Last edited: January 28, 2005

The Ghosts of Jamestown

New York Times, July 3, 2003
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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 world.

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 books.

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 them.

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 world afresh.

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:

In memoriam
First American Sodomite.
Rest in Peace.

  • Adam Goodheart is the C.V. Starr fellow at Washington College in Chestertown, M.d.

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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