Give and Take: The Elimination of State Sodomy Laws and
the Introduction of Anti-Same Sex Marriage Laws
Abstract:
As recently as 2003, Justice Scalia linked consensual sodomy and same sex marriage in
his dissenting opinion in Lawrence v. Texas (123 S.Ct. 2472 at 2497). There is an
inherent logic in linking these two issues in terms of state action – they each are key
goals in the fight for the rights of lesbians, gay, and bisexuals. Yet, as this paper
demonstrates, it appears from the evidence of state action on these two issues that any
apparent direct nexus between these two elements is questionable. In fact, state action on
each of these two issues occurs in response to two very different configurations of social,
political, and religious forces. This lack of a direct nexus helps to explain the apparent
contradiction represented by the fact that 27 states in the period between 1961 and 2001
eliminated their restriction on private, consensual sodomy amongst adults while
contemporaneously introducing and maintaining a proscription on same sex marriage.
Convention