The U.S. Supreme Court ruled against these anti-sodomy laws in 2003 for violating the due process clause and individual rights — but they remain on the books.
“Court rulings can prevent enforcement of a statue, but it doesn’t wipe the statute off the books,” said Maxine Eichner, a UNC law professor. “For this statute to be wiped off the books, it has to be repealed by the legislature, and they sometimes repeal outdated laws, but certainly not always.”
She said these types of forgotten statutes can create uncertainty over their legal effect.
This uncertainty has recently surfaced in Michigan, where the state senate passed a bill including an existing provision that criminalizes sodomy.
“If you look at what’s happening in Michigan, I think it’s absolutely shameful that people are still pushing this type of discriminatory and unconstitutional discrimination in 2016,” said Mike Meno, spokesperson for American Civil Liberties Union of North Carolina.
The legalization of same-sex marriage in all 50 states has caused a backlash to LGBT equality, he said.
“I think it’s clear that the freedom to marry is here to stay across the country, and opponents of equality have looked at ways to carve out exceptions to laws that give equal rights to LGBT Americans,” Meno said.
Chris Sgro, executive director of Equality NC — an LGBT advocacy organization in North Carolina — said he would be surprised if the Michigan Senate bill becomes law.
“I understand that it was originally intended to prevent bestiality but went way beyond that and prohibited oral and anal sex between consenting adults, straight or gay,” he said.
Sgro said he does not believe other states have a similar appetite for adopting anti-sodomy laws.
“We have our own challenges here, but leaning to that particular piece of legislation, Michigan and their legislature have gone ahead and jumped off the deep end,” he said.
But North Carolina can still improve its protections for the LGBT community — which do not currently include statewide nondiscrimination policies — Sgro said.
“The fight didn’t end with marriage equality,” he said. “We still lack protections against discrimination in employment and housing and access to public accommodations — those are all measures a majority of North Carolinians and a majority of Americans agree should already be in place, and unfortunately, they are not.”
Amira Hasenbush, a Jim Kepner Law and Policy Fellow at the Williams Institute — a research center that focuses on sexual orientation and gender identity law and policy — said nondiscrimination laws that include the LGBT community tend to be less available in the South.
“Generally speaking, you do find that there is less legal protection for LGBT people in the South, Midwest and the mountain states,” she said. “And you see that also reflected in these sodomy laws still being on the books in these similar states.”
Many North Carolinians falsely assume protections are in place for the LGBT community, Sgro said.
“It’s pretty common sense to people that you shouldn’t be able to fire somebody just because they’re gay,” he said. “You shouldn’t be able to refuse somebody housing just because they’re gay.”
More legal action is required for complete equality in the state, Sgro said.
“This particular General Assembly needs to focus more on those protections — they’re the right thing to do,” he said. “I think we can see more from this General Assembly to pass those protections.”