A snowy day at the Massachusetts State House, January 16, 2024. (Photo Credit: Massachusetts State Senate)
BOSTON | The Massachusetts state senate unanimously passed a bill Jan. 18 to repeal several archaic criminal laws that were still on the books, including the state’s sodomy law and a law critics have dubbed the “walking while trans” law. The bill now heads to the state House, where it is expected to pass.
“I’m just really happy that it passed. And I hope that it will pass seamlessly in the house. There’s absolutely no reason for it not to pass,” says Tanya Neslusan, executive director of Mass Equality, a leading statewide LGBTQ advocacy group.
Despite long being considered a leader in passing progressive legislation for LGBTQ rights, Massachusetts is one of 12 states that still have laws banning gay sex in its criminal statutes. Massachusetts General Law Chapter 272, Sections 34-35 criminalize “the abominable and detestable crime against nature” and “unnatural and lascivious acts with another person.”
Both laws have been limited by a series of Massachusetts Supreme Judicial Court rulings between 1974 and 2002 that held that they could not be used against people committing consensual acts in private, but the laws have never been repealed or amended to reflect that change.
Bill S.2551 passed by the Senate repeals the “crime against nature” statute entirely and limits the “unnatural and lascivious acts” statute to acts done “in public with the intent of public exposure.”
It also amends Section 53, which criminalizes certain types of behaviors in public, by removing a reference to “common night walkers, common street walkers, both male and female,” which some activists have said has been used to harass trans people committing no actual offence other than being out in public.
“That’s something that hits the queer community. It’s something easy to target when somebody is not creating a disturbance, but they are visibly queer or trans, and you can label them a ‘common night walker,’” Neslusan says. “It’s also really stigmatizing language when you refer to somebody as a ‘common night walker.’”
During debate, Senators also added a provision to the bill that repeals Section 36, which makes “blasphemy” a crime punishable by up to a year in jail or a fine of $300.
Versions of the bill have been proposed several times over the years, but none has made it this far in the legislative process. The bill was introduced during last year’s session, where it was studied and passed by the Joint Committee on the Judiciary and the Joint Committee on Rules. Earlier this week it was reported out of the Senate Ways and Means Committee.
In 2003, the US Supreme Court struck down all remaining state sodomy laws as unconstitutional, but they also remain on the books in Florida, Georgia, Kansas, Kentucky, Louisiana, Michigan, Mississippi, North Carolina, Oklahoma, South Carolina, and Texas. Maryland and Minnesota repealed their sodomy laws last year. A bill to partially repeal Michigan’s sodomy law has been proposed by state Democrats.
There has been a push to repeal sodomy laws and enshrine LGBT rights in legislation since the Supreme Court’s 2022 Dobbs decision, which overturned the right to seek an abortion. In a concurring opinion, Justice Thomas argued the Court should also overturn previous decisions decriminalizing sodomy and legalizing same-sex marriage.
“With the Dobbs decision, all of those privacy decisions came into question,” Neslusan says.
Although Democrats hold a commanding 135-24 majority in the state House, Mass Equality says it cannot take for granted that the bill will pass, especially since the state has failed to pass previous iterations of the bill in the past.
“I would hope that it will go through without any challenge. I would like to think that’s the world in which we live. But I’m not going to take it for granted that we’re going to have a unanimous vote to move forward for that,” Neslusan says.
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