Gay History – July 28, 1961: Illinois Becomes First State to Rescind Sodomy Law Possibly By Mistake
In 1955, the Illinois General Assembly inaugurated the gargantuan task of overhauling its criminal code. Since its last major revision in 1874, the code had accumulated a patchwork of conflicting and confusing statues, some of which made no sense in the 20th century. Horse thieves, for example, were punished with a minimum penalty of three years in prison, but the maximum penalty for auto theft was only one year.
Over the ensuing six years, an eighteen-member joint committee of the Chicago and Illinois Bar Associations combed through the 148 chapters and 832 sections of the old statute books, using the American Law Institute’s 1956 Model Penal Code as a guide. The ALI had put together its Model Penal Code because a number of states were planning to revise their criminal codes over the next decade, and the 1956 Model Code recommended the elimination of all prohibitions against consensual sexual activity between consenting adults, including those which criminalized homosexual activity and relationships. Because the Model Penal Code also touched on a plethora of other criminal statues, it’s likely that most Illinois lawmakers didn’t realize that they were repealing their anti-sodomy law by adopting the omnibus legislation. Nevertheless, the code was adopted and signed into law by Gov. Otto Kerner on July 28th, 1961, and the anti-sodomy law’s repeal became effective on January 1, 1962.
That didn’t mean however that eliminating the state’s anti-sodomy law was entirely by mistake. A booklet describing the new code prepared for Chicago Police by Claude R. Sowele, assistant professor at Northwestern University’s law school, commented, “The Law should not be cluttered with matters of morality so long as they do not endanger the community. Morality should be left to the church, community and the individual’s own conscience.” While Illinois became the first state to legalize consensual adult same-sex relationships, the change in the state’s criminal code had few practical benefits for the state’s LGBT population, as police raids and harassment on other pretexts (or no pretext) would continue without letup for another two decades.
Illinois would remain the only state in the union to legalize consensual adult same-sex relationships until 1971, when Connecticut would finally rescind its sodomy law, followed by Colorado and Oregon (1972), Hawaii and North Dakota (1973), Ohio (1974), New Hampshire and New Mexico (1975). The big year was 1976, when California, Indiana, Maine, Washington and West Virginia stopped criminalizing homosexuality. By the time Lawrence v. Texas struck down all sodomy laws nationwide in 2003, thirty-six states, the District of Columbia and Puerto Rico had eliminated their anti-homosexuality laws, either by legislative action or by state court decisions.