Nick Krieger (@nckrieger):
I'm about to explain Michigan's sodomy law and why so many people are so wrong about this non-issue. If you don't want your kids learning about sodomy, please don't let them read what I've written below.
Lately, there have been lots and lots of outrageous-sounding media articles announcing that the Michigan Senate has just voted to re-criminalize sodomy between consenting adults. They're all wrong. Here's the truth:
Michigan, like most states, has had a sodomy law for a very long time. Michigan's sodomy statute essentially dates to 1846.
At common law (think pre-18th-century England—the place our criminal law comes from), sodomy was a felony punishable by death (like all other serious felonies). The ancient felony of sodomy actually consisted of two sub-felonies: buggery (anal sex) and bestiality (sex with animals). This dual nature of the offense persisted in the law and influenced lawmaking in America. Many American states eventually adopted laws criminalizing both anal sex between humans and sex with animals in the exact same statute. (Some of these sodomy statutes prohibited oral sex as well). In some states these were known as "sodomy" statutes. In other states they were known as "crimes against nature" statutes.
Michigan's existing sodomy statute, currently codified at MCL 750.158, is no different. It has long outlawed "the abominable and detestable crime against nature" with both "mankind" and "any animal." Again, this is the majority rule in America—not the exception. Does it seem really weird to have prohibitions against sex with animals and anal sex between two consenting humans in the same statute? Yep. But it's just an oddity of history; that's the way it is across English-speaking common-law jurisdictions.
Senate Bill 219 (Substitute S-1), unanimously passed by the Michigan Senate last week, is a bipartisan bill to prescribe greater penalties for animal torture and abuse. Believing that intercourse with an animal constitutes a type of animal abuse, the bill's sponsors included language that would result in harsher penalties for persons convicted of sodomy with animals. Specifically, the bill would (1) require as a condition of probation that a defendant convicted of sodomy with an animal could not own a pet/animal within a certain number of years, and (2) permit the sentencing judge to order the convicted defendant to give up any pets/animals. SB 219 is an animal protection bill, plain and simple. These proposed, new provisions have nothing to do with the other part of the existing law that bans sodomy between humans.
Now, here's what people are getting wrong:
The language of SB 219 contains all the language of the existing sodomy statute (MCL 750.158). This has caused people to assume that SB 219 is somehow a bill to re-criminalize anal sex or a bill to criminalize sodomy between humans as well as with animals. Not so.
Michigan legislative procedure is important here. As a matter of Michigan constitutional law, a bill making an amendment to an existing statutory section must set forth the entirety of the existing section at length. Const. 1963, art. 4, sec. 25. As noted, the sodomy statute already exists at MCL 750.158. Therefore, in order to effect any amendments to that statute (namely, by adding the above-referenced language concerning penalties and animal/pet forfeiture), the Legislature must constitutionally republish the whole sodomy statute at length—including the part that already exists. This is why you will see language concerning "the abominable and detestable crime against nature . . . with mankind" if you look up SB 219 on the Michigan Legislature's website. But this language is certainly nothing new.
For future reference, remember that when looking up bills that are pending in the Michigan Legislature, all NEW, PROPOSED AMENDMENTS will be in bold and all capital letters. Any language that is not in bold/all caps is the language that is already part of the existing law.
If you look at the relevant part of SB 219 (Substitute S-1) (pages 20-21) on the Michigan Legislature's website, there are only two items in bold/all caps:
1. Various routine stylistic amendments to MCL 750.158 (removing "shall commit" and "shall be," for example) that have been included as a matter of course on the recommendation of the nonpartisan legislative bill-drafting service; and
2. A new Section 2, which would authorize the aforementioned animal/pet forfeiture penalties for defendants convicted of having sex with animals.
Now one last thing: The portion of the existing MCL 750.158 that criminalizes sodomy between two human beings is unconstitutional and unenforceable under the United States Supreme Court's decision in Lawrence v. Texas. Period. SB 219 in no way changes that, nor could it. A state legislature cannot overrule a ruling of the U.S. Supreme Court on a matter of federal constitutional law. So, with respect to anal (or oral) sex between humans, the senate bill neither adds nor changes anything.
Of course, forcible sodomy and all anal/oral sex that is nonconsensual—just like common-law rape—is still very much illegal pursuant to Michigan's criminal sexual conduct statutes.
I hope this helps.