The United States Constitution: Fundamental Choice Arguments

Robert Wintemute

in Sexual Orientation and Human Rights

Published in print July 1993 | ISBN: 9780198264880
Published online March 2012 | e-ISBN: 9780191682841 | DOI:

Series: Sexual Orientation and Human Rights

The United States Constitution: Fundamental Choice Arguments

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In 1960, so-called ‘sodomy’ laws prohibited all oral or anal intercourse, between men, between women, or between a man and a woman, in fifty states in the US and the District of Columbia. The first state to decriminalise oral or anal intercourse was Illinois in 1961, followed by Connecticut in 1969, and twenty more states in the 1970s. After Wisconsin in 1983, the slow, difficult, state-by-state process of legislative reform ground to a halt, and no legislature repealed an anal or oral intercourse law until Nevada and the District of Columbia did so in 1993. In an attempt to accelerate the process, gays, lesbians, and bisexuals turned to the United States Constitution. If the Supreme Court could be persuaded to interpret it as prohibiting the criminalisation of oral or anal intercourse, it might be possible to have all remaining oral or anal intercourse laws struck down with a single constitutional blow. This chapter considers how fundamental choice arguments have been used under the US Constitution in challenging both oral or anal intercourse laws and other kinds of sexual orientation discrimination.

Keywords: United States; constitution; sodomy laws; anal intercourse; oral intercourse; gays; criminalisation; fundamental choice; sexual orientation; sexual orientation discrimination

Chapter.  21968 words. 

Subjects: Human Rights and Immigration

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