Changing the Law of the Land, Six Justices Turned to Its History
New York Times,
July 20, 2003
229 W. 43rd Street, New York, NY 10036
By Peter Edidin
When the Supreme Court voted 6 to 3 last month to strike down criminal
sodomy laws, it reversed its 1986 decision in Bowers
v. Hardwick, which held that the Constitution didn’t guarantee the
right to engage in “homosexual sodomy.”
Both cases turned on history, not just law. In Bowers, the majority
cited evidence that in the 18th and 19th centuries, sodomy was generally
illegal in the United States. Chief Justice Warren E. Burger, in his
concurring opinion, wrote that to affirm the right to engage in homosexual
sodomy “would be to cast aside millennia of moral teaching.”
The notion that Western society has held a consistent view about what
constitutes sodomy, and that the practice of it by same-sex couples, in
particular, deserved punishment, was one that a group of nine historians
“knowledgeable about the history of the treatment of lesbians and gay men in
America” decided to challenge.
In a supporting brief on behalf of the petitioner in Lawrence
v. Texas, the case that was the occasion for the court’s momentous
decision in June, these scholars contended that history taught a different
lesson: that the legal prohibitions against same-sex sodomy derived from
20th-century prejudice, not the enduring attitudes of Western civilization.
Their argument won the day. As Justice Anthony M. Kennedy made clear in his
majority opinion, “there is no longstanding history in this country of laws
directed at homosexual conduct as a distinct matter.”
Excerpts follow from the historians’ brief. The full document can be
found at www.lambdalegal.org.
The brief begins with medieval Christian theology, and its varying
definitions of sodomy.
When the term “sodomy” was first emphasized by medieval Christian
theologians in the 11th century, they applied it inconsistently to a diverse
group of non-procreative sexual practices. In subsequent Latin theology, canon
law and confessional practice, the term was . . . confused with “unnatural
acts,” which had a very different origin and ranged even more widely (to
include, for example, procreative sexual acts in the wrong position or with
contraceptive intent). . . .
Later Christian authors . . . could not agree on what sexual practices were
meant by either “unnatural acts” or “sodomy.” For example, in Peter
Damian, who around 1050 championed the term “sodomy” as an analogy to
“blasphemy,” the “sins of the Sodomites” include solitary
masturbation. In Thomas Aquinas, about two centuries later, “unnatural
acts” cover every genital contact intended to produce orgasm except . . .
intercourse in an approved position.
Many later Christian writers denied that women could commit sodomy at all;
others believed that the defining characteristic of unnatural or sodomitic sex
was that it could not result in procreation, regardless of the genders
The historians next discuss how sodomy became a legal as well as a
religious matter, and how, between the colonial period and the 19th century,
America grappled with the issue.
The English Reformation Parliament of 1533 turned the religious injunction
against sodomy into the secular crime of buggery when it made “the
detestable and abominable vice of buggery committed with mankind or beast”
punishable by death. The English courts interpreted this to apply to sexual
intercourse between a human and animal and anal intercourse between a man and
woman as well as anal intercourse between two men. . . .
Colonial American statutes variously drew on the religious and secular
traditions and shared their imprecision in the definition of the offense. . .
. Puritan leaders in the New England colonies were especially vigorous in
their denunciation of sodomitical sins as contrary to God’s will, but their
condemnation was also motivated by the pressing need to increase the
population and to secure the stability of the family. Thus John Winthrop mused
that the main offense of one man hanged in New Haven in 1646 for having
engaged in masturbation with numerous youths—not, in other words, for
“sodomy” as it is usually understood today—was his “frustratinge of
the Ordinance of marriage & the hindringe the generation of mankinde.” .
Throughout American history, the authorities . . . rarely enforced statutes
prohibiting sodomy, however defined. . . .
Indeed, records of only about 20 prosecutions and 4 or 5 executions have
surfaced for the entire colonial period. . . .
A Baptist minister in New London, Conn., was temporarily suspended from the
pulpit in 1757 because of his repeatedly soliciting sex with men, but the
congregation voted to restore him to the ministry after he publicly repented.
They understood his sexual transgressions to be a form of sinful behavior in
which anyone could engage and from which anyone could repent, not as a sin
worthy of death or the condition of a particular class of people.
The relative indifference of the public and the authorities to the crime of
sodomy continued in the first century of independence. For instance, only 21
men were indicted for sodomy in New York City in the nearly eight decades from
1796 to 1873. The number of sodomy prosecutions increased sharply in the last
two decades of the 19th century. . . .
It was only in the late 19th century that the very concept of the
homosexual as a distinct category of person developed. The word
“homosexual” appeared for the first time in a German pamphlet in 1868, and
was introduced to the American lexicon only in 1892. . . .
Anti-vice societies organized in the late 19th century . . . encouraged the
police to step up harassment of gay life as simply one more part of their
campaigns to shut down dance halls and movie theaters, prohibit the
consumption of alcohol and the use of contraceptives, dissuade restaurants
from serving an interracial mix of customers and otherwise impose their vision
of the proper social order and sexual morality. As a result of this pressure,
the police began using misdemeanor charges, such as disorderly conduct,
vagrancy, lewdness, loitering and so forth to harass homosexuals. . . .
Only in the 20th century, the brief argues, did fear of and discrimination
against homosexuals as a separate class of citizens arise.
In 1923, the New York State Legislature specified for the first time one
man’s “frequent[ing] or loiter[ing] about any public place soliciting men
for the purpose of committing a crime against nature or other lewdness” as a
form of disorderly conduct. . . .
In the early years of the Great Depression, restrictions on gay life
intensified. New regulations curtailed gay people’s freedom of association.
In New York State, for instance, the State Liquor Authority established after
the repeal of Prohibition issued regulations prohibiting bars, restaurants,
cabarets and other establishments with liquor licenses from employing or
serving homosexuals or allowing homosexuals to congregate on their premises. .
In California in the 1950’s, notes one historian, the Alcoholic Beverage
Control Board “collapsed the difference between homosexual status (a state
of being) and conduct (behavior) and suggested that any behavior that
signified homosexual status could be construed as an illegal act. Simple acts
such as random touching, mannish attire (in the case of lesbians), limp
wrists, high pitched voices, and/or tight clothing (in the case of gay men)
became evidence of a bar’s dubious character” and grounds for closing it.
. . .
In 1950, following Senator Joseph McCarthy’s denunciation of the
employment of gay persons in the State Department, the Senate conducted a
special investigation into “the employment of homosexuals and other sex
perverts in government.” . . .
In 1953, President Eisenhower issued an executive order requiring the
discharge of homosexual employees from federal employment. . . .
In the decade following World War II, the police departments of numerous
cities stepped up their raids on bars and private parties attended by gay and
lesbian persons. . . . “Arrests were substantial in many cities. In the
District of Columbia they topped 1,000 per year during the early 1950’s; in
Philadelphia, misdemeanor charges against lesbians and homosexuals averaged
100 per month.”
The historians said this scholarship, much of it new, delineates a
different history than the one the justices relied on in 1986.
Such forms of discrimination, harassment and stigmatization were so
pervasive and well established by the 1960’s that it was widely imagined
that they were the inevitable “residue of an age-old, unchanging social
antipathy toward homosexuality.”
But recent historical scholarship tells a different story. . . .
It was only in the 20th century that the government began to classify and
discriminate against certain of its citizens on the basis of their homosexual
status. An array of discriminatory laws and regulations targeting lesbians and
gay men were put in place in a relatively short period of time. In recent
years, a decisive majority of Americans have recognized such measures for what
they are—discrimination that offends the principles of our nation—yet a
number of them remain in place. The 1973 Texas Homosexual Conduct Law at issue
is an example of such discriminatory laws. They hold no legitimate place in
our nation’s traditions.
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