of young people as promoting behavior that's illegal. Tracy says the prevailing public opinion that sodomy is something only queers do is inaccurate. "We need to dispel some of the misinformation that HIV is spread only through gay sex." he says. "It's a virus that's transmitted through unprotected sexual activity, gay or straight."
Tracy says the '98 session is an opportunity to begin a long-term process to educate community leaders about the law. He feels education and awareness are important first steps. "There needs to be a greater understanding of the issue first. We don't have the capacity for a win in a legislative floor battle."
One of Tracy's other priorities this session will be a new state and community initiative concerning sexually transmitted diseases (STDs): specifically, improving services outside the Twin Cities metro area. He'll also keep an eye on any attempts to repeal the new syringe-access law, which was passed during the '97 session and goes into effect this summer. And, Tracy says, he'll act as a watchdog on efforts to introduce a mandatory testing bill. Forcing people to be tested for HIV, he says, would only result in further discrimination against people who are HIV-positive.
DeGroot says recodifying the consensual sex laws will be a high priority this year, but she also has other legislative goals in mind. She vows legislation that would allow municipalities in Minnesota to offer domestic-partner benefits will be her top priority. "Municipalities should have the right to decide for themselves whether they want to offer those benefits to employees. Minneapolis wants to, so does Northfield. But it won't require them to do so, it just gives them the option. It's a question of local control."
DeGroot fully expects the right wing to attack any effort to repeal consensual sex laws on the grounds that its part of a gay-rights agenda. "But it's not," says DeGroot. "Both groups [gay and straight] can be charged under the law." She says the state's sodomy law also unfairly applies to disabled people, some of whom cannot engage in sex without committing sodomy. In 1986, the Minnesota Civil Liberties Union sued in Hennepin County District Court on behalf of a disabled man who said he could not engage in sex without committing sodomy. When it comes to consensual sex among adults, DeGroot says the sodomy laws are simply unconstitutional.
Spear, who has been actively working to repeal the sodomy law in Minnesota since 1973, says repeatedly introducing bills to repeal the sodomy law each session would be counterproductive. "It's tougher when the bill is out there on it's own. It becomes a target for the right wing. But, as in the case of other states where the law has been repealed, it's proven to be more successful when it's part of a larger bill," he says. Tracy agrees that rushing in with a bill this session is a bad idea. "If there were to be a defeat of the bill, then it would close down any further discussion in the legislation. Will it be this year's DOMA [Defense of Marriage Act]? Probably. The Minnesota Family Council could consider it another 'hot button' issue. We need a long-term commitment to repealing it."
"I'm always cautiously optimistic," responds DeGroot when asked whether 1998 could be the year that the sodomy laws will disappear and domestic-partner legislation for municipalities succeeds. The GLCAC has scheduled a legislative lobby day at the state capitol for Feb. 18. Its purpose: education and visibility. But DeGroot says it's going to be tough to pass some of the gay-friendly legislation. "It's an election year and there's the gubernatorial race. So, maybe this is the year to build alliances and educate lawmakers, and then the next step is making change."
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