I’m not an American or legally trained, but I’m wondering if there has ever been any compensation awarded to homosexuals fined under sodomy laws, after those laws were found to be unconstitutional. My line of thinking is that, unlike a simple change in law, where the outdated law could still be recognised as having been legitimate over some period in the past, for it to be overturned by the Supreme Court means that it had always contradicted the Constitution and should never have been exercised.

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    More generally, what happens to a conviction under a law which is later judged unconstitutional? Oct 17, 2020 at 16:13
  • Yes, the question can be expanded to include racial segregation laws etc. Do SCOTUS decisions have retroactive power and, if not, why? Oct 17, 2020 at 16:17
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    @User37849012643 It is very much relevant, but the only answer to that question may not be right, based on multiple comments underneath it. Oct 17, 2020 at 18:20
  • Yes, that answer was quite wrong. Further, this question speaks to a civil matter, where the previous addresses only the criminal dimensions of the problem.
    – bdb484
    Oct 18, 2020 at 2:31

1 Answer 1


The victims of these unconstitutional laws would likely not be able to recover any damages or refunds of their fees.

Generally speaking, the only avenue to challenge fees imposed as a result of a criminal conviction for sodomy (or any other criminal law) is through a direct appeal of your conviction or sentence. The amount of time to raise that appeal is 30 days from the entry of the final judgment in most states, though it can be as low as 10 days in Virginia or as high as 90 days in Wisconsin.

So by the time the court struck those laws down in Lawrence v. Texas, 539 U.S. 558 (2003), the only people who could still raise an appeal would probably be those who had been convicted in the month or so before the court's decision. Even then, many of those people would likely still be unable to appeal. If they paid their fine, they generally forfeit the right to seek to vacate it. If they pleaded guilty, they probably would have waived their right to appeal on constitutional grounds. If they failed to raise the constitutional defense, they probably waived their right to raise it on appeal as well. So now the only people who can seek to vacate their fines are those you're dealing solely with the people who raised a constitutional defense, were convicted anyway, and had not yet paid their fines. Probably a very small universe.

The other possibility would be through a civil suit under Section 1983, alleging that the government infringed on their rights by bringing that lawsuit. There are several possible ways to get hung up here, as well. First, under Heck v. Humphrey, 512 U.S. 477 (1994), the courts can't allow a 1983 action based on a criminal conviction unless the conviction "has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus."

Again, it would be too late to reverse the conviction, and habeas corpus would be unavailable for someone who had merely paid a fine. Perhaps one could obtain an expungement under a statutory procedure and characterize that as an executive order, but I don't know that that would be persuasive.

Even if the plaintiff were able to address his conviction in one of those ways, the ongoing litigation over compulsory union fees makes me think he would probably remain unable to collect damages. In the union cases, the Supreme Court had previously explicitly allowed public-sector unions to impose mandatory union dues, and it then reversed course, finding those dues unconstitutional. Although the unions could no longer collect the dues, a question arose as to whether they had to refund the dues they had collected in the past. As far as I know, every court to consider the question has found that a "good faith" defense essentially immunized those unions from liability for damages based on the previous collection of dues.

Analogizing here, the Supreme Court has previously explicitly permitted state anti-sodomy statutes in Bowers v. Hardwick, 478 U.S. 186 (1986), then reversed in Lawrence. In the meantime, many states collected fines from defendants convicted of sodomy in reliance on Bowers. So I suspect the courts would find that any municipal defendants in those cases would be eligible for the good-faith defense, and any individual defendants would be eligible for qualified immunity, as the illegality of their conduct was obviously not clearly established, given Bowers.

So in short, I think any attempt to recoup those fees would fail.

  • the number of cases affected would be stretched onto all those cases that did raise the mentioned defense, got fined, and then appealed and that had the case still pending in some way or another at the point the law was struck down.
    – Trish
    Oct 17, 2020 at 21:46
  • There is one avenue they could pursue, but it would be political rather than legal: (try to) apply political pressure to politicians so that they pass a law providing restitution. Still fairly unlikely to work. The UK, for example, passed a law in 2017 that pardoned everyone convicted under its sodomy laws (including posthumously, but not those acts which were still crimes under other non-sodomy based laws, such as rape etc.), but provided no relief or restitution to those so affected. Oct 18, 2020 at 0:46
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    "If they failed to waive the constitutional defense" Do you mean "failed to raise"? Oct 18, 2020 at 0:52
  • @Acccumulation Corrected. Thank you.
    – bdb484
    Oct 18, 2020 at 2:00

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