Sodomy, adultery bans latest ‘zombie’ laws under scrutiny in Michigan

• Michigan House panel advances legislation to repeal unconstitutional sodomy ban from state law
• Senate committee considering similar legislation to remove criminal penalties for adultery, co-habitation by divorced couples  
• Bills are latest efforts to remove “zombie” laws from the books in Michigan, where Democrats lose state House majority at year’s end

LANSING — Old Michigan laws criminalizing sodomy, adultery and other consensual sex acts could be on the chopping block before state lawmakers break for the year.

Though the statute is considered unconstitutional and no longer enforced, Michigan’s criminal code currently defines sodomy as an “abominable and detestable crime against nature” and classifies it as a felony punishable by up to 15 years in prison. 

It’s among the latest so-called “zombie” laws Democrats are working to strike from state law while they still have control of both legislative chambers.

The sodomy ban was primarily used to prosecute men who had sex with other men, but also applied to any form of oral or anal sex, including between heterosexual couples, state Rep. Noah Arbit, D-West Bloomfield, told the House Criminal Justice Committee Tuesday. 

"I would guess that 99% of adult Michiganders are guilty of this crime," he said.

Related:

• Good news, lascivious lovebirds: Michigan dumps ban on unwed cohabitation
• Old Michigan laws: seduction, cursing, train drunkenness bans still on books

A three-bill package sponsored by Arbit and other House Democrats is the latest effort to overturn the ban. It was approved by the House panel despite opposition from Republican Reps. Bob Bezotte of Howell and Brian Begole of Antrim Township but still needs floor votes and a signature from Gov. Gretchen Whitmer to become law.

Later Tuesday, a Senate panel unanimously advanced separate bills to remove criminal penalties for adultery and co-habitation by divorced couples to the Senate floor for further review.

Sponsoring Sen. Jeff Irwin, D-Ann Arbor, and other supporters of the change said a law subjecting cheating spouses to possible felony charges hasn’t been enforced for decades and is no longer relevant, especially since Michigan adopted no-fault divorce laws in 1972. The state of New York recently approved similar legislation.

Kyle Zawacki, legislative director of the ACLU of Michigan, called the adultery ban a “relic of a bygone era” that “perpetuates stigma and discrimination” and undermines government transparency by clogging up the state’s penal code with unenforced crimes.

“Support of this package is by no means endorsement of adultery, but rather support for cleaning up outdated, unenforced statutes,” Zawacki told lawmakers.

Though the sodomy law was rendered obsolete by federal court decisions, Arbit and other repeal advocates say the statute could leave LGBTQ couples vulnerable to prosecution in the event the U.S. Supreme Court reconsiders existing precedent.

Supreme Court Justice Clarence Thomas expressed an interest in doing so in a 2022 concurrent opinion included in the court’s decision to overturn federal abortion protections previously outlined in Roe v. Wade. 

In that opinion, Thomas called on the court to revisit Obergefell v. Hodges, the 2015 decision that guaranteed marriage rights to same-sex couples, Griswold v. Connecticut, a 1965 case that preserved rights for married couples to buy contraceptives, and Lawrence v. Texas, a 2003 case that struck down sodomy bans as unconstitutional. 

“It is imperative that Michigan does not have a criminal ban on the books that could be used to target and criminalize people across Michigan,” Arbit said.

Arbit also argued the proposed change would help protect LGBTQ residents from opposition closer to home, referencing a recent social media post from state Rep. Josh Schriver, R-Oxford, who on Monday wrote that he wants to “make gay marriage illegal again.” 

Schriver claimed his position was “not remotely controversial, nor extreme” and in a subsequent post called the Supreme Court ruling that legalized same-sex marriage “perverted.” 

After Democrats won state House and Senate majorities in 2022, Whitmer and legislative allies made quick work of repealing Michigan’s long-dormant abortion ban and other criminal penalties related to abortion access, as well as a ban on unmarried cohabitation. 

Now, they’re running out of time. Republicans took back majority control of the state House in November, meaning Democrats only have a few weeks left to wrap up any remaining priorities in the lame-duck session.