Ghosts of Jamestown
York Times, July 3, 2003
229 W. 43rd Street, New York, NY 10036
By Adam Goodheart
WILLIAMSBURG, Va.—I had a date
the other night with a guy who has been dead for almost 400 years. His name
was Richard Cornish, and the last time he got involved with another man, he
was executed for his crime. That was at Jamestown, Va., in 1624, and his case
was the first recorded sodomy prosecution in American history.
Last Thursday, when I heard the news of the Supreme
Court’s decision ruling a ban on homosexual conduct unconstitutional, I
happened to be traveling near Jamestown, now a historical and archaeological
park. So I bought a bottle of Virginia chardonnay, sneaked into the site (it
had closed for the day), sat down on the grass next to a wall of crumbling
brick, and drank a silent toast in Cornish’s memory.
Jamestown, where the English established their first
permanent settlement in the New World in 1607, is a strange place, one where
the dark corners of our national heritage are illuminated as they are nowhere
else. It is the spot where American history brushes up against the Middle
Ages—where archaeologists, now excavating the fort that settlers built
there, dig up rusted armor and broadswords. The Texas law that the Supreme
Court struck down last week was, no less than those, a relic of a different
In his majority opinion in last week’s ruling, Justice
Anthony M. Kennedy dismissed conservative arguments that laws against same-sex
intercourse had deep roots in Anglo-American tradition. Sodomy codes, he
wrote, originally proscribed both homosexual and heterosexual acts, and in any
event were rarely enforced except in cases of rape. Therefore, he wrote,
defenders of the Texas law were wrong to claim that history was on their side.
But Justice Kennedy’s well-intentioned evasion slighted
the true past. America has a long tradition of laws regulating private sexual
conduct, and these laws have been enforced with particular ferocity when the
conduct has been between people of the same sex. In the case of Cornish—a
sea captain convicted, on flimsy evidence, of sodomy with an indentured
servant—not only was he hanged, but when several other settlers grumbled
about the verdict, they were whipped or pilloried, or had their ears cut off.
Similar laws were enforced in the other American
colonies. In Massachusetts in 1629, five “beastly Sodomiticall boys” were
sent back to England for execution.
Such colonial codes, inherited from English common law,
were the direct ancestors of modern laws. After the American Revolution, their
harshness was gradually tempered. No less a civil libertarian than Thomas
Jefferson supported changing Virginia’s penalty for sodomy from death to
mere castration, but even so, as of last week, after four uninterrupted
centuries, his state was one of at least 13 where sodomy laws remained on the
Justice Byron White, upholding Georgia’s sodomy law in
1986, referred approvingly to the “ancient roots” of proscriptions against
homosexuality. These ancient roots were evident even in the language of
20th-century sodomy rulings, language that smacked of witchcraft trials. In
1921, Florida’s Supreme Court went so far as to refer to men convicted of
sodomy as “creatures” who “are called human beings.”
Now conservatives infuriated by the Supreme Court’s
decision—and no doubt laying the groundwork for coming political battles
over gay marriage—are fulminating about the court’s betrayal of
“traditional” American values. In one respect, they are absolutely right:
laws that penalize homosexuality are, indeed, deeply rooted in our shared
traditions. But this should only strengthen our national resolve in undoing
To visit Jamestown is to be reminded that the founders of
our nation inherited a great deal of baggage from the past, baggage that has
only gradually been left by the wayside. Not only did the persecution of
homosexuals in America begin in Jamestown, almost two centuries before
independence, but so did the enslavement of blacks. The colonists’ break
with England was the first conscious step toward creating in the New World a
world that was truly new. American history has been a continuing revolution,
of which 1776 was only one chapter—as Jefferson himself famously predicted.
In the eloquent concluding passage of his opinion,
Justice Kennedy wrote that America’s founders, though they would never have
imagined their Constitution being invoked to protect sodomy, “knew times can
blind us to certain truths and later generations can see that laws once
thought necessary and proper in fact serve only to oppress.”
Last week’s decision should therefore be hailed not
just as a victory for fairness and equality, but as a step forward in another
American tradition: that of clearing out the dust of the past and remaking the
At Jamestown, there are monuments to John Smith and
Pocahontas, and to the first glass blowers in America and the first Anglican
priest. There is no monument to Richard Cornish.
So before I left, I went into the rebuilt church at the
site, beneath whose floor lie buried the early rulers of Virginia, the men who
sentenced Cornish to die. I set the wine bottle down on the pavement before
the altar, along with a piece of paper on which I wrote:
First American Sodomite.
Rest in Peace.
Church and State
To the Editor:
Adam Goodheart says America has a long tradition of
punishing homosexual conduct (“The Ghosts of Jamestown,” Op-Ed, July 3).
But the tradition that he refers to, including the case of Richard Cornish,
who was executed in Jamestown, Va., in 1624, has its roots in religion, not
American constitutionalism. It is true that the early American colonists
brought religion with them to the New World, but they were not yet Americans.
The colonies they established did not separate church and state. But the
United States Constitution does precisely that. What Justice Anthony M.
Kennedy’s opinion in the Texas sodomy case apprehended is that the mere fact
that there is a religious tradition of persecuting homosexual conduct is not
sufficient to justify state persecution.
David R. Dow
Houston, July 3, 2003
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