A short history of the long road to decriminalizing sexuality in the US

I define “homophobia,” more often referred to as “heterosexism” today, as the overarching system of advantages bestowed on heterosexuals. Heterosexism is the institutionalization of a heterosexual norm or standard, which establishes and perpetuates the notion that all people are or should be heterosexual, thereby privileging heterosexuals and heterosexuality, and excluding the needs, concerns, cultures, histories, and life experiences of lesbians, gay males, bisexuals, asexuals, trans, and intersex people.

Many times blatant and at times subtle, heterosexism is oppression by design and intent, and also by neglect, omission, erasure, and distortion.

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This piece specifically explores the history of same-sex sexuality and relationships in the West and is not necessarily representative of non-Western cultures. In addition, historical conditions and legislation related to same-sex sexuality is often quite different from social assumptions, biases, and legislation related to gender diversity and expression.

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Despite the fact that we use a variation of the LGBTQ+ acronym within the movement for rights and support, we cannot assume that such support is equivalent for all.

Members of the transgender community continue to suffer from extreme forms of violence daily. The political right is continuing to scapegoat transgender people for many of the ills of the nation, as well as stereotype them as predators or mentally ill.

We see this clearly in the swaths of anti-trans legislation banning trans people from school sports, from entering public facilities that align with their gender identities, and from receiving gender-affirming care. In addition, media inclusivity is not equivalent and certainly not as high for trans people as it is for lesbian, gay, and bisexual folks.

Therefore, my discussion centers primarily on a history of attitudes and legislation related to same-sex sexuality.

Do as the Romans do

In July 1986, the United States Supreme Court reaffirmed in a 5-4 vote in Bowers v. Hardwick the constitutionality of a Georgia anti-sodomy law dating back to 1816. This decision upheld the Georgia law that made “any sexual act involving the sex organs of one person and the mouth or anus of another” a felony punishable by up to 20 years imprisonment.

Although this law and similar laws in several other states could have been conceivably applied to other-sex couples, they have primarily been used to intimidate and harass same-sex couples and stop them from participating in private consensual sexual activities.

Adding his voice to the court’s majority opinion, then Chief Justice Warren Burger used precedent as justification:

“Decisions of individuals relating to homosexual conduct have been subject to State intervention throughout the history of Western Civilization. Condemnation of those practices is firmly rooted in Judaeo-Christian moral and ethical standards. Homosexual sodomy was a capital crime under Roman law….To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.”

Religious, philosophical, social, and political attitudes set the groundwork for restrictive laws enacted toward the latter stages of imperial Roman civilization. Roman law was used as a basis for Medieval Canon Law (the law of the Catholic Church). Canon Law, along with Roman law, has been used as the cornerstone for punitive civil laws to the present day.

Although not always strictly enforced, laws doling out punishments ranging from floggings to banishment to mutilation to death have existed at various times in most Western nations. All of these statutes applied to males, though females have not always been exempt from their authority.

A climate of intolerance

Same-sex love and sex was accepted between males during Classical Greek civilization. Freeborn males could engage in sexual relations with a younger male and enslaved males. However, in the 9^th century B.C.E., the Spartan lawmaker Lycurgus made it a felony crime punishable by banishment or death for a man to desire another man in mere lust.

Later, in 346 B.C.E., Greek law harshly forbade male prostitution, not out of an aversion to homosexuality per se, but rather out of concern that if a man or boy could sell his body, he might also sell out the interests of his community to any one of several warring states.

Though ancient Greece and later Rome were relatively tolerant of same-sex sexual practices between males, around the 4^th century C.E., attitudes changed as Roman civilization became increasingly deurbanized, with greater totalitarian controls over personal life.

During the declining years of imperial Rome, philosophical, political, and social forces merged to establish a climate of intolerance. Christianity (with its strict pronouncements against same-sex sexuality), became the official state religion under the rule of Constantine I. In this climate, lawmakers enacted statutes that severely restricted same-sex activities.

The edicts of Constantine and Constans of 342 C.E., and later the law of 390 C.E. – sponsored under the tripartite rule of Theodosius, Valentinian II, and Arcadius – prescribed death to men engaging in same-sex sexuality, especially in the case of prostitution:

All persons who have the shameful custom of condemning a man’s body, acting the part of a woman’s, to the sufferance of an alien sex (for they appear not to be different from women) shall expiate a crime of this kind by avenging flames in the sight of the people (Theodosian Code).

These laws, however, were rarely enforced, and male prostitution continued to be taxed into the 6^th century.

Abominable and impious conduct

These laws are important because they were incorporated into the Corpus juris civilis – the extensive collection of Roman law instituted under the sponsorship of Emperor Justinian in the 6^th century – which later was used as the basis for canon and secular law in Europe, England, and what became the United States.

The Institutes is the name given to the section within the Corpus juris civilis that prescribes death for any person who is found guilty of adultery, or of engaging in “works of lewdness with their own sex.”

To understand the character of the Roman system of values, it is useful to explore the context in which these anti-same-sex statements arise. Also found in the Institutes under the title “The Rights of Persons” are laws designed to regulate and advance the accepted Roman practice of slavery.

It read in part: …slavery is the constitution of the law of nations, by which the individual, contrary to nature, is subject to the mastery of another….For in almost all nations the power of life and death was exercised by the masters over their slaves, and whatsoever was acquired by the slave belonged to the master.

In addition to the Institutes in the Corpus juris civilis, Emperor Justinian issued two condemnations of his own against the practice of same-sex sexuality. His Novella 77 of 538 called on men engaging in same-sex sexuality to change their ways and singled them out as the cause of the evils of society:

For because of such crimes there are famines, earthquakes, and pestilences; wherefore we admonish men to abstain from the aforesaid unlawful acts, that they may not lose their souls (Novella LXXVII).

Six years later, in 544, following a devastating plague in Constantinople, Justinian issued Novella 141, demanding his citizenry resist evil temptation.

Same-sex sexuality in particular was: …that abominable and impious conduct deservedly hated by God. We speak of the defilement of males which some men sacrilegiously and impiously dare to attempt, perpetrating vile acts upon other men…. If, with eyes as if were blinded, we overlook such impious and forbidden conduct, we may provide the good God to anger and bring ruin upon all – a fate which would be but deserved (Novella CXLI).

The fall of the Roman Empire signaled a change in the treatment of minoritized citizens. Though certainly not a golden age of pluralism, the 7^th to the middle of the 12^th centuries was an era (except in Spain) of relative calm for people who engaged in same-sex sexuality and other minoritized people.

In Spain, however, the Visigoths ruled around the year 650, and they passed stringent laws prescribing castration for men found engaging in sexuality with one another.

The latter part of the 12th Century, however, ushered in a sustained period of universal intolerance throughout Europe. Minoritized citizens lost ground with the rise of new secular states with powerful central governments, as well as with the standardization of Catholic Church dogma. Both Church and State supported Justinian’s laws as the basis for widespread legislation and codes dictating conformity.

The Camaldolese monk, Gratian, is generally considered the one who formulated and standardized Canon doctrine. In his Decretum of 1140, Gratian formalized the concept of “Natural Law,” and he quoted the Roman Augustine in his condemnation of same-sex sexuality:

Acts contrary to nature are in truth always illicit, and without doubt more shameful and foul, which use the Holy Apostle as condemned both in women and in men, meaning them to be understood as more damnable than if they sinned through the natural use by adultery or fornication (Corpus iuris canonici, 1144).

The Decretum of Gratian became the fundamental and most widely accepted work of Canon law until the early 20^th century, and it influenced many civil laws that were to come. One of the first of these laws to explicitly refer to same-sex sexuality in both males and females was included in the French code of 1270 in the section titled Li Livres di justice et de plet (The Book of Justice and of Pleas, in old French):

1.     He who has been proved to be a sodomite must lose his testicles. And if he does it a second time, he must lose his member, and if he does it a third time, he must be burned.

2.     A woman who does this shall lose her member each time and on the third must be burned.

In the original old French, perdre member in these passages have come to be interpreted as loss of the penis, clitoris, and/or arms and legs.

In 13^th century Spain, same-sex sexuality carried a penalty of castration and “lapidation” (execution by stoning). This was changed under the regime of Ferdinand and Isabella in 1479 to execution by burning at the stake.

Liberty, equality, fraternity

The earliest civil law dealing specifically with same-sex sexuality in England dates from 1533 under the rule of King Henry VIII, who stated that “there is not yet sufficient and condign punishment” for this “detestable and abominable vice.” In that year, the English Parliament classified buggery (a term used to denote same-sex sexuality, bestiality, and specifically anal intercourse) as a felony crime. Penalties included loss of property and death.

Then, in 1564, Queen Elizabeth declared the law a permanent part of English statutes; the death penalty for same-sex sexuality between men was not repealed until 1861. The law was used as the basis for sending several men who frequented “Molly Houses” (residences in England where men met for companionship and sex) to their deaths as early as the 1700s.

This English statute, like similar ones in Scotland, on the European continent, and in some Latin American countries, was drafted by legislators who had backgrounds in both Roman law and Christian doctrine. Records from the times document the executions of large numbers of men and women.

For example, the Spanish inquisition executed several dozen men by fire, 14 men were put to the torch in Mexico City in 1658, 60 men were executed in Holland in 1730-31, 60 were hanged in the British navy from 1703-1829, and 77 were sentenced to death in France between 1565-1640.

Change was stirring in the air in the 18^th century. “Liberty, Equality, Fraternity” became the battle cry of those attempting to overturn the ruling French aristocracy, which would carry over into the sexual realm as well. Following the revolution of 1789, the death penalty was removed from all French laws dealing with sexuality.

In 1810, after the completion of a new criminal system called the Napoleonic Code, all penalties for consensual adult sexual activities were eliminated. Though the expression of same-sex sexuality remained subject to social disapproval, the new French code was a watershed that would have the effect of liberalizing legislation in other countries under French influence.

This was particularly true in Belgium, much of Italy, Spain, Portugal, Romania, and Russia, as well as several Latin American countries.

This did not, however, extend to countries outside the French sphere, including Prussia, the Scandinavian states, and after 1871, Germany, which united under the Prussian realm.

Russia, however, reinstituted laws punishing people engaging in same-sex sexuality with imprisonment for terms up to five years. After 1866, when Denmark abolished the death penalty for same-sex sexuality, Germany and the English-speaking common-law countries remained virtually alone in retaining harsh penalties well into the 20^th century.

Though England abolished the death penalty for same-sex sexuality in 1861, the Labouchere Amendment was instituted by Parliament under the reign of Queen Victoria in 1885. It created a new crime of “gross indecency with males in public or private,” which carried the punishment of imprisonment for up to two years. This law remained in effect until it was eliminated on July 27, 1967.

In Germany, Paragraph 175 from the 1871 German Penal Code was the law Adolf Hitler and his Gestapo chief Heinrich Himmler cited in the plan for the “relocation” and eventual extermination of thousands of suspected homosexuals.

The United States inherited much from England, including many of its laws concerning homosexuality and sodomy. Richard Cornish, a ship’s master, was the first man to be executed in the British colony of Virginia in 1624 for alleged homosexual sex with one of his stewards.

Another case involved John Alexander and Thomas Roberts of Plymouth, Massachusetts. In 1637, they were found “guilty of lude behavior and uncleane carriage one with another by often spendinge their seed one upon another.”

In 1649 in Plymouth, Massachusetts, Sarah White Norman and Mary Vincent Hammon became the first women in the English American colonies prosecuted for same-sex sexuality. They were convicted of “lewd behavior with each other upon a bed.” Mary was merely reprimanded since she was younger than 16 years of age. Sarah was ordered by the court to publicly confess her “unchaste behavior” with Mary, and she was warned against future transgressions. 

The earliest known case of a person put to death for same-sex sexuality in a territory that would become part of the United States was a Frenchman who was executed in St. Augustine, Florida by Spanish military authorities in 1566.

Penalties were not restricted to same-sex sexuality, but also applied to bestiality. For instance, one of the first of these cases dealt with William Hackett, an 18-year-old servant who was found copulating with a cow. After Hackett confessed, the cow was burned, and Hackett was hanged.

Another case involved Thomas Granger, aged 16 or 17, who confessed and was convicted of having sex with a mare, a cow, two goats, five sheep, and a turkey. The animals were burned, and on September 8, 1642, Granger was executed.

“Liberal” reformer Thomas Jefferson advocated for the elimination of the death penalty for perpetrators of sexual crimes, and in 1779 proposed instead:

Whosoever shall be guilty of Rape, Polygamy, or Sodomy with man or woman (or beast) shall be punished, if a man, by castration, if a woman, by cutting through the cartilage of her nose a hole of one-half inch at the least.

After the American Revolutionary War, all states passed anti-sodomy laws carrying various penalties, with most prescribing imprisonment. Pennsylvania, for example, mandated 5-10 years, New York 10 years, and Massachusetts 20 years.

Since that time, individual states created their own laws until the landmark 2003 Supreme Court decision in Lawrence v. Texas, which outlawed all remaining so-called state “sodomy” laws.

Though we certainly have a long way to go on our path toward full and unqualified sexual and gender liberation, we have certainly come a long distance. Great obstacles, however, remain in our path to achieving financial security, regardless of our sexuality and gender identities. We must continue fighting to have our history taught in American classrooms and to secure equity, safety, and full equality for LGBTQ+ people.

Approximately 64 countries still have laws criminalizing same-sex sexuality. May we continue to stand on the shoulders of all the proud activists, the known and unknown, who have come before and who have created a path for us to walk.

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