To some Americans, it seems obvious that consenting adults should be able to have sex with whomever they want; to others, it seems obvious that such things should happen only in marriage. Not only should homosexuals not be sleeping together, say some in this latter group, but also if our laws don’t restrict such activities, the homosexuals are going to be recruiting our children and who knows what else will happen. Theological and legal restrictions and punishments for sodomy go back for millennia, but American laws about sodomy came into their own in the nineteenth century, and have persisted, although they have recently lost much of their power to proscribe behavior. In Dishonorable Passions: Sodomy Laws in America 1861- 2003 (Viking), William N. Eskridge Jr. has given a big and exhaustive history of such laws. A law professor himself, he filed an amicus brief for the judgement in Lawrence vs. Texas whose 2003 date indicates it is the climax of his book. Eskridge documents a change in national legal philosophy whereby adult sexual activity was acknowledged to be best regulated by the conscience of those involved, and for many reasons is best left alone by the government.
Blackstone referred to “the infamous crime against nature” and this particular wording is well known. The nature of this particular crime, however, has always been vague, allowing the definition to be expanded as those in power wished. Biological studies have shown that there is nothing unnatural about homosexual activity, as it appears all over the animal kingdom, and with special exuberance in our bonobo cousins. While many would insist that the Bible is clear in its proscriptions in Genesis, Leviticus, and the Epistles, it is not exact about what specific physiological encounters are the “shameless acts” between men, and it is even less informative about acts between women. Eskridge tries to explain why such acts have proved to be so worrisome, but he cannot penetrate far into that mystery. Sexual activity that cannot produce a pregnancy disgusts or horrifies some people; some religions even insist that it is sinful for married people to have sexual fun if the chance of pregnancy is nil. That people have heterosexual encounters far more often for fun than for an effort to produce a pregnancy seems not to matter. “Crimes against nature” has even included masturbation in some jurisdictions. There has been a longstanding fear (most loudly voiced by Florida Citrus Commission spokesperson Anita Bryant thirty years ago) that homosexuals would recruit children or even adults, and such recruitment would lead to the doom of our society. Such fears now seem quaint and undocumented within recent history. The destabilization of society that was predicted to be the result of allowing sodomy (whatever the definition is) has not happened, for instance, in Britain which decriminalized consensual sodomy in 1967, or in the states which decriminalized around the same time.
Eskridge may not be able to make clear the motivation for laws against sodomy, but he is exceedingly diligent in making clear the different steps and stages of the laws. The seventeenth century was marked by aggressive enforcement of sodomy laws, with capital punishment for violations. The states of the new nation eventually revoked the death penalty, but kept sodomy or “crime against nature” laws, most of which had to do with the insertion of a penis inside a rectum; thus, women could not commit sodomy, nor could men practicing fellatio. Eskridge says that in the late nineteen hundreds, people flocked to cities, they had better facilities for hygiene, they had more public parks and restrooms, and they had newly-invented zippers, all of which made fellatio more popular. Since it was not classed as a crime against nature, however, there was little those in authority could do. Little to do, that is, except make it part of the crimes against nature; in 1879, Pennsylvania had the first English-language law anywhere to class oral sex as sodomy, and other states followed. Incorporating cunnilingus under sodomy happened with less regularity; sometimes it was made illegal only when a man did it to a woman, perhaps reflecting that the state legislatures did not worry about or did not want to think about homosexual activity between women. Sometimes there was no allowance for being married, so that married couples who enjoyed oral or anal sex were breaking the law, although no state went after these particular miscreants. The new laws were seldom used, too, on unmarried heterosexual couples except for purposes of prosecuting prostitution, so that the laws against sodomy were in fact laws against homosexual behavior. Politicians found it convenient to link homosexuality with other practices thought nasty at the time: “… the Russians are strong believers in homosexuality,” said one representative during the McCarthy period.
As the twentieth century progressed, legislators leaned more toward the nineteenth century utilitarian ideas of Jeremy Bentham who wrote that British sodomy laws restricted pleasure (however much non-participants were disgusted by the idea) without giving social benefit. Thinkers like Margaret Mead and Dr. Alfred Kinsey (both of whom had some personal knowledge of the subject) went on record as opposing consensual sodomy laws. The famous jurist Learned Hand in 1955 got consensual sodomy dropped from a Model Penal Code, and dozens of states adopted the code. Nonetheless, some states kept the laws. In 1982 in Atlanta, Michael Hardwick was arrested for oral sex with another man, and local ACLU attorneys filed suit on his behalf. In 1985, the Supreme Court ruled that Georgia had acted properly. Chief Justice Warren Burger wrote, “To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.” Eskridge explains how Burger’s view was incorrectly reasoned (including the idea that homosexuals were recruiting others and contaminating society) and how it was evaluated that way by many experts at the time. It was not until 2003 that the Supreme Court got a chance to change the decision. It was a more conservative court at that time, and the country had gone through a spell of politically powerful Christian conservatism. The most conservative members would have kept the sodomy laws in action in considering Lawrence vs. Texas, but they were in a 6 – 3 minority. It was yet another case in which police had conducted a search of questionable ethics and legality into the apartment of one John Lawrence, and found him in bed with another man. Justice Anthony Kennedy in his majority opinion wrote, “Bowers was not correct when it was decided, and it is not correct today.”
Much of Eskridge’s book is of legal analysis deeper than many layman will enjoy, but there are details here of the lives of, say, Bowers and Hardwick, and not just their legal cases. There are descriptions of lawyers on both sides of issues, and the judges who ruled on the cases, so that the book provides a picture of how the law works and how it has come to allow consensual sodomy today, while still capably prosecuting forced sex or sex upon minors. Given the subject, there are flashes of humor in what is otherwise a solidly serious tome. For instance, in the 1961 decriminalization debate in the Illinois capitol, one exasperated representative exclaimed that the only way sex would in the future be illegal in his state was “… if you’re doing it on the front porch and blowing a bugle! And you can do it with either sex!” Eskridge notes that there was an embarrassed silence, and then bill for decriminalization was passed. All the battles are not now won; Eskridge writes, “The state can no longer legislate gay people as outlaws, but neither must it treat sexual variation as completely benign or neutral… The United States has not become a nation of moral liberals generally, and certainly not as regards homosexuals.” The current controversies are over gay marriage or partnership agreements, and the controversies rage, but at least the era of legal persecution for the act of sodomy itself is over.
Dishonorable Passions: Sodomy Laws in America, 1861-2003
(Viking Adult; May 1, 2008; ISBN-10: 0670018627)
Available at: Amazon.com / Amazon UK
© 2008 Rob Hardy. All rights reserved. Content may not be copied or used in whole or part without written permission from the author.
