No, the Michigan legislature did not just vote to make oral and anal sex illegal

A sweeping new Michigan law meant to prevent animal cruelty has gone viral because it looks like it could lead to prison sentences for adults who have consensual anal sex.

But despite scandalous headlines — "Michigan Republicans Pass Bill That Would Put Gay AND Straight Couples in Prison," wrote AddictingInfo in one of the posts that started the trend — it's extraordinarily unlikely that anyone, gay or straight, will ever be prosecuted in Michigan for having sex.

What happened, as the website the New Civil Rights Movement reported, is that Michigan lawmakers amended the state's penal code to add new restrictions on animal abusers without removing an outdated, invalidated ban on sodomy.

Thirteen years after the Supreme Court ruled bans on sodomy were unconstitutional, Michigan is one of 12 states that still has the law on its books.

But while lawmakers passed up a prime opportunity to get rid of a ban that's both discriminatory and irrelevant, there's no evidence lawmakers really intended to reaffirm the sodomy prohibition, let alone prosecute anyone for sexual activity. And some reports suggest the legislature will use the ensuing outcry as a reason to remove it after all.

The Michigan legislature was trying to crack down on animal abuse

Shutterstock

In 2012, a dog named Logan, a Siberian husky who lived in Wales Township, Michigan, was blinded and eventually died after someone threw battery acid on him while he was in his backyard kennel.

The culprit was never identified. But Matt and Nancy Falk, the couple who owned Logan, became crusaders against animal abuse, pushing the state legislature to create a statewide registry for convicted animal abusers to make it easier to stop them from adopting pets.

Michigan lawmakers eventually abandoned the idea of a registry, deciding it would be too expensive. But state legislators put together a package of bills that would prohibit convicted animal abusers from adopting another pet for five years and require nonprofit shelters to conduct background checks.

To do that, the bills amended the state's penal code, including the part dealing with sodomy and bestiality.

Sex with animals and "unnatural" sex with other humans were first combined in Michigan law in 1897, and the connection was maintained when the state penal code was overhauled in 1931.

"Any person who shall commit the abominable and detestable crime against nature either with mankind or with any animal," the code still reads, "shall be guilty of a felony, punishable by imprisonment in the state prison not more than 15 years." (Legally, sodomy usually includes anal and oral sex in either a same-sex or opposite-sex encounter, but the Michigan Supreme Court ruled in 1936 that only anal sex constitutes sodomy in the state.)

The animal abuse bill, which passed the Michigan Senate 37 to 1, made changes to that section of the penal code, adding the new penalties for bestiality.

But it didn't change the section on the definition of sodomy, only making a few minor grammatical changes:

So if the code is passed, it will now read as if Michigan makes "the abominable and detestable crime against nature either with mankind or with any animal" punishable by up to 15 years in prison and a ban on animal ownership for five years afterward.

The Supreme Court has ensured, though, that this will never happen.

12 states still have anti-sodomy laws

When the Supreme Court decided Lawrence v. Texas by a 6-3 margin in 2003, making oral and anal sex legal nationwide, 14 states still had anti-sodomy laws on the books.

The decision (which has a fascinating history) invalidated those laws. Still, 12 states, including Michigan, never repealed them.

This isn't necessarily unusual. Legislators love passing laws, but they're much less likely to go back and clean up old ones. State criminal codes are overstuffed with outdated, unconstitutional, unenforceable laws of all kinds, and Michigan is no exception.

Adultery is technically a felony in Michigan. So is "seducing and debauching an unmarried woman." The state's penal code says unmarried people who live together can be fined or put in prison.

Still, since LGBTQ people face far more day-to-day discrimination than people having affairs or unmarried people living together, advocates argue that the sodomy laws are damaging. Keeping them on the books is a way for the state to disapprove of same-sex relationships. At worst, they've led to public embarrassment and state-sanctioned harassment.

In Baton Rouge, Louisiana, law enforcement officials repeatedly arrested men for having sex with each other and charged them with sodomy as recently as 2015. The cases were dropped, because the charges were unconstitutional, but the experience still opened the men involved to public exposure and embarrassment.

Michigan isn't as culturally conservative as the other states that still ban sodomy: Discrimination based on sexual orientation in education and employment is outlawed, for example. And so when state lawmakers were amending the relevant section of the state criminal code anyway, it might have seemed like the perfect time to get rid of the outdated, unconstitutional sodomy ban.

But lawmakers didn't take the opportunity.

The sponsors of Logan's Law were afraid of starting a divisive fight

Bill Pugliano/Getty Images

Debates over repealing the laws have turned into debates about the morality of homosexuality. In Texas, the state that lost the Supreme Court case in the first place, Republicans officially opposed repealing the ban as recently as 2010.

The Michigan lawmakers who sponsored Logan's Law, which they've been trying to pass for four years, feared opening up the debate would derail the animal abuse legislation.

"The minute I cross that line and I start talking about the other stuff, I won’t even get another hearing," state Sen. Rick Jones, a Republican who sponsored the bill, told the New Civil Rights Movement. "Nobody wants to touch it. I would rather not even bring up the topic, because I know what would happen. You’d get both sides screaming and you end up with a big fight that’s not needed because it’s unconstitutional."

The idea that protecting animals is less controversial than repealing an unnecessary, invalidated law could still harm people might be depressing. But it's well-established that people have more empathy for pets than they do for their fellow human beings. A 2013 study found that people felt more emotional distress when reading news stories about beaten animals than they did beaten adults. (Injured babies still provoked the most concern.)

The good news is that the outcry over Michigan's new law — however alarmist and sometimes downright wrong — seems to have spurred legislators to take it up after all.

Equality Michigan, a LGBTQ activist group, wrote on Facebook on Tuesday that the House version of the bill would be changed and the unconstitutional ban on sodomy removed.

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