Sodomy laws in the US criminalized oral and anal sex between consenting adults for most of the country’s history, and the Supreme Court struck every one of them down in 2003 in Lawrence v. Texas.1Justia. Lawrence v. Texas No state can enforce such a law against private, consensual adult conduct. Even so, roughly a dozen states still carry the old statutes in their penal codes, and some people convicted decades ago still live with the consequences on their records.
What Sodomy Laws Prohibited
The statutes used deliberately vague language. Many borrowed the phrase “the abominable and detestable crime against nature” from English common law and left courts and prosecutors to decide what it meant. In practice, they targeted oral and anal sex, sometimes regardless of the participants’ gender and sometimes only when the conduct was between people of the same sex. A few states wrote the prohibition broadly enough to reach married couples.
Penalties were severe. Georgia’s statute carried one to twenty years in prison. North Carolina’s historic version authorized five to sixty years. Other states imposed sentences ranging from one to ten years. These were felony-level punishments, meaning a conviction could strip a person of voting rights, disqualify them from professional licenses, and trigger sex offender registration.
Enforcement rarely matched the breadth of the text. Prosecutions of heterosexual married couples were vanishingly rare in the twentieth century, while police used the statutes aggressively against gay men, raiding bars, parks, and private residences. The laws functioned less as a serious attempt to regulate all non-procreative sex and more as a tool for targeting LGBTQ+ people.
How the Supreme Court Ended Them
In 1986, the Court upheld Georgia’s sodomy law in Bowers v. Hardwick by a 5–4 vote, framing the question as whether the Constitution gave “a fundamental right upon homosexuals to engage in sodomy” and answering no.2Justia. Bowers v. Hardwick That decision left states free to keep enforcing their statutes for another seventeen years.
The Court reversed course on June 26, 2003. Police in Houston had entered John Lawrence’s apartment on a false weapons report and found him having sex with another man. Both were arrested under a Texas statute that criminalized same-sex sexual conduct.3Supreme Court of the United States. Lawrence v. Texas Writing for a 6–3 majority, Justice Kennedy held that the Texas law violated the Due Process Clause of the Fourteenth Amendment, which prohibits states from depriving any person of liberty without due process of law.4Legal Information Institute. 14th Amendment Adults, the Court said, have a protected liberty interest in their intimate relationships that the state cannot override simply by declaring certain private conduct immoral.1Justia. Lawrence v. Texas
Kennedy wrote: “The State cannot demean their existence or control their destiny by making their private sexual conduct a crime.”5Legal Information Institute. Lawrence v. Texas The opinion expressly overruled Bowers, which made the ruling apply nationwide and invalidated every state sodomy statute on the books.1Justia. Lawrence v. Texas
States That Still Have the Laws on the Books
Lawrence made every sodomy statute unenforceable, but it did not erase them from state codes. Courts interpret and invalidate laws; only legislatures can formally repeal them. Roughly a dozen states still have their old sodomy provisions sitting in their penal codes alongside active, enforceable laws. Someone reading an official state code might see a sodomy offense carrying a ten-year prison sentence with no indication that the provision is constitutionally dead.
Repeal lags for ordinary legislative reasons. A bill has to be introduced, moved through committee, and passed by both chambers. Some lawmakers see no urgency because the statutes cannot be enforced. Others resist repeal because they do not want a recorded vote that could be described as “legalizing” the conduct. The result is a patchwork: some states cleaned their codes years ago, while others have left the language untouched for over two decades.
The Supremacy Clause requires state courts to follow the Supreme Court’s interpretation of federal law, so any prosecution under one of these zombie statutes would fail on a motion to dismiss.6Constitution Annotated. Overview of Supremacy Clause7Justia. U.S. Constitution Annotated – Obligation of State Courts Under the Supremacy Clause The problem is that getting to that motion still requires an arrest.
Why Unenforceable Statutes Still Cause Harm
Several states have seen post-2003 enforcement actions under invalidated sodomy statutes. Louisiana, Virginia, North Carolina, and Missouri have all documented arrests or citations for conduct the Supreme Court had explicitly protected. In one Missouri case, men were charged after a raid on an adult bookstore, and the ACLU intervened on their behalf.
These cases rarely survive in court, but the harm happens before a judge is involved. An arrest creates a record. It can trigger job loss, public embarrassment, and immigration consequences. Someone who does not know the law is dead may plead guilty on bad advice. The statute’s continued presence in the code gives officers a basis to detain people, even when the charge will inevitably be dropped.
Old Convictions and Sex Offender Registries
For civilians convicted under state sodomy laws before 2003, the legal foundation for the conviction is gone, but the administrative consequences can persist. A felony conviction remains on a person’s record unless specific steps are taken to remove it, and some of these convictions triggered sex offender registration requirements that are still active.
Registration carries ongoing obligations: notifying law enforcement of any change of address, regular check-ins, and residential restrictions. Under federal law, a registered sex offender who fails to update a registration can face up to ten years in prison, and up to thirty years if the person also commits a violent federal crime.8Office of the Law Revision Counsel. 18 U.S. Code 2250 – Failure to Register9United States Department of Justice. Citizen’s Guide To U.S. Federal Law On Sex Offender Registration A person convicted decades ago of consensual adult conduct can still face serious prison time for failing to comply with registration tied to that now-unconstitutional conviction.
Removing a name from the registry generally requires petitioning the court where the original conviction occurred to have the judgment set aside or vacated. The registry will not update on its own, and executive agencies that manage these databases generally lack authority to independently interpret Supreme Court rulings and remove entries without a court order. Court filing fees for expungement or set-aside petitions vary by jurisdiction, and attorney fees depend on the complexity of the case and how many agencies need to be notified.
Professional Licensing and Other Collateral Consequences
Even outside the registry context, an old sodomy conviction can create barriers to professional licensing. Most state licensing boards for fields like healthcare, education, and law require applicants to disclose criminal convictions. A majority of states now limit boards’ ability to deny a license based on a criminal record unless the conviction is directly related to the profession, but the rules vary.
An applicant with an old sodomy conviction may need to explain it, provide documentation that the underlying law was struck down, or get the conviction set aside before the board will process the application. Some boards treat a vacated conviction as if it never happened; others still consider it during character and fitness evaluations. Getting the conviction formally expunged or set aside before applying is usually safer than relying on the board to work through the constitutional history on its own.
A felony record can also affect immigration status, child custody proceedings, firearm ownership rights, and eligibility for public housing. These consequences were built around the assumption that the underlying conduct was criminal. When that assumption falls away, the administrative machinery does not automatically follow, and each consequence typically requires its own separate legal action to address.
The Military Track and the 2024 Pardon
Lawrence v. Texas governed civilian law and did not reach the military’s separate legal system. Article 125 of the Uniform Code of Military Justice criminalized sodomy, including consensual acts between adults, so service members could face court-martial, imprisonment, and a less-than-honorable discharge for private conduct that was fully legal for civilians.10Department of Veterans Affairs. Presidential Proclamation on Certain Violations of Article 125 under the Uniform Code of Military Justice Congress repealed the consensual-sodomy provisions of Article 125 in 2013 through the National Defense Authorization Act, but veterans convicted before that date kept the consequences. A less-than-honorable discharge can disqualify a veteran from VA healthcare, education benefits, home loan programs, and burial in a national cemetery.
On June 26, 2024, President Biden issued a proclamation granting a full and unconditional pardon to individuals convicted by court-martial under the former Article 125 for consensual, private conduct with a partner age 18 or older. The pardon covers qualifying convictions between May 31, 1951, and December 26, 2013.10Department of Veterans Affairs. Presidential Proclamation on Certain Violations of Article 125 under the Uniform Code of Military Justice Pardoned veterans can then apply to upgrade their discharge status and access VA benefits they were previously denied.
The pardon has clear limits. Conduct involving anyone under 18, forcible sodomy, bestiality, fraternization by commissioned or warrant officers, prostitution, acts in prohibited locations, violations of lawful orders, and acts with another service member’s spouse are all excluded.10Department of Veterans Affairs. Presidential Proclamation on Certain Violations of Article 125 under the Uniform Code of Military Justice Eligible veterans go through a two-step process: first obtaining a certificate of pardon from the Department of Defense, then applying for a change in discharge characterization.