Could a Baltimore City ordinance banning sexual-orientation discrimination coexist with Maryland's 1980s criminal sexual conduct laws?

Plain-English summary

A delegate asked the Attorney General whether a proposed Baltimore City Council bill barring discrimination based on "sexual orientation" in employment, education, public accommodations, and health and welfare services would impermissibly conflict with state criminal laws, Article 27, §§553 and 554 of the Maryland Code, that prohibited certain sexual acts. The opinion drew a line between laws that criminalize conduct and laws that criminalize mere status, explaining that the state sodomy and "unnatural or perverted" sex act statutes punished behavior, not a person's status as homosexual, heterosexual, or bisexual. Because the proposed ordinance addressed discrimination based on status and expressly stated it was "not intended to permit any practice prohibited by State or local law," the opinion found no conflict between the ordinance and state law. The opinion also concluded the bill would not violate the Fifth Amendment even if it required a complainant to establish their sexual orientation, since filing a discrimination complaint would be a voluntary act rather than government-compelled self-incrimination, and that the bill's definition of "sexual orientation" was not unconstitutionally vague.

Currency note

This opinion was issued in 1984. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Could a Baltimore City ordinance banning sexual-orientation discrimination coexist with Maryland's 1980s criminal sexual conduct laws?
According to this 1984 opinion, yes. The Attorney General concluded that state law did not preclude Baltimore from enacting an ordinance prohibiting discrimination based on sexual orientation, because the ordinance addressed a person's status while the state criminal statutes addressed specific conduct.

Why didn't the criminal sodomy statutes conflict with an anti-discrimination ordinance based on sexual orientation?
The opinion explained that the Maryland Court of Appeals had already held that the state's sexual conduct statutes punished behavior the state deemed offensive, not mere status, and that the proposed ordinance likewise addressed only status-based discrimination and explicitly did not purport to authorize any act that state law made criminal.

Would requiring a complainant to prove their sexual orientation violate the Fifth Amendment?
The opinion concluded it would not, even in the unlikely event the ordinance were read to require such proof, because filing a discrimination complaint would be a voluntary act rather than one compelled by the government, and the Fifth Amendment protects only against compulsory self-incrimination.

Background and statutory framework

The opinion measured proposed Baltimore City Council Bill 187 against Article 27, §§553 and 554 of the Maryland Code, the state's criminal statutes addressing sodomy and other sexual acts, and against Maryland and federal case law distinguishing laws that criminalize status from laws that criminalize conduct. It also considered the Fifth Amendment, applicable to the states through the Fourteenth Amendment, and prior case law on vagueness challenges to statutory definitions in analogous local ordinances from other jurisdictions.

Citations

Statutes:

• Article 27, §553 of the Maryland Code (state sodomy statute)
• Article 27, §554 of the Maryland Code (prohibition on "unnatural or perverted" sexual acts)
• Eighth Amendment to the United States Constitution (bars punishing mere status)
• Fourteenth Amendment to the United States Constitution (applies the Eighth and Fifth Amendments to the states)
• Fifth Amendment to the United States Constitution (protects against compulsory self-incrimination)

Cases:

• Powell v. Texas, 392 U.S. 514, 532-33 (1968) (distinguishing criminal sanctions for behavior from laws addressed to status alone)
• Robinson v. California, 370 U.S. 660 (1962) (a statute criminalizing mere status violates the Eighth and Fourteenth Amendments)
• Neville v. State, 290 Md. 364, 385 (1981) (Maryland's sexual conduct statute punishes behavior, not status)
• Gay Alliance of Students v. Matthews, 544 F.2d 162 (4th Cir. 1976) (Virginia law criminalizing certain acts did not make it a crime to be a homosexual)
• In re Florida Board of Bar Examiners, 358 So.2d 7, 8 (Fla. 1978) (acknowledged homosexual orientation alone did not disqualify a bar applicant)
• BenShalom v. Secretary of Army, 489 F.Supp. 964, 976 (E.D.Wis. 1980) (cited on the status/conduct distinction)
• City of Baltimore v. Sitnick, 254 Md. 303, 317 (1969) (a local ordinance conflicts with state law only if it prohibits what state law permits or permits what state law prohibits)
• Hoffa v. United States, 385 U.S. 293, 304 (1966) (Fifth Amendment protects against compulsory self-incrimination)
• United States v. Gardner, 516 F.2d 334, 339 (7th Cir. 1975) (cited on voluntary versus compelled disclosure)
• Gaylord v. Tacoma School Dist. No. 10, 559 P.2d 1340, 1343-44 (Wash. 1977) (ordinary words with commonly understood meanings are not unduly vague)
• Blake v. State, 210 Md. 459, 462 (1956) (cited on statutory definiteness)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1984/Volume69_1984.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

Local Government-Conflicts-Discriminatory Practices-"Sexual Orientation"-Fifth Amendment-State Laws That Prohibit Certain Sexual Activities Do Not Preclude Enactment Of City Ordinance To Prohibit Discrimination Based On Sexual Orientation-Fifth Amendment Rights Would Not Be Infringed By Ordinance.

May 30, 1984

The Honorable Anne S. Perkins
Maryland House of Delegates

You have requested our opinion on whether Council Bill 187 ("Discriminatory Practices-Sexual Orientation"), now pending before the Baltimore City Council, impermissibly conflicts with State law.

For the reasons given below, it is our opinion that State law does not preclude the enactment of a local ordinance of this kind.

I
Introduction

Council Bill 187 would prohibit discrimination based on "sexual orientation" in employment, education, public accomodations, and health and welfare services. For this purpose, the bill defines "sexual orientation" as "the status of an individual as to homosexuality, heterosexuality, or bisexuality".

II
Conflict with State Law

Your principal question is whether Council Bill 187 would impermissibly conflict with those provisions of State law, Article 27, §§553 and 554 of the Maryland Code, that prohibit certain sexual practices. We do not believe that it would.

Criminal sanctions for particular behavior must be distinguished from laws addressed to status alone. See Powell v. Texas, 392 U.S. 514, 532-33 (1968). Under Robinson v. California, 370 U.S. 660 (1962), a statute that purports to criminalize mere status would violate the Eighth and Fourteenth Amendments. Article 27, §§553 and 554, however, are not such statutes. For example, in addressing the constitutionality of Article 27 §554, which prohibits "unnatural or perverted" sexual acts, the Court of Appeals carefully explained: "The State here has not attempted to punish 'mere status', but has imposed a sanction for behavior it deems harmful or offensive to the sensibilities of a large segment of the community. This it is entitled to do under the Eighth Amendment to the United States Constitution." Neville v. State, 290 Md. 364, 385 (1981). The same analysis obviously applies as well to Article 27, §553, which proscribes the crime of sodomy.

Council Bill 187, in contrast, addresses status rather than behavior. The bill does not purport to authorize any act made criminal by State law. Indeed, the proposed definition for "sexual orientation" explicitly disavows any such intent: "This section is not intended to permit any practice prohibited by State or local law." Thus, even though the bill would prohibit discrimination against any person because of that person's sexual orientation, it would not in any way attempt to protect anyone from prosecution for actions that the State has declared to be criminal.

Courts in other jurisdictions have had little difficulty in drawing just this distinction. For example, in Gay Alliance of Students v. Matthews, 544 F.2d 162 (4th Cir. 1976), the Fourth Circuit held that Virginia Commonwealth University could not constitutionally refuse to officially recognize a student organization that advocated liberalization of laws restricting homosexual practices. Characterizing the University's denial of recognition to prevent those practices as "overkill", the court pointed out that "[w]hile Virginia law proscribes the practice of certain forms of homosexuality, ... Virginia law does not make it a crime to be a homosexual". 544 F.2d at 166 (emphasis in original). Similarly, the Supreme Court of Florida has held that a bar applicant's acknowledged homosexual "orientation or preference", notwithstanding even state laws that prohibit certain homosexual behavior, was not enough to disqualify the applicant from admission to the bar in the absence of evidence "that the applicant has acted or plans to act on his sexual preferences". In re Florida Board of Bar Examiners, 358 So.2d 7, 8 (Fla. 1978). See also BenShalom v. Secretary of Army, 489 F.Supp. 964, 976 (E.D.Wis. 1980).

Consequently, in our opinion, there is no inconsistency between State law and Council Bill 187. The bill would neither prohibit acts expressly permitted by State law nor permit acts prohibited by State law. See City of Baltimore v. Sitnick, 254 Md. 303, 317 (1969).

III
Related Issues

You have also asked us to address two related questions that have been raised about the bill.

First, you ask if Council Bill 187 might violate the Fifth Amendment by requiring proof of a complainant's particular sexual orientation as a prerequisite to relief from discrimination. In our view, the bill would not infringe constitutional rights, even in the unlikely event that it were somehow read to require such proof.1 The Fifth Amendment, applicable to the states through the Fourteenth Amendment, protects against compulsory self-incrimination. Hoffa v. United States, 385 U.S. 293, 304 (1966). Filing a complaint under Council Bill 187 would, of course, be a purely voluntary act, not one compelled by governmental authority. See United States v. Gardner, 516 F.2d 334, 339 (7th Cir. 1975). Thus, even if a complainant were called upon to offer evidence that he or she in fact is, for example, a homosexual (or even, hypothetically, that he or she at one time or another has engaged in prohibited sexual activities), the lack of governmental compulsion to file or pursue the complaint necessarily precludes any conflict with the Fifth Amendment.2

Second, you ask whether the bill's definition of "sexual orientation" is legally adequate. The proposed definition, which uses ordinary words with commonly understood meanings, clearly states the distinguishing characteristics of the persons to be protected. Gaylord v. Tacoma School Dist. No. 10, 559 P.2d 1340, 1343-44 (Wash. 1977). See Blake v. State, 210 Md. 459, 462 (1956). Consequently, in our view, the proposed definition is not unduly vague or imprecise.

IV
Conclusion

In summary, it is our opinion that State law does not preclude the enactment of Council Bill 187. Because Council Bill 187 would protect persons only against discrimination based on their sexual status, it would not conflict with State laws that prohibit certain sexual practices. The bill would not in any way infringe the Fifth Amendment rights of those seeking its protection, and the bill's definition of "sexual orientation" is not unduly vague or imprecise.

Stephen H. Sachs, Attorney General

Avery Aisenstark
Chief Counsel,
Opinions and Advice

1 Under Council Bill 187, any discrimination on the basis of sexual orientation would be unlawful, regardless of the precise nature of the victim's orientation. It is likely, therefore, that a violation could be found simply by showing that the respondent discriminated against the complainant and that the basis of this discrimination was the respondent's own perception of the complainant's sexual orientation, however accurate or inaccurate that perception might have been.

2 Whether or to what extent the potential for such disclosures might inhibit an individual's use of the proposed law to protect his or her rights is essentially a question of policy, of practical effectiveness, and does not at all affect the legal sufficiency of the bill as proposed.