Last edited: November 07, 2003

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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