Every day until the election, we’re introducing you to one character or issue whose fate centers around the political state of sex and gender. We’ll discover which freedoms are at stake, what battles are being fought and what sex in a free country really looks like, all in honor of unfucking a system that seems increasingly hellbent on fucking up fucking. Welcome, everybody, to UnFuck America.
There was, in 1977, a specialty newsstand near the corner of 42nd and Seventh in New York’s frenetic Times Square. It sold foreign and hard-to-find newspapers from all over the world, but on the early spring day Walter Naegle planned to visit, he aimed to keep it domestic. He was after a San Francisco Chronicle, as the auburn-haired 27-year-old was planning on starting anew in the Bay, and he hoped thumbing through the classifieds would take his mind off the unsettling energy of the city.
Nearly there and dewy from walking, Naegle stopped at a crosswalk to let the traffic pass. It was unusually hot that day — a rare April heat wave — so he was surprised to feel an even warmer sensation on his cheek. It was the feeling of a gaze; someone was taking him in.
There, standing next to him, was the most beautiful man he’d ever seen. Tall and elegant in a three-piece Wessex Glen plaid suit with kind brown eyes and a dazzling shock of gray-white hair, he flashed a friendly smile as they waited for the light to change. At 65, the man was old enough to be Naegle’s father. He introduced himself as Bayard Rustin and held out his hand.
Naegle knew who he was. An openly gay civil rights leader famous for his non-violent protest tactics, pivotal role in the March on Washington Movement and mentorship of Martin Luther King Jr., Rustin’s politics — and his personal life — had long been front-page news.
When they sat down at a nearby cafe to talk, Naegle was already familiar with his criminal record. Twenty-four years earlier, Rustin had been arrested in Pasadena for having sex with two men in a parked car. Though he was originally charged with vagrancy and lewd conduct, he plead down to “sex perversion,” a nebulous crime that California and many other states would later classify under the umbrella term of “sodomy.”
Prior to 1962, every U.S. state had a sodomy law that criminalized a suite of sex acts deemed to be “immoral.” Also referred to as crimes against nature (CAN) laws, they typically outlawed things like bestiality, incest and even BDSM, but their main purpose was to criminalize sex between people of the same gender. As such, oral and anal sex were largely illegal, even with consent, and while this occasionally affected heterosexuals caught in the act, it was gays, lesbians and anyone else who dared to have non-procreative sex who were the primary targets for arrest.
But while sodomy laws have been around since pilgrims floated them across the Atlantic to wreck havoc on the New World, they were rarely enforced until the last 150 years. Following a moral panic around prostitution, masturbation and venereal disease, 19th and 20th century politicians and police began to use these laws to punish those whose sexuality they found “unnatural,” ensuring that they were stripped not only of their sexual autonomy, but of their basic rights as Americans, too.
An article by the ACLU outlines how in Utah, sodomy laws were used as justification to deny gay people protections from hate crimes. In Alabama, Arkansas and North Carolina, they were used to deny gay parents custody rights to their own children. In Florida and Mississippi, they blocked queer people from being able to adopt. And in Georgia, Colorado and many other states, they were invoked to fire, evict and openly discriminate against anyone who strayed from the stiff-lipped heterosexual norm.
The liberalization of sexuality and the growing normalization of queerness caused many states to repeal or amend their sodomy statutes in the 1960s and 1970s, but the real nail in the sodomy law coffin came from the Supreme Court in 2003. In the landmark case Lawrence v. Texas, SCOTUS found sodomy laws to be unconstitutional, a ruling that decriminalized consensual gay sex in all 50 states. But while most either repealed or invalidated their sodomy laws in its wake, a handful decided to not only keep them, but to continue enforcing them, too.
It’s the more conservative states who are still doing this — Florida, Georgia, Idaho, Louisiana, Kentucky and Oklahoma, to name a few — but there are a few wildcards like Minnesota who continue to outlaw “carnally knowing any person by the anus or by or with the mouth.” The statute is unenforceable under Lawrence, but it’s written right there in Minnesota law, plain as day: Perfectly consensual mouth or butt stuff warrants a year in jail or a $3,000 fine (or, if you’re particularly unlucky, both). Three states — Kansas, Kentucky and Texas — have statutes that criminalize these activities between same-sex couples only.
If you live in one of the 36 states that abide by Lawrence, perplexing laws like this are nothing more than ugly vestiges of America’s homophobic past. But at the time of Rustin’s much-publicized arrest in 1953, every state in the union considered sodomy to be a serious felony. He spent 50 days in an L.A. County jail, and was required to register as a sex offender.
By the time he and Naegle realized their serendipitous meeting was turning into an unexpected first date, decades had passed since Pasadena. Though Rustin lost a job and many friends over it, he’d learned to live with it, pushing it to the back of his mind as he forged ahead in his career and relationship with Naegle (whom he later adopted in 1982, a common practice among gay and lesbian couples looking to officialize their relationship in the time before same-sex marriage). Save for the occasional harassment by none other than FBI director J. Edgar Hoover — who Naegle says tapped his apartment and often supplied civil rights opponents with copies of Rustin’s arrest record as ammo to pester him with — Rustin’s charges no longer affected him. They were simply, as Naegle says, “a blip in the past.”
But on February 5, 2020, that past returned in a strange and curious way. Wanting to commemorate Rustin’s achievements with an official postal stamp, California Governor Gavin Newsom issued him a rather untimely pardon, 33 years after his death. It was a nice gesture, Naegle thought, but he wasn’t completely comfortable with it. Rustin was a minor celebrity with resources, connections and a comfortable lifestyle — why should he get special treatment when there were countless others whose jobs, marriages and families were destroyed by sodomy charges, simply because they were queer? “This is a much, much bigger problem than what [Rustin] went through,” Naegle says. “It shouldn’t have just been him.”
At least outside of California, it hasn’t been. Over the past few years, lawmakers, lawyers and advocates have renewed their efforts to address the few sodomy statutes that still remain, pushing through bills and reforms with a relative ease that hasn’t been present since Lawrence. Their attempts to do so have been stonewalled before, but now despite the substantial odds of a pandemic and a very strange time for politics, criminal records are being expunged, landmark cases are being heard and some of the last remaining sodomy laws are finally being axed from the books, one painstaking step at a time.
The only question is, why now?
Few people are more qualified to answer that than Matthew Strugar, a 42-year-old civil rights attorney, sodomy law expert and “one-time punk” who’s spent the last decade hacking away at laws like these in Idaho, Mississippi and beyond. He’s not found it easy — ever tried to hand-pick through California’s sex offender registry to find every living person convicted of consensual gay sex before 1975? — but he’s got motivation for miles. “I was so outraged to find that these laws are still being used that I made fighting them a sort of personal crusade,” he tells me. “I’m actually surprised more people aren’t mad about this.”
Strugar guesses that entire decades of social change, legislative shifts and rising queer visibility are at work when it comes to opening the door for sodomy law reform, but he also says an equally compelling question to address is why not now. Lawrence invalidated sodomy laws 17 years ago, so why won’t some states let these statutes die?
It’s a complicated issue that starts with an unsavory combination of ennui and homophobia. Getting a law or statute repealed is hard, and it’s even harder when crusading lawmakers demand their colleagues spend time and energy on a statute that’s already been deemed unconstitutional. Plus, Strugar says, most states with sodomy laws tend to believe they’re not being enforced homophobically anymore and that they’re “no longer hurting anyone.” From their point-of-view, why lift a finger to take them off the books when the much larger finger of Lawrence has all but snuffed them out?
“There’s just not a lot of legislative or political will to do that in most states,” he explains. “But even a lack of action is homophobic; these are historically anti-gay laws that are being used to punish people for crimes that already have other charges prosecutors can go after them with. There’s no reason for them to use sodomy laws. Their very existence is offensive to gay life.”
The alternative — leaving the laws on the books — is also extremely dangerous. As Strugar points out, prosecutors tend to use lingering sodomy laws to overwhelm defendants with bogus charges, a predatory move he says has no real purpose other than to make prosecutors look flashy. Of all the states with leftover sodomy laws, Louisiana arguably does this the most. There, police prosecutors can arbitrarily charge sex workers with a special statute called Crimes of Nature by Solicitation (CANS), an offense that’s almost identical to the lesser charge of prostitution, but carries a more severe penalty. Those charged with CANS face a felony conviction, a six-month sentence, a $500 fine and, prior to 2012, were automatically required to join the state’s sex offender registry (though that section of the law has since been removed).
According to the Center for Constitutional Rights (CCR), police and prosecutors can invoke CANS at will, without rhyme or reason as to why they choose it over prostitution. But a look at who’s being hit with it hints at what they’re getting at. As the CCR outlined in an article about a class-action case they filed against the state in 2012, almost 40 percent of sex offenders in Orleans Parish were on the registry as a result of CANS. Seventy-six percent of them were women, and 80 percent were Black.
Many, like 42-year-old Wendi Cooper, a program director at the incarcerated women’s advocacy group Operation Restoration, were also trans. In 1999, Cooper, then 21, had her first run-in with CANS when she stepped out into a muggy New Orleans evening on her way to meet some friends at a nearby club. She looked good that night, and she felt like it, too; wearing a matching blue-and-white striped skirt and top, she could practically feel the heads turn as she walked by. Feeling at-home in her femininity, she relished the attention, thinking nothing of the cars that slowed down to take in the view.
Inside one of those cars was a policeman. Keeping pace with her in his cruiser, he rolled down his window to reveal a handsome and friendly face. She was flattered when he opened the passenger door for her and invited her in. He was a cop; he seemed trustworthy. A few minutes of polite conversation passed before he started touching her and asking strange questions about oral and anal sex as he ran his hand across her knee. He brought up money, interested to know what she was selling. Confused — she wasn’t selling anything — she told him she wasn’t interested and turned to go. But instead of letting her leave, he pulled out his badge and placed her under arrest. “I didn’t even know what for,” Cooper tells me. “I was like, ‘Wait, what did I do wrong?’”
As she would later learn at her sentencing, she’d been charged with CANS. Admitting to having had oral or anal sex, both of which have been illegal in Louisiana since it adopted its criminal code in 1805, was all the probable cause the cop needed to make an arrest. Clocking her as trans as she walked to the club, he must have figured she’d be an easy target.
“If you go out walking while trans in Louisiana, you’re getting a crime against nature charge,” she says exhaustedly (she’s had to think about this every day for 20 years with little legislative change to lift her spirits). In 2001, she was arrested and charged for CANS a second time, again for simply talking about past sexual experiences with the wrong people. She had to pay a $1,000 fine, was sentenced to a year of probation, and, like Rustin, was required to register as a sex offender.
For 10 years, she carried around a driver’s license with the words SEX OFFENDER emblazoned below her photo in giant red letters. Even though she and eight other plaintiffs were removed from the registry in 2012 when the CCR lawsuit found the state’s registration requirement unconstitutional — and 900 more were removed once their case was used to axe the registration requirement for all CANS convicts — it didn’t take away the shame or embarrassment she felt about being forced to live as a criminal. “It took me years to stop seeing myself as ‘that person,’” she says, remembering how she’d had to subsume the identity, lifestyle and stigma of a felon simply because she existed as who she was. “For a long time, I had hatred in my heart for the people that did this to me. I really had to learn to forgive them before I could see things more clearly and move on with my life.”
Why states like Louisiana insist on enforcing laws like CANS isn’t totally clear, but Ritchie Eppink, the legal director of the ACLU Idaho, has a pretty clear guess. “It’s a shameful history of bigotry, exclusion and discrimination,” he says. “That history isn’t just a history that’s in the past, it’s a history that’s very much in the present.” Christian conservativism — the kind that “prays the gay away” — is also hard at work. As Cooper tells me, legislators in Louisiana are far more than willing to let innocent people suffer than they are to repeal their laws; to them, they symbolize their version of Christianity, and as she points out, they’re “not really interested in separating church and state.”
One way advocates of sodomy laws ensure that tradition continues is by spreading misinformation about all the “terrible things” that would happen if they were repealed. When legislators tried to repeal CANS in 2014, the Christian Louisiana Family Forum distributed a letter that falsely claimed the repeal would remove protections for children against sexual abuse and assault. That was entirely untrue — the bill would have left existing protections for children in place — but the strategy was effective: The House shot down the repeal bill, 66 to 27.
Louisiana’s misinformation campaign isn’t unique — Cooper says she’s heard a number of lawmakers clutch their pearls over whether a repeal could “increase STDs” — but it calls attention to another key reason that leftover sodomy laws have been so hard to kill. Some states intentionally entangle consensual sex with more serious crimes like bestiality, incest and sexual assault under the same statute, meaning they cannot easily repeal one crime without repealing the other. Thus, lawmakers can argue that they need sodomy laws on the books in order to prosecute the more heinous crimes.
In Idaho, for example, prosecutors can use the umbrella charge of “sodomy” to punish people for oral and anal sex — the law doesn’t differentiate between the the consensual and forcible kind — an offense that carries a minimum sentence of five years. Strugar says prosecutors would argue they’re not going after consensual sex — again, Lawrence — but here’s the problem: In Idaho, prosecutors don’t actually have to prove that there was a lack of consent to get a sodomy conviction. That means, in other words, there’s no real way to tell whether they’re preying on consensual sex or not.
Challenges to that law have been brought in the past, but according to Eppink, lawmakers have successfully shot them down on the grounds that they’re necessary for prosecuting forcible oral or anal sex, a type of sexual assault that Idaho legally separates from rape (which, according The Gem State, can only happen to a vagina). Meanwhile, Maryland had a hell of a time trying to repeal its sodomy law. As Luke Clippinger, a gay Democrat in Maryland’s House of Delegates tells me, doing so would have also repealed its prohibitions against bestiality, thereby creating a weird, legal gray area where sex with animals was neither legal or illegal.
Because of these entanglements, Strugar says some states like to argue that their sodomy laws are no longer the homophobic power tools they used to be; they’re simply, as he says in emphasized air quotes, “being used to punish the bad guys.”
This of course, is far from the case. Right now, in Idaho, Strugar, Eppink and a team of civil rights attorneys are representing a John Doe who was charged with sodomy for having oral sex with his wife in another state 20 years ago. When he moved to Idaho, he was forced to register as a sex offender, even though he never had to in the state where the “crime” was committed. “That’s just fucking crazy,” says Strugar, the disbelief audible in his voice. “I mean in Idaho, it’s a lifetime registration requirement.”
Of the 14 states still clinging to their sodomy laws, four still require those charged with sodomy to register as sex offenders, even if the offense occurred somewhere else. As both Rustin and Cooper discovered, the effects of this can be devastating. Sex offenders can’t take their kids to school or go to the beach without alerting authorities. They have to disclose their registration to neighbors, landlords, employers, schools, parks, community centers and churches. Their names, addresses and photographs appear on the internet for all to see, and it’s common for them to have trouble finding housing and jobs. They’re barred from some homeless shelters, cannot stay in the same emergency shelters as the general population in natural disasters and emergencies, aren’t allowed to drink or own a computer in some states and are often threatened and harassed, even by the people they’re closest to.
One woman Strugar represented — a grandmother in Mississippi — told him she was “humiliated” because her family constantly ridiculed her for being a “child molester,” though all she did was trade oral sex for drugs decades prior. “It was so fucking sad,” he remembers. “Just heartbreaking stuff. This absolutely ruins people’s lives. And for what?”
Whether registries are the right way to deal with sex offenders is up for debate, but to lump a husband and wife who went down on each other a couple of decades ago in with sex offenders isn’t only baffling, but probably illegal. Enter Strugar and Eppink’s lawsuit: Filed in the U.S. District Court in September, it argues that Idaho’s sodomy law is unconstitutional and that requiring Doe to register as a sex offender was a pointless and unjustifiable violation of his rights.
It’s unclear what the next steps would be if Doe prevails, but Eppink says the ultimate victory would be full repeal. If that’s not possible, his team will ask that Idaho’s legal code be amended to make it clear that its sodomy statute is unconstitutional. (Idaho Attorney General Lawrence Wasden, the lawsuit’s defendant, declined to comment.) A preliminary injunction hearing is scheduled for December 7th.
Across the country in the airy, marbled chambers of the Maryland House of Delegates, Clippinger got a taste of victory earlier this year. In February, he co-sponsored a bill to repeal the state’s 244-year-old sodomy law, an unfortunate vestige which criminalized oral and anal sex with up to 10 years in prison. Seeing it pass 133 votes to 5 was momentous — other legislators had tried to nix the law for years, but the cause never stuck. It wasn’t until last year — when they finally started untangling it from bestiality — that people finally started rolling up their sleeves.
Clippinger believes that queer visibility and acceptance had something to do with it, but the repeal also took place within a larger progression of gay- and trans-friendly legislation reform in Maryland. When he joined the House in 2010, the big LGBTQ+ issue on lawmakers’ desks was marriage equality, which passed in 2012. Next came expanded trans rights in 2014 through the state’s Fairness for All Marylanders Act, but while the state’s sodomy law was the next logical choice for the chopping block, it never felt like priority material. Again, it had already been invalidated by Lawrence — what was the big rush?
A report accompanying the repeal bill might have sped things along. According to the Baltimore Sun, more than 300 violations of Maryland’s sodomy law were logged in state courts in 2019, with 15 people being sentenced for it. The report doesn’t detail what the circumstances of these cases were so it’s difficult to know what aspect of “sodomy” they entailed, but as the Sun reported to the Washington Blade in February, the report “appears to contradict assertions by state officials in the past that the Maryland sodomy law was not being enforced except in a few rare instances.”
An ACLU Maryland statement regarding the report was also included with the bill. “While they may seem like antiquated laws that technically still exist but are not actually enforced, these laws have been frequently used to discriminate against the LGBTQ community,” it reads. “As long as Maryland’s law is on the books, it will continue to endanger LGBTQ people, and leave them vulnerable to employment discrimination, unfair attacks in child custody cases and being labeled as criminal. States across the country have been repealing their sodomy laws since 1961. It is time for Maryland to join them.”
And now, it has. “We reached a point where it didn’t make sense for us to keep it on the books one day longer,” he says. “It wasn’t the result of some gigantic effort or movement — we just got to a place where we felt like this is what needed to be done, so we did it.” The bill took effect on October 1, 2020, the first day since 1776 that its citizens could have hot, consensual, noncommercial oral or anal sex without violating Maryland law. Similar repeals have recently passed in Montana and Virginia.
Crucially, though, the fight doesn’t always end when a state repeals or invalidates its sodomy laws. Nashville-based constitutional litigator Daniel A. Horwitz discovered this in 2016 when a client contacted him for help expunging some minor misdemeanor charges off his record. After pulling it up, he noticed that the man had a 1995 conviction for “homosexual acts” under Tennessee’s defunct Homosexual Practices Act, a statute the state invalidated way back in 1996. Horwitz was “aghast” — what was a misdemeanor for consensual gay sex doing on the man’s record 20 years after the law had been quashed?
He offered to expunge the charge pro-bono, but he immediately ran into a catch: Under Tennessee law as it existed at the time, the charge wasn’t eligible to be expunged, and the only way for it to become so was to get the conviction vacated. Fortunately, with some creative lawyering and the help of Nashville District Attorney General Glenn Funk — a sympathetic Democrat who immediately recognized the injustice — he was able to get the charge removed.
Horwitz was elated, but he was just getting started. During his initial research, he’d uncovered 41 other people who were still living with unconstitutional convictions under the state’s bygone laws. When he brought this to Funk’s attention, Funk promptly offered to expunge their records if their only violation was sodomy proscribed by the Homosexual Practices Act.
Shortly thereafter, Horwitz hired a private investigator to help him track down as many affected people’s mailing addresses as possible, and has been steadily contacting people and helping them expunge their charges — pro-bono — ever since. So far, he’s made a decent dent in his list, but it’s been hard to reach them all; many have moved out of state, and a few have passed away. But he hopes that by the end of next year, he’ll have expunged all he can expunge. After that, he’ll start on Crimes Against Nature convictions, which he recently discovered functioned as a second arm of homophobic law in pre-Lawrence Tennessee. Funk, hopefully, will still be on board.
But while these cases, repeals and expungements are major developments for the people affected by them, Strugar’s not convinced they’re indicative of a larger movement to take down sodomy laws. From his point-of-view, things have only inched along since Lawrence, and there’s been little coordination between states, lawyers and advocates to mount the sort of united resistance they’d need to eliminate them once and for all. By his estimate, the recent spate of sodomy law challenges is more a function of politicians trying to shine up their own images than anything else — it looks better when their politics sync up with public sentiment, and breaking a sweat trying to make a sex offender out of an orally inclined husband doesn’t vibe well with their thirst for appeal.
Circling back to Louisiana, it’s easy to understand Strugar’s skepticism. Although the state’s Crimes Against Nature laws have been rewritten several times, Cooper says lawmakers have been extremely hesitant to erase them, and it’s been difficult for the state’s more sympathetic ones to even bring the issue up. “It just seems like these legislators will say and do anything to keep that law alive,” she says, explaining that Louisiana recently added incest to its CAN statute to make it even harder to repeal.
Every now and then, a representative tries to bring the issue up in the House again, but Cooper’s tired of waiting for a broken system to fix itself. Recently, she founded CANsCan’tSTAND, a campaign to educate Louisianans about crimes against nature laws and push for their repeal, and she’s been holding panels, hosting symposiums and organizing marches to get the word out ever since. Last year, she headed a symposium where local lawmakers talked about their efforts to repeal the law and a panel of Black trans women who were living with sodomy convictions spoke about what it’s like to live with that kind of burden weighing them down. Afterward, she led a march through the streets of New Orleans, which hundreds of people turned up to join. Cooper says most of them were stunned to learn that the healthy, normal and private bedroom “activities” they engaged in with their husbands and wives were punishable crimes. One woman — a friend of Cooper’s — thought it was so bizarre that she had to take a walk down the block to stop laughing.
Back in New York, Naegle doesn’t pay much attention to efforts like these anymore. He still lives in the Chelsea apartment Rustin moved into in 1962 — the same one where he held after-hours meetings with the March on Washington staff and spent the final years of his life. The apartment was put on the National Historic Register in 2016, and there’s a plaque on the grounds recognizing Rustin’s accomplishments.
Rustin died in 1987, but in many ways, he’s just as present as he ever was. If Naegle wants to see him, he can pull up a film clip. If he wants to hear his voice, he can throw on one of the albums Rustin recorded over the years. There are newspaper clippings to read; silent movies to watch. “It’s nice to have the person I remember come alive again in that form,” he says. “It can be difficult emotionally, sometimes, but I won’t forget him. I can’t.”
Lately, he’s been fielding lots of calls from journalists, filmmakers and playwrights who’ve become captivated with Rustin’s impact in the wake of this year’s explosive racial justice movement. BLM named him as one of their inspirations — Naegle thinks that this, along with the movement to put him on a postage stamp, was how Rustin wound up on Newsom’s pardoning radar.
As it turned out, it wasn’t just Rustin’s name Newsom was trying to clear. The same day he announced his pardon, he approved a pathway to clemency for “those who were persecuted in California for being gay” before it repealed its sodomy law in 1975. So far, however, few people seem to know they have that option — as Al Jazeera reported in September, the governor’s office hadn’t received any applications for clemency before the state’s shelter-in-place order began in March. His office didn’t respond to a request for comment either, so it’s hard to know how many people, if any, have been pardoned.
Still, Naegle remains hopeful that others will have the same opportunity Rustin did. After all, to lift the burden of a conviction brought on only by the expression of love and desire is to acknowledge, at least symbolically, that those feelings are not only okay, but fundamentally equal. “If Bayard’s name was helpful in that way,” Naegle says. “All for the good.”