I’m pleased to report some progress on repealing archaic anti-LGBTQ+ laws. Below, you can view my personal floor speech on the bill or read the full Senate press release. As background, see also this 2018 post about our repeal of archaic laws against choice, contraception, and adult sex.
SENATE ACTS TO MODERNIZE MASSACHUSETTS LAWS, REPEAL ANTI-LGBTQIA+ STATUTES
Bill would strike discriminatory laws, establish a permanent commission to recommend outdated legislation for repeal
(BOSTON–1/18/2024) Today, the Massachusetts Senate unanimously passed legislation to modernize the Commonwealth’s laws and strike outdated and non-inclusive statutes that are discriminatory against LGBTQ+ individuals in the state.
S.2551—An Act relative to archaic laws—would remove archaic laws that intrude on an individual’s privacy regarding sexual activity. The bill would remove existing statutes that criminalize sodomy and so-called ‘unnatural’ acts between consenting adults and make Massachusetts laws more inclusive of individuals who are LGBTQIA+. Terms struck include terminology such as sodomy, “unnatural or lascivious” sex acts, and “common nightwalkers”. In some cases, the language that this bill would strike from the General Laws dates back into the 1800s.
Additionally, the bill would establish a permanent law revision commission to examine common law, statutes and judicial decisions to identify anachronisms in the law and recommend needed reforms; receive and consider proposed changes; recommend changes in the law to align with modern conditions; and make recommendations to improve the openness and accessibility of state laws.
“Fewer things give me greater pride than leading a Senate that has spent years at the forefront of LGBTQ+ rights, and living in a Commonwealth where we proudly embrace every individual for who they are,” Senate President Karen E. Spilka (D-Ashland). “But while our values have changed for the better, sometimes the letter of the law has not. I am tremendously grateful for Senator Brownsberger’s diligent and painstaking work to ensure that our laws reflect the inclusive values of Massachusetts as we live them today, and creating a mechanism for removing laws that are no longer acceptable or relevant. I extend my sincere thanks to Chair Rodrigues and Chair Eldridge for their support through the committee process.
“This bill sends a message that Massachusetts is a place that cares about the freedom of individuals,” said Senator Willian N. Brownsberger (D-Belmont), President Pro Tempore of the Senate. “I look forward to working with my House colleagues to get this on the Governor’s desk.”
“It’s highly important to have our existing laws and language contained therein reflect the current times we live in. The creation of a permanent law review commission will go a long way towards abolishing archaic laws from the Massachusetts General Laws,” said Senator Michael J. Rodrigues (D-Westport) Chair of the Senate Committee on Ways and Means.
“The commission created by this bill is essential as we continue to make progress on key policy areas and see the law change over time here in Massachusetts,” said Senator James B. Eldridge, Senate Chair of the Joint Committee on the Judiciary. “This bill will repeal laws that are outdated and negatively affect the LGBTQ+ community, and I look forward to the proposals that will come from this committee as they ensure our laws are clear of contradictions, are constitutional, and ensure all of our rights are upheld.”
“Repealing homophobic and transphobic language in state law helps to build a safer and more inclusive Commonwealth,” said Senator Julian Cyr (D-Truro). “In Massachusetts, we take pride in being a welcoming state, and our laws must reflect our values. The archaic and discriminatory language found in Chapter 272 of the General Laws dates back to 1887 and historically was deployed to criminalize LGBTQ+ people. By removing harmful, homophobic, and transphobic language from our statutes, we ensure the letter of the law promotes equity and justice for all.”
Many of the laws addressed have not been enforced for many years due to superseding state and national law, court rulings, and Massachusetts’ decades-long transformation into a Commonwealth that welcomes all individuals regardless of sexual orientation or gender identity. The bill’s passage comes nearly a year and a half after the Supreme Court’s decision in Dobbs v. Jackson, in which Associate Justice Clarence Thomas suggested, in a concurring opinion, that the Court could revisit case law banning the criminal prosecution of sodomy.
The bill won praise from LGBTQ+ advocates around the Commonwealth.
“We are relieved and excited to see this legislation pass,” said Tanya V. Neslusan, Executive Director of MassEquality. “The Commonwealth prides itself on being a progressive, inclusive state and in that spirit, having the outdated legislation outlawing sodomy and referring to adult sexual activities as ‘unnatural acts’ stricken from our books makes Massachusetts a safer, more inclusive place for all of our residents and visitors, especially those who are a part of the LGBTQ+ community.”
During the debate, the Senate adopted an amendment from Senator Becca Rausch (D-Needham) striking a law banning blasphemy. Today’s passage marks the second consecutive session in which the Senate has acted to modernize the Commonwealth’s laws to make them more inclusive.
Having been passed by the Senate, the legislation now moves to the Massachusetts House of Representatives for consideration.
Text of senate-approved legislation
Senate Bill 2561, An Act relative to archaic laws (you can see text and follow future action at this link).
Resources pertaining to original sodomy law to be repealed
Current Statute: Chapter 272, Section 34
Whoever commits the abominable and detestable crime against nature, either with mankind or with a beast, shall be punished by imprisonment in the state prison for not more than twenty years.G.L. c. 272, s.34
Massachusetts Body of Liberties from 1641 — Criminal Code Section
1. If any man after legall conviction shall have or worship any other god, but the lord god, he shall be put to death. dut. 13.6.10, dut. 17.2.6, ex. 22.20
2. If any man or woeman be a witch, (that is hath or consulteth with a familiar spirit,) They shall be put to death. ex. 22.18, lev. 20.27, dut. 18.10
3. If any person shall Blaspheme the name of God, the father, Sonne, or Holie ghost, with direct expresse, presumptuous or high handed blasphemie, or shall curse god in the like manner, he shall be put to death. lev. 24.15.16
4. If any person committ any wilfull murther, which is manslaughter, committed upon premeditated mallice, hatred, or Crueltie, not in a mans necessarie and just defence, nor by meere casualtie against his will, he shall be put to death. ex. 21.12, numb. 35.13.14, 30.31
5. If any person slayeth an other suddainely in his anger or Crueltie of passion, he shall be put to death. numb. 25.20.21, lev. 24.17
6. If any person shall slay an other through guile, either by poysoning or other such divelish practice, he shall be put to death. ex. 21.14
7. If any man or woman shall lye with any beast or brute creature by Carnall Copulation, They shall surely be put to death. And the beast shall be slaine and buried and not eaten. lev. 19.23
8. If any man lyeth with mankinde as he lyeth with a woeman, both of them have committed abhomination, they both shall surely be put to death. lev. 19.22
9. If any person committeth Adultery with a married or espoused wife, the Adulterer and Adulteresse shall surely be put to death. ex. 20.14
10. If any man stealeth a man or mankinde, he shall surely be put to death. ex. 21.16
11. If any man rise up by false witnes, wittingly and of purpose to take away any man’s life, he shall be put to death. dut. 19.16, 18. 19
12. If any man shall conspire and attempt any invation, insurrection, or publique rebellion against our commonwealth, or shall indeavour to surprize any Towne or Townes, fort or forts therein, or shall treacherously and perfediouslie attempt the alteration and subversion of our frame of politie or Government fundamentallie, he shall be put to death.Massachusetts 1641 Body of Liberties — scan for “94” to get to this criminal code.
Notes on historical antecedents of Chapter 272, Section 34.
Supreme Court precedent limiting enforcement of Chapter 272, Sections 34 and 35
Resources pertaining to Victorian era sodomy law to be repealed
Current statute: Chapter 272, Section 35
Whoever commits any unnatural and lascivious act with another person shall be punished by a fine of not less than one hundred nor more than one thousand dollars or by imprisonment in the state prison for not more than five years or in jail or the house of correction for not more than two and one half years.G.L. c. 272, s.35
Notes on historical antecedents of Chapter 272, Section 35.
District Court Model Jury Instructions Pertaining to Chapter 272, Section 35
Resources pertaining to “nightwalker” law to be repealed
Current statute: Chapter 272, Section 53 (highlighted language only to be repealed)
Section 53. (a) Common night walkers, common street walkers, both male and female, persons who with offensive and disorderly acts or language accost or annoy another person, lewd, wanton and lascivious persons in speech or behavior, keepers of noisy and disorderly houses, and persons guilty of indecent exposure shall be punished by imprisonment in a jail or house of correction for not more than 6 months, or by a fine of not more than $200, or by both such fine and imprisonment.G.L. c. 272, section 53 (language to repealed highlighted)