Did Michigan Really Re-Criminalize Sodomy? 

This month the Michigan Senate passed legislation that appeared to make sodomy a felony in the Great Lakes State, penalizing same-sex intercourse with up to 15 years in prison. In truth, the package of legislation that caused the hubbub is known as Logan’s Law, aimed at taking further steps to prevent animal abuse. One would prohibit a person convicted of animal abuse from adopting another pet for the next five years. As part of the bill, the state updated its language on bestiality — but without explicitly striking down Michigan’s existing prohibition on same-sex relations.

Michigan is only part of the problem, as these statutes remain an unfortunate scourge for queer people across the United States. Even though the U.S. Supreme Court declared antisodomy laws unconstitutional in the Lawrence v. Texas decision in 2003, about a dozen states still have laws on the books prohibiting anal intercourse, according to the Human Rights Campaign's latest count. In addition to Michigan, these are Florida, Idaho, Kansas, Michigan, Mississippi, North Carolina, Oklahoma, South Carolina, Texas, Utah, and Alabama, although Alabama's law was struck down by a state court in 2014. A year after same-sex marriage was legalized in all 50 states by the Supreme Court’s historic ruling, what queer people do in the bedroom continues to be criminalized.

In a recent piece on the Michigan bill, Vox’s Libby Nelson suggested such prohibitions are harmless — because they are impossible to uphold. “State criminal codes are overstuffed with outdated, unconstitutional, unenforceable laws of all kinds, and Michigan is no exception,” Nelson wrote. “Adultery is technically a felony in Michigan. So is ‘seducing and debauching an unmarried woman.’”

But as archaic and illegal as the statutes are, Michigan’s antigay law has given local police officers license to target gay men. Back in 1999, attorney and gay rights activist Rudy Serra told Detroit’s Metro Times that local police would regularly target gay men engaging in consensual sexual acts, raiding local highway rest stops. “A clear, ongoing pattern of activity is evident,” Serra told the Times. He called these sting operations an “illegal, homophobic plot to unfairly and unconstitutionally persecute and stigmatize gay men,” In 2009, six years after the ruling in Lawrence v. Texas, Serra reported the stings hadn’t ceased, even though they were based on a law that had been declared unconstitutional.

Police officers have routinely engaged in the same activity in Louisiana. ThinkProgress reported in 2013 that law enforcement in Baton Rouge had recently apprehended at least a dozen men for agreeing to have gay sex with an undercover cop. “None of these cases have been prosecuted because no crime occurred, but these men are still being arrested, temporarily jailed, and fined merely for agreeing to private sexual activity,” ThinkProgress’s Zack Ford wrote.

Tellingly, a spokeswoman for the Baton Rouge Sheriff’s Office, Casey Rayborn Hicks, argued that as long as the antisodomy law remained intact, officers had to follow it. “This is a law that is currently on the Louisiana books, and the sheriff is charged with enforcing the laws passed by our Louisiana Legislature,” Hicks said in a statement. In 2014 the Louisiana House of Representatives voted to maintain the unconstitutional ban on sodomy by a wide 66-27 margin. Sodomy is “not a Louisiana value,” Gary Mills, president of the right-wing Louisiana Family Forum, told USA Today.

While Equality Matters’ Carlos Maza has argued that state antisodomy laws are used to drag people into “humiliating, costly, and discriminatory legal disputes,” states like Texas have fought for their right to continue these practices. The Lone Star State’s Republican politicians widely support antisodomy laws, so much so that upholding them was central to the state party’s platform during the 2010 election cycle. In 2011, then-Texas Gov. Rick Perry, who was seeking the 2012 Republican presidential nomination, claimed not to know about the Lawrence v. Texas ruling. But he had denounced it in his 2010 book Fed Up! — in which he wrote, “Texans have a different view of the world than do the nine oligarchs in robes.”

Anal sex will continue to face crucial challenges both from local law enforcement and Republican opposition. In November, then-GOP presidential candidate Mike Huckabee strongly defended states’ constitutional authority to regulate intercourse. “Sodomy is against the law, on the books, this very day, and the Supreme Court has issued a decree and we have states’ rights here, they have no jurisdiction over Iowa,” the onetime Arkansas governor said during a campaign event.

LGBT rights group Equality Michigan now says that following the widespread Internet backlash to Michigan’s failure to remove antigay language from Logan’s Law, the state will do an about face and finally take the language out. Unfortunately, LGBT Americans have a long way to go before the other states that continue to illegally prosecute and jail queer people for their sexuality follow suit. Last year was a groundbreaking year for same-sex marriage, but the case of Michigan proves we still have so much more work to do before LGBT people are treated equally under the law.

Nico Lang is a Meryl Streep enthusiast, critic, and essayist. You can read his work in the Daily Dot, Salon, Rolling Stone, Vox, The Washington Post, Los Angeles Times, BuzzFeed, The Huffington Post, Mic, and The Guardian.