Metro Weekly

Massachusetts Senate Passes Bill for Anti-Sodomy Law Repeal

The Massachusetts Senate approved a bill to repeal an anti-sodomy law criminalizing same-sex intimacy and other outdated "morality" laws.

Massachusetts State House – Photo: Daniel Mennerich, via Flickr

The Massachusetts Senate passed a bill seeking to repeal the commonwealth’s now-defunct anti-sodomy law, which remains on the books despite not being enforced. 

Massachusetts is currently one of only 12 states — and the only state in New England — with an anti-sodomy statute still on the books.

Despite the commonwealth being a relative trailblazer on the issue of same-sex marriage, lawmakers have been reticent to repeal laws criminalizing same-sex intimacy — meaning that, technically, any same-sex married couples are in violation of the law if they do not remain celibate.

Of course, the U.S. Supreme Court’s 2003 decision in Lawrence v. Texas invalidated state-level sodomy laws as unconstitutional.

However, unless a state proactively removes prohibitions on same-sex intimacy, local law enforcement authorities could choose to selectively enforce the law with the intent of targeting LGBTQ people — forcing them to expend money and energy defending themselves in court, even if the charges would ultimately be dismissed.

Additionally, if the Supreme Court were to reverse its finding in the Lawrence case, those 12 states where anti-sodomy statutes have not been repealed would immediately be revived and could be used to prosecute LGBTQ people.

Under Massachusetts’ anti-sodomy statute, which equates same-sex activity with bestiality, a person could be imprisoned for 20 years in prison for violating the law.

A similar law punishes those convicted of an “unnatural and lascivious act” with a five-year prison sentence and a fine of up to $1,000.

The anti-sodomy and “unnatural acts” laws are being targeted for repeal by some more liberal members of the state legislature, who are seeking to repeal or erase other outdated laws governing personal conduct, typically known as “morality” laws.

One such law is a prohibition on “night walking,” which critics say can be used to harass individuals, especially transgender and gender-nonconforming individuals, for simply being out in public, allowing law enforcement to claim that such people intend to engage in prostitution.

However, despite arguments from opponents, repealing the “night walking” law would not change other commonwealth laws declaring prostitution illegal.

The Senate also added an amendment repealing a ban on “blasphemy,” a rarely-enforced statute in which Massachusetts residents are supposed to be punished for using the name of “God,” “Jesus Christ,” or the “Holy Spirit” in non-religious contexts, such as when cursing.

That law imposes a punishment of a $300 fine and up to a year in prison for violators. 

The bill, S.2551, contains a provision that would create a commission to identify outdated or unconstitutional laws, like the anti-sodomy statute, and recommend to legislators that they be repealed.

As reported by Axios, earlier versions of the bill, sponsored by former Rep. Byron Rushing (D-Boston), who left office in 2019, had sought to eliminate a multitude of other rarely-enforced laws, or those that have been deemed unconstitutional by state courts, including those that criminalized spitting, adultery, and even being homeless.

But those bills stalled over lawmakers’ reticence to repeal the anti-blasphemy law — which likely violates the First Amendment — and the prohibition on spitting, in particular.

As a result, the bill died in the House of Representatives, which, despite its partisan affiliation, contains large numbers of socially conservative and religious Democrats.

Sen. William Brownsberger (D-Belmont), who identifies as bisexual, warned the State House News Service that there is no guarantee that the anti-sodomy and “unnatural acts” won’t become enforceable once again, particularly given statements from conservatives, including Justices Clarence Thomas and Samuel Alito, arguing that the Supreme Court should revisit its decision in the Lawrence case, as well as the Obergefell v. Hodges case that struck down state-level bans on same-sex marriage. 

“Today, we seem to have a Supreme Court that’s…backpedaling, they backpedaled on the idea that the right to choose is a fundamental right of a human being enshrined in the Constitution. And we have reason to fear that they will backpedal on other protections for individuals,” Brownsberger said.

“So in this climate, it is more important than ever, that Massachusetts continue to lead on being a state where we respect the rights of individuals and purge our books of archaic statutes which criminalize love and are based on basically patriarchal fear, notions of cleanliness and uncleanliness and very dated thinking.”

“For decades, these laws were used to justify arresting and jailing us…and we never want to risk returning to those sorry days,” Arline Isaacson, the co-chair of the Massachusetts Gay and Lesbian Political Caucus, told Axios.

The bill must now be passed by the House of Representatives. But it is unclear whether Democratic leaders will even allow the bill to receive a hearing, let alone a floor vote. While Rep. Jay Livingstone (D-Boston), a co-sponsor of the House version of the bill, hopes that Speaker Ron Mariano will allow a vote, given the Speaker’s past support for same-sex marriage, it is not a certainty that he will do so.

A similar version of the bill was introduced last year and was studied and passed by the Joint Committee on the Judiciary and the Joint Committee on Rules. It then passed out of the Senate Ways and Means Committee before being approved late last week. 

For the repeal to take effect, House lawmakers must pass the bill — either the Senate version or a compromise version that’s been worked out between the two chambers — before the end of July, at which point it would head to Gov. Maura Healey for her signature into law. 

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