Creating Criminals: The Injuries Inflicted by "Unenforced" Sodomy Laws

Millions of laws fill American statute books. Operating without omniscience and with finite resources, law enforcement officials cannot possibly enforce them all. Occasional calls to purge criminal and civil codes of archaic and unenforced laws are rarely answered.' So it comes as no surprise that many laws are simply not enforced. Some are forgotten, but not gone. Some are viewed by observers as historical curiosities or humorous trivia rather than legitimate laws. Courts, scholars, and the public tend to view such unenforced laws as inconsequential.3 Unenforced laws need not be repealed, the argument goes, because they are harmless. Unfortunately, this reasoning can lull legislators and the electorate into unwarranted complacency. A criminal law, though not enforced through prosecutions, may still affect society. This Article presents a case where courts and mainstream scholars incorrectly presume that a lack of criminal enforcement necessarily means an absence of harm: sodomy statutes. The Article demonstrates that the very existence of sodomy laws creates a criminal class of gay men and lesbians, who are consequently targeted for violence, harassment, and discrimination because of their criminal status. Although scholars have written numerous articles about sodomy laws since the Supreme Court's decision in Bowers v. Hardwick, 4 one important aspect of sodomy laws has been largely ignored. Despite the