Consensual sodomy is not still a crime in the United States when it happens in private between adults. The Supreme Court settled that in 2003, and the ruling binds every state and the federal government. What complicates the picture is that roughly a dozen states never removed their old sodomy statutes from the books, the military operated under a separate rule until recently, and a 2022 Supreme Court concurrence openly invited a future challenge to the 2003 decision.
The Constitutional Rule That Controls Today
In Lawrence v. Texas, the Supreme Court struck down a Texas statute that criminalized consensual sexual conduct between people of the same sex. The Court held that the liberty protected by the Due Process Clause of the Fourteenth Amendment includes the right of adults to engage in private, consensual intimate conduct without government interference.1Justia. Lawrence v. Texas The decision overruled Bowers v. Hardwick, the 1986 case that had allowed states to criminalize sodomy.
The effect was immediate. Every state sodomy law in the country became unenforceable against consenting adults acting in private. Police cannot arrest for this conduct, prosecutors cannot charge it, and courts cannot convict for it. Any charge filed under one of these statutes is subject to dismissal under Lawrence as binding federal precedent.
What Lawrence Does Not Cover
Justice Kennedy’s majority opinion drew the boundaries deliberately. It stated: “The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution.”1Justia. Lawrence v. Texas
So the ruling shields private conduct between consenting adults, and nothing else. Public sexual acts remain prosecutable as indecency or lewdness offenses. Prostitution and commercial sex remain criminal. Any act involving a minor or anyone who did not consent is subject to severe criminal penalties regardless of what specific conduct occurred. Courts have consistently read Lawrence as protecting a zone of personal privacy rather than any blanket right to sexual behavior.
States With Sodomy Laws Still on the Books
About a dozen states still carry sodomy statutes in their legal codes even though Lawrence makes those laws unenforceable. These are sometimes called “zombie laws” because the text survives without legal power. Maryland and Minnesota repealed their statutes in 2023, but Texas, Louisiana, Florida, Georgia, Kansas, Michigan, Mississippi, North Carolina, Oklahoma, and South Carolina are among the states that have not.
None of these statutes can produce a valid arrest, prosecution, or conviction for consensual adult conduct. The Supremacy Clause means federal court rulings override conflicting state laws, and Lawrence is settled Supreme Court precedent. A defense attorney facing charges under one of these statutes would move to dismiss immediately, and a judge applying the law correctly would grant that motion.
The continued existence of the laws is not purely symbolic, though. They can confuse officers who are unfamiliar with Lawrence, and advocacy groups have documented isolated arrests under these statutes in the years after the decision. Those arrests do not hold up in court, but they can still cause real harm to the people arrested.
When Sexual Conduct Is Still a Serious Crime
Lawrence drew a bright line at consent and privacy. On the other side of that line, the penalties are severe.
Nonconsensual Acts
Any sexual act committed through force, threats, coercion, or without consent is a serious felony. Under federal law, aggravated sexual abuse carries a sentence of any term of years up to life in prison.2Office of the Law Revision Counsel. 18 USC 2241 – Aggravated Sexual Abuse State penalties vary but follow a similar range. Sex offense convictions also trigger mandatory registration under the Sex Offender Registration and Notification Act.3SMART Office of Justice Programs. SORNA Requirements
Acts Involving Minors
Sexual contact with anyone below the age of consent is a felony regardless of the minor’s apparent willingness. Federal law sets the age of consent at 18 for situations involving interstate travel or online communication. States set their own thresholds, typically between 16 and 18, which apply within state jurisdiction. Federal aggravated sexual abuse of a child carries a mandatory minimum of 30 years, and a second offense mandates life.2Office of the Law Revision Counsel. 18 USC 2241 – Aggravated Sexual Abuse
Public Conduct and Prostitution
Lawrence’s language expressly excludes both. Public sexual acts can be charged as indecent exposure, lewd conduct, or disorderly conduct depending on the jurisdiction. Prostitution and the solicitation of prostitution remain criminal in nearly every state.
The Military’s Separate Path
Service members operated under a different rule for decades. Article 125 of the Uniform Code of Military Justice originally made sodomy a standalone offense regardless of consent, so troops could be court-martialed for conduct that civilians were constitutionally protected from prosecution for.4Office of the Law Revision Counsel. 10 USC 925 – Art. 125 Congress amended Article 125 in the National Defense Authorization Act for Fiscal Year 2014 to remove consensual conduct from its scope, and rewrote the article entirely in 2016. Sexual assault offenses in the military now sit under Article 120 and use a consent-based framework similar to civilian law.5Office of the Law Revision Counsel. 10 USC 920 – Art. 120. Rape and Sexual Assault Generally
In June 2024, President Biden issued a proclamation granting full and unconditional pardons to service members convicted of consensual, private conduct with adults under the old Article 125. The pardon covers court-martial convictions between May 31, 1951, and December 26, 2013. It does not apply to convictions involving force, minors, prostitution, bestiality, fraternization, or conduct at locations where intimate activity was prohibited. Veterans who believe they qualify can apply through the Department of Veterans Affairs to have their records corrected.6Department of Veterans Affairs. Presidential Proclamation on Certain Violations of Article 125 under the UCMJ
Could Lawrence Be Overturned
This question moved from theoretical to concrete in 2022. When the Supreme Court decided Dobbs v. Jackson Women’s Health Organization and overturned the constitutional right to abortion, Justice Clarence Thomas wrote a concurrence stating: “In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.”7Supreme Court of the United States. Dobbs v. Jackson Womens Health Organization Lawrence rests on the same substantive due process foundation that Dobbs rejected in the abortion context.
No other justice joined Thomas’s concurrence, and the Dobbs majority said it was not calling other precedents into question. Still, a sitting justice has now put the argument in writing. If Lawrence were ever reversed, the zombie statutes in a dozen states could become enforceable again without any new legislation being passed. Whether any state would actually try to enforce them is a separate political question. For now, Lawrence remains good law, no lower court has questioned it, and any prosecution for consensual adult conduct in private would be struck down under current precedent.
Old Convictions From Before 2003
Thousands of people were convicted under sodomy statutes before Lawrence made those laws unconstitutional. The decision did not automatically erase those convictions. A pre-2003 conviction can still appear on background checks, create problems with employment screening, and complicate housing applications.
For veterans convicted under the old Article 125, the 2024 pardon provides a path to clearing military records, but the process requires an affirmative application through the VA.6Department of Veterans Affairs. Presidential Proclamation on Certain Violations of Article 125 under the UCMJ For civilians, the main remedy is petitioning for expungement or record sealing through the court that issued the original conviction. The procedures, costs, and eligibility rules vary widely by jurisdiction, and some states restrict the sealing of sex-offense convictions even when the underlying statute has been struck down. If you are dealing with an old conviction, talk to a criminal defense attorney in the state where the case was decided.