With LGTBQ rights in the spotlight, Senate advances bill to repeal archaic state laws that ban sodomy, ‘unnatural’ sex acts

LGBTQ Families and advocates kicked off Pride Month, in the rain, at the Massachusetts State House.Suzanne Kreiter/Globe Staff

The Massachusetts Senate Thursday voted to advance a bill that would repeal archaic anti-sodomy laws among other bygone statutes, a move that lawmakers say is necessary in the wake of the Supreme Court overturning the landmark 1973 Roe v. Wade decision, which advocates fear could pave the way for the court to eliminate other privacy protections.

The unanimous vote follows last week’s Supreme Court ruling that allows states to prohibit abortion for the first time in 49 years and also comes as Massachusetts celebrates the last day of LGBTQ Pride month.

In a separate concurring opinion to last week’s decision, Supreme Court Justice Clarence Thomas called into question several other rulings made by the high court, including Obergefell v. Hodges, which established the right of same-sex couples to marry, and Lawrence v. Texas, in which the court ruled against a Texas law criminalizing the act of sodomy.

With the Supreme Court stripping away precedent and subsequently, the right to privacy, archaic laws on the books in Massachusetts are more relevant than ever, bill sponsors said.

“In my America, there is a personal space the government has no business in. These laws intrude into people’s personal space and they shouldn’t be on the books. The Supreme Court, for a while, has agreed with that. But lately, we are not sure where they are going,” said state Senator William N. Brownsberger, the bill’s author. “There are LGTBQ people who say this is important, who say that the shadows of [the old laws] are threatening.”

The Boston Democrat’s bill would repeal laws that ban sodomy, “unnatural or lascivious” sex acts, and being “a common nightwalker,” a status crime critics say police use to target law-abiding transgender people. The bill also creates a review commission to actively engage in updating Massachusetts’ laws, which include a litany of other outdated measures.

“There is quite a bit of stuff on the books that is either really offensive to current views or is just outdated and no longer in use and we should get rid of it,” Brownsberger said.

Several archaic laws were repealed in 2018 in legislation called the Act Negating Archaic Statutes Targeting Young Women, or “NASTY Women Act,” which reversed a 19th-century ban on abortion, a ban on contraception for unmarried couples, and a requirement that non-emergency abortions be performed in a hospital.

State Representative Jay Livingstone, who is steering the archaic laws bill in the House, said he is concerned that with “the Supreme Court rolling back so much precedent, these laws may became enforceable again.” The new archaic laws commission will be key, he said, to bulletproofing current state law.

Livingstone’s chamber will take up the bill next. If the legislation passes the House, the bill will go to Governor Charlie Baker’s desk.

“It’s more important than ever that we clean up the books in Massachusetts,” said Livingstone, a Back Bay Democrat. “A commission is going to be more important than ever to really dive into what’s on the statutory books and make sure that our code reflects our current values.”

Ben Klein, a senior attorney and AIDS Law Project Director at GLAD, said the repeal effort represents more than just a clean-up of the state’s old laws. The bills represent a real effort to undo decades of stigmatization of gay sex that for years has worked to devalue the LGTBQ community in society.

“Historically, those words are seared in the memories and consciousness of generations of LGTBQ people,” Klein said. “Their removal really signals that Massachusetts is reemphasizing its affirmation of LGTBQ people at this very challenging time in history.”

In a statement after last week’s high court ruling, a coalition of LGBTQ leaders said the work needs to continue to “ensure Massachusetts is a place where everyone has the equal protection of our laws and can make informed decisions about our families, our bodies, and our lives.”

Among the signers was Michael Cox, the executive director of Black and Pink Massachusetts.

“The State House is taking action in light of Roe v. Wade to affirm to the residents of Massachusetts that Massachusetts will not tolerate what the Supreme Court is suggesting would be acceptable,” Cox told the Globe. “That includes bodily autonomy and privacy, whether this is abortion, health care access, or common nightwalking or sodomy statutes.”

Arline Isaacson, a longtime LGTBQ advocate and lobbyist for the Massachusetts LGBTQ Political Caucus, spoke in support of the bill when it came before the joint judiciary committee last July. She said some of the legal prohibitions the bill seeks to overturn are “deeply offensive” to many in the LGBTQ community.

“Of course, the original intent of this some of this language was very specifically to segregate out and condemn LGBTQ people by calling our forms of intimacy unnatural or lewd or lascivious,” she said. “Of course, this became the basis to justify arresting us and jailing LGBTQs for decades or centuries.”