Proscribing the ‘Infamous Crime Against Nature’
From The Inquisition to The Bill Of Rights, Homosexuality Has Been A Legal Issue
For A Millennium
Washington Blade,
December 31, 1999
By Lisa Keen
The two most influential events in law for Gay people in the past 1,000 years happened
within five years of each other and within 1,000 miles.
One thing that did not happen during this millennium was the criminalization of sexual
activity between people of the same gender. The first laws prohibiting such activities
came long before this millennium. Medieval scholars point to the Byzantine emperor,
Justinian, who codified Roman Law into Corpus Juris Civilis, with the origin of many laws
that exist today. One of those laws, first codified in the fifth century, prescribed the
death penalty for those who "commit acts of vile lust with [other] men." Other
historians point to even earlier origins.
In this millennium, the most significant events concerning homosexuality and the law
have revolved around the enforcement and expanding reach of those first laws criminalizing
same-sex sexual activity and around their reform and repeal. And, in both those respects,
the most profound events occurred during the 1200s and in Europe.
Perhaps the single most influential development for Gay people today was the emergence
of what is popularly referred to as "The Inquisition." The Inquisition refers to
the practice of systematically seeking out and destroying "heretics." According
to a number of scholars, a heretic, back then, was anyone who was anti-church, including
men who had sex with men, witches (male and female), and all those who "hinder men
from begetting and women from conceiving." Frequently, note the scholars, women and
men were labeled witches simply because they lived in a way that was unconventional for
their society at the time. They were "strong" women, "spinsters," and
living independently, or they were labeled "social undesirables," said some
scholars. Ultimately, suggested one scholar, it was probably not these men and women who
were demonic or undesirable, but more likely their accusers who were delusional or
motivated in some nefarious way.
Who started this? History seems to point to Emperor Frederick II of Italy and edicts he
issued in 1220 and 1224 calling for all heretics to be burned at the stake. Until then,
notes the Catholic Encyclopedia, "there was no imperial law ordering, or presupposing
as legal, the burning of heretics." Prior to Frederick II’s edict, the church
was the primary hunter and killer of heretics. Some believe Frederick went after heretics
as part of his power struggle with the Catholic Church. Certainly the church believed so
and, not wanting to lose any of its own clout, quickly got its own officials involved in
conducting the inquiries. According to some accounts, once the church authorities were
convinced they had found a heretic, they turned him or her over to the civil authorities
to deliver the sentence.
Although these inquiries were conducted primarily by church officials, the procedure
itself was considered a legal technique, no doubt created to impose some semblance of
fairness and reason in the process of determining who would be burned at the stake, versus
a simple mob mentality. The practice took on various incarnations in various European
countries and reached into seven of the millennium’s 10 centuries. It jumped oceans,
too, and took the form of witch-hunts in the New World.
Ironically, another judicial development that began at about the same time as the
Inquisition also had a tremendous influence on Gay people today — but in a more
positive way. In 1215, King John of England signed the Articles of the Barons that
eventually became known as the Magna Carta. The document proclaimed that men had certain
personal rights. As time went by, of course, that concept grew and reached across many
borders and centuries, inspiring such other documents as the U.S. Constitution and its
Bill of Rights, guaranteeing each person (not just men) liberty, equality, and the
freedoms of speech and association, among others.
These two major developments in law — the adoption of a systematic religiously
based antipathy toward people who are different, and the evolution of respect for the
right of an individual to live as a free and equal sovereign — became the weeds and
seeds of many grassroots civil rights movements.
In the United States
In this country, the parallels are similar.
Laws prohibiting sexual activity between persons of the same gender were established
even before this country became a nation. The colonies in America simply adopted English
common law, which proscribed "the infamous crime against nature." (Once again,
royalty was to blame: The first English law to criminalize same-sex sexual activity was
initiated by King Henry VIII.) The laws were eventually adopted by all 50 states and the
District of Columbia and Puerto Rico, and have served as the bedrock for discrimination
against Gay people in every arena. This began to change in 1962, when the American Law
Institute, at its annual meeting, approved a "Model Penal Code … to stimulate
and assist legislatures in making a major effort to appraise the content of the penal law
by a contemporary reasoned judgment." Among other things, the model code
decriminalized adult, consensual, private, sexual conduct. The model code was quickly
adopted by the Illinois legislature; the legislatures of 25 other states and the District
of Columbia eventually followed suit, either by adopting the new code or by repealing
their own sodomy laws. In seven other states, courts have either ruled the laws
unconstitutional or unenforceable.
The U.S. equivalent to the world’s Magna Carta, of course, is the Bill of Rights
— the first 10 amendments to the U.S. Constitution. It was Thomas Jefferson who
called for a "bill of rights" and James Madison who drafted it. The document,
approved in 1791, guaranteed the individual American citizen the right to speak his mind
(her mind came much later), associate with whomever he chose, and to exercise whatever
religious beliefs he chose. It also guaranteed the individual white male property owner,
if accused of a crime (including any "infamous crime"), the right to due process
of law, and the right to confront his accusers. In short, the Bill of Rights protected
against many of the same trespasses that had befallen those accused in other lands and
other centuries of being heretics and witches.
Unfortunately, neither the Constitution nor the Bill of Rights explicitly guaranteed
these rights to all people, but the evolution toward democracy was begun, and so was the
struggle to establish — as a matter of law and fact — that "we the people
of the United States" includes women, racial minorities, and Gay people, among
others.
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