Sodomy is not illegal in the US when it involves private, consensual conduct between adults. The U.S. Supreme Court settled that question in 2003 in Lawrence v. Texas, holding that the Constitution protects adults’ right to choose their intimate relationships without being treated as criminals. Non-consensual acts are a different matter entirely and remain serious felonies in every state, and roughly a dozen states still carry old sodomy statutes in their codes even though those laws can no longer be enforced against consenting adults.
What Lawrence v. Texas Decided
The controlling case is Lawrence v. Texas, 539 U.S. 558 (2003). Houston police entered an apartment, found two men engaged in a private consensual sexual act, and arrested them under a Texas law that criminalized sexual conduct between same-sex partners. The Supreme Court ruled 6–3 that the statute violated the Due Process Clause of the Fourteenth Amendment.1Justia U.S. Supreme Court Center. Lawrence v. Texas, 539 U.S. 558 (2003)
Justice Anthony Kennedy, writing for the majority, framed the case around personal liberty and dignity. The Constitution protects a realm of personal autonomy that includes intimate conduct, and the government’s power to enforce a majority’s moral code has limits, particularly when it reaches into the most private aspects of someone’s life.2Library of Congress. Lawrence et al. v. Texas, 539 U.S. 558 (2003)
The ruling explicitly overturned Bowers v. Hardwick, the 1986 decision that had upheld Georgia’s sodomy law.3Justia U.S. Supreme Court Center. Bowers v. Hardwick, 478 U.S. 186 (1986) The Lawrence majority wrote that Bowers “was not correct when it was decided” and struck it down. That reversal rendered every state sodomy law unenforceable as applied to consenting adults in private.
States That Still Have Sodomy Laws on the Books
About a dozen states never repealed their statutes after Lawrence. Texas, Michigan, Florida, Georgia, Louisiana, Mississippi, and several others still carry the language. Michigan’s code labels the conduct a felony punishable by up to fifteen years in prison. Florida classifies it as a misdemeanor. These “zombie laws” sit in the statute books without legal force.
Repeal has stalled in different states for different reasons: legislators avoiding a vote that could be twisted in a campaign, routine code cleanup falling to the bottom of the agenda, and repeal bills running out of time on the calendar.
What matters for anyone reading their state’s code: no prosecutor can bring a case against consenting adults for private sexual conduct under these statutes. Constitutional protection overrides the state text, and any charge would be thrown out. The lingering language can still cause confusion, and in rare cases officers unfamiliar with the law have invoked it as a pretext, but a prosecution on those facts cannot stand.
When Sodomy Is Still a Crime
Lawrence protects only private, consensual conduct between adults. Forced oral or anal sex remains a serious felony in every jurisdiction, typically charged as sexual assault, rape, or “criminal sexual conduct” depending on the state. Many states still use the word “sodomy” in their criminal codes to describe these non-consensual offenses.
Sentences for forcible sodomy are among the harshest in criminal law. Depending on the jurisdiction and circumstances, a conviction can carry anywhere from five years to life in prison. Aggravating factors push sentences higher:
- Use of force or weapons typically elevates the charge to the highest felony class.
- Victims who are incapacitated, including those who are unconscious, drugged, or mentally unable to consent, trigger enhanced penalties.
- Victims who are minors draw sentences that often start at ten or fifteen years minimum.
- Some states authorize life without parole for a second conviction involving a serious sexual offense.
A conviction for any of these offenses also triggers mandatory sex offender registration under state law and the federal Sex Offender Registration and Notification Act (SORNA). Federal standards require registration for any sex offense involving force, threats, or a victim who cannot consent. SORNA does not require registration for offenses based on consensual sexual conduct between adults where neither party is under the custodial authority of the other, so the federal framework itself draws a sharp line between forced and consensual acts.4SMART Office, U.S. Department of Justice. Current Law
Service Members and Article 125
Military law ran on a separate track for decades. Article 125 of the Uniform Code of Military Justice criminalized sodomy outright, consent or no consent, and applied to all service members at all times. After Lawrence, the U.S. Court of Appeals for the Armed Forces held in United States v. Marcum (2004) and United States v. Castellano (2013) that purely private, consensual sexual activity between adults is constitutionally protected under military law too, unless aggravating factors exist, such as a superior-subordinate relationship, conduct affecting military order, or involvement of a minor.5United States Court of Appeals for the Armed Forces. Core Criminal Law Subjects: Crimes: Article 125 – Sodomy
Congress later rewrote Article 125 to match constitutional reality, removing consensual sodomy between adults and narrowing the article to non-consensual acts and acts involving minors. A presidential proclamation granted a full, unconditional pardon to service members whose only conviction was for consensual conduct under the former version of Article 125.6U.S. Department of Veterans Affairs. Presidential Proclamation on Certain Violations of Article 125 Under the UCMJ
If You Have an Old Conviction
Some states have created mechanisms for people convicted under now-invalidated sodomy laws to seek expungement or vacatur. The specifics vary by jurisdiction, and the process is not automatic. Anyone carrying an old conviction under one of these statutes should talk with an attorney in that state about what relief is available.