Duane Hoffmann / MSNBC
By msnbc.com contributor
msnbc.com contributor
updated 12/14/2004 5:55:19 PM ET 2004-12-14T22:55:19

News of the illness of Supreme Court Chief Justice William Rehnquist has raised the issue of how President George Bush might change the Supreme Court. What does this have to do with sex?

Well, when it comes to sexual expression, a lot of people say, “There oughta be a law!” And politically powerful crusaders are already salivating over the possibilities. Concerned Women for America (CWA), for example, said last year that anal sex ought to be banned: “If we were really compassionate, we would be putting sodomy laws back on the books, not removing them.”

In fact, according to a search of state criminal code databases, there are already laws, lots of laws, regulating even private sexual expression. You might find some of them surprising.

Occasionally, the surprises stem from the legislative zeal to be thorough. In Texas, for example, “public lewdness” is against the law. No surprise there. But you can commit public lewdness even in private if you are “reckless about whether another is present who will be offended or alarmed” by, among other things, an “act involving contact between the person’s mouth or genitals and the anus or genitals of an animal or fowl.” Apparently, as long as nobody’s offended or alarmed, Rhode Island Red better watch out. 

What's indecent?
States also have a wide variety of definitions for such things as public indecency. In Indiana, for example, you might be indecent if your male genitals are completely covered but “in a discernibly turgid state.”

As a former adolescent male, this worries me.

If you’re traveling with a lover, and you are not married to each other, but feeling in the mood, you’d better not rent a hotel room in North Carolina because "any man and woman found occupying the same bedroom in any hotel, public inn, or boardinghouse for any immoral purpose...shall be guilty of a Class 2 misdemeanor.”

Video: Sex laws Sex under those circumstances would absolutely be “immoral” because, like many other states, North Carolina has laws against fornication whether you are in a hotel or just at home: “If any man and woman not being married to each other, shall lewdly and lasciviously associate, bed, and cohabit together, they shall be guilty of a Class 2 misdemeanor.”

In Idaho, fornication can get you a $300 fine and six months in jail. But that’s a piece of cake compared to the penalty for adultery -- up to a $1,000 fine and three years in the state pen.

If you’re a man in Oklahoma, and you tell a virgin female you want to marry her, then you two commit fornication, you had better not change your mind about the marriage, Bub, or else you’ve committed a felony. You could go to jail for five years. Luckily, if you change your mind back again, and make an honest woman of her, all is forgiven.

Idaho, Indiana, North Carolina, Oklahoma and Texas are all conservative “red states.” Massachusetts, on the other hand, is the ultimate “blue state,” the state Bush accused of being full of “liberals” as if the state were a breeding ground for godless subversives. But it’s got some doozy sex laws. Adultery could get you three years in state prison. Sell a dildo, do five years. (I’ve previously mentioned anti-vibrator laws in Texas .) The state even has a catch-all statute for any “unnatural and lascivious act with another person.” The law doesn’t say just what is unnatural or lascivious.

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Maryland appears to outlaw just about everything except the missionary position between married men and women. The law prescribes 10 years for “any unnatural or perverted sexual practice” like, say, oral sex. Not only that, but, says the law, the state can indict you without naming the particular act it’s accusing you of committing or even the manner in which you committed it.

Tough to enforce
For someone like me, who considers himself as law-abiding as any other good citizen, it feels strange to know I have committed felonies in several states, misdemeanors in many others, and that my accumulated jail time under laws I found in the databases is about 250 years.

Lucky for me, most of these laws are rarely, if ever, enforced. For one thing enforcement just isn’t practical. Not only do the acts usually happen in private, but enforcing the laws would make the United States one vast prison.

As of June 2003, there is also a very real legal reason why the laws are not enforced. A Texas statute says: “A person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex.” (Some other states with such anti-sodomy laws can’t bear to name the act. Instead, they use phrases like “the detestable and abominable crime against nature.”) When police arrested two gay men having sex in their own home, the men fought the case all the way to the Supreme Court -- which is what got the CWA and other sex prohibitionists all riled up.

The resulting decision, Lawrence v. Texas, struck down the law. At the time, the ruling was considered a major victory for gay rights, but it also means states are, for now, very limited in how they can restrict private sexual behavior between consenting adults, gay or not.

The laws, though, are still on the books, lurking like land mines left over from a war. Why? Well, few legislators are willing to propose repealing them because nobody wants to be seen as “approving” of fornication or adultery or, my goodness, anal sex. Besides, there’s no powerful rubberist lobby, or a rich PAC called Married People for Sodomy. But as the new legislative director for CWA has said, “You just don’t mess with the conservative right!”

When Arizona decided to repeal some of its archaic sex laws in 2001, one crusading legislator struck back by proposing a law revoking the teaching credentials of any educator found to be a fornicator or to have committed “crimes against nature” like oral sex or anal sex. The governor received thousands of e-mails, most insisting the laws stay. She signed the repeal anyway.

Would-be regulators of sexual expression realize that the Lawrence decision could be reversed, giving those old, unenforced laws new teeth. Justice Antonin Scalia, who voted with the minority in Lawrence, wrote a scathing dissent which made it clear he favored the ability of states to forbid sexual expression they deemed immoral whether the proscribed behavior takes place in private or not. Chief Justice Rehnquist and Justice Clarence Thomas voted with Scalia. 

Bush has said that Thomas and Scalia are his favorites on the court. It’s possible that the president will name up to three new justices during his second term. That new court may very well decide that your sex life is the government’s business after all.

Brian Alexander is a California-based writer who covers sex, relationships and health. He is a contributing editor at Glamour and the author of "Rapture: How Biotech Became the New Religion" (Basic Books, 2003).

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