We Colonials: Sodomy Laws in America
Richard Carson RJC/Reuters
On the June day in 2003 when the Supreme Court announced its landmark decision in Lawrence v. Texas holding state sodomy laws to be unconstitutional, I was working in the library of the Kinsey Institute in Bloomington, Indiana, as part of a summer workshop for historians of sexuality. This was an appropriate place to be at that particular moment. Dr. Kinsey, after all, had been in his day a fierce critic of those laws. And the setting was even more fitting because our party of historians included several who--led by George Chauncey--had written an amicus brief in the case that was influential in Justice Kennedy's majority opinion. So when one of our group checked the headlines and then alerted the rest of us that the Court had announced its decision, we all clustered excitedly around a computer monitor, checking the available news. A joint cheer went up. But that was really it. Minutes later, we shuffled back to our tables and quietly resumed our research.
That the moment seemed both earth-shattering and surprisingly anticlimactic has much to do with the nature of the sodomy laws, which, for LGBT Americans, have simultaneously meant so much and so little. I suspect that no one in our predominantly queer group thought it even remotely possible that they might be arrested (under these basically unenforced laws) for consensual sexual activity with an adult member of the same sex. Yet we also understood the significance of the Court's decision as far more than symbolic politics. That anal and sometimes oral sex were, in 2003, still illegal in thirteen states had been used to justify a much broader array of discrimination against us. It was as presumptive criminals that gays and lesbians were kept out of the military; as presumptive criminals, gay and lesbian teachers lost their jobs, and parents lost custody of their children.
In Dishonorable Passions, William Eskridge offers the first comprehensive history of sodomy law in America. Eskridge is a historian and a law professor at Yale who also wrote a brief that was cited repeatedly in Kennedy's opinion, and the energy in the book barrels toward Lawrence. It's hard, really, to imagine how it could be otherwise, especially as the Lawrence decision provides Eskridge with a gay civil rights story that has a beginning and an end (such stories being fewer and farther between than you might realize). In writing from the vantage point of Lawrence and gay civil rights, Eskridge treats sodomy in a way that mirrors our culture's treatment of sodomy more generally. Both make it fundamentally about homosexuality. But sodomy, as Eskridge told the Court--and also tells readers--technically isn't about homosexuality at all. Rather, it's about sex without procreative possibility (which can be hetero as well as homo sex). Because sodomy has come to be seen as emblematic of homosexuality, however, much of the career of sodomy law in modern America has been a command performance as something other than what it really is. And that is what allowed historians--called upon to show that policing homosexual behavior was not, in fact, the time-honored tradition conservatives claimed it to be--to assume center stage in Lawrence. All those years in the archives: who knew they would matter so much?
Take the scholarship on the colonial era, with which Eskridge begins his account. During the 1600s, the American colonies adopted sodomy (or "buggery") laws that prohibited bestiality as well as anal sex between either a man and a woman or between two men. (New Haven Colony was rare in including sexual acts between women as part of its sodomy prohibition.) Punishment--which included death--was draconian, but the laws were very rarely enforced. Historians know of less than ten executions for sodomy throughout the seventeenth century. Of those few, almost all involved assault or sex with animals. These laws were not directed in any particular way toward homosexuality. Indeed, they couldn't be--the idea that there was a type of person who was a homosexual didn't even emerge until the late nineteenth century, a result of urbanization, industrialization and the development of medical/sexological discourse. But while these laws weren't about discouraging homosexuality per se, their architects sought to regulate sexual behavior more generally by steering sexuality toward procreative marriage; protecting women, children and weaker men from assault; and maintaining public order and decency.
Eighteenth-century Americans were even less likely to police sodomy than their seventeenth-century forebears. There is only one known capital case during the eighteenth century--a slave named Mingo for "forcible buggery"--and after independence all thirteen states revoked the death penalty for sodomy convictions, although all adopted laws criminalizing anal sex (whether the recipient was male or female, adult or child, man or beast). Those laws were maintained into the nineteenth century, when they were used in cases in which the sex enacted was either violent or extremely public. Immigrants and men of African descent were most commonly charged with the crime. But the general pattern was nonenforcement. "In practice," Eskridge writes, "police rarely enforced sodomy laws against anyone before 1880, even when such illegal activities were notorious in the community."
This pattern began to shift at the beginning of the twentieth century. Loosening morals and new patterns of urban sociability prompted officials to expand sodomy laws to include fellatio, which most states did by the 1920s. If more kinds of behavior counted as sodomy, more people could be vulnerable under the law, and so more aggressive policing ensued. Women as well as men were prosecuted for fellatio, for example, and a few states also included cunnilingus within the purview of the "crime against nature." While sodomy arrests during these years increased tenfold as compared with the late nineteenth century, the policing of sodomy was still modest relative to other sexual offenses--adultery, fornication, prostitution and rape were the sexual crimes that most absorbed the resources of urban police forces. Moreover, until the mid twentieth century, the vast majority of sodomy arrests were for rape-like offenses: assault of a man or a woman, or sexual activity with a child (assault by definition, since children cannot legally consent).
One conceptual weakness of the first part of Dishonorable Passions is that it drifts from a consideration of sodomy to early gay life more generally. This is in part a result, I suspect, of the way that the initial chapters are informed by Eskridge's Gaylaw, published in 1999. That book traced the "history of state rules relating to gender and sexual non-conformity," a topic that is far broader than sodomy alone. So in Dishonorable Passions there are vignettes, for example, about Walt Whitman, the "New Women" (Jane Addams's partnership with Mary Rozet Smith and Margaret Mead's relationship with Ruth Benedict), as well as the infamous gender outlaw Alice Mitchell, boarding school "smashes," the operation of vagrancy law against "fairies," the sterilization of suspected homosexuals and early butch-femme bar culture. Readers will find this material very interesting, but its relationship to sodomy law is fairly loose.
Eskridge's broad approach is less of a problem for the period when sodomy began to take on its modern hue and was more thoroughly homosexualized. McCarthyist anxieties about homosexuality, sex-crime panics and the advent of the vice squad led to a midcentury boom in sodomy arrests, as many as 80 percent of which may have involved homosexual offenses. As further reflection of midcentury homophobia, consensual homosexual sodomy emerged for the first time as a major regulatory concern. Accompanying this new focus on homosexuality, many states revised penal codes to allow for harsher punishment (not as harsh, of course, as during the colonial period). In most states, conviction for sodomy meant at least five and as many as fifteen years in prison. In California, it could mean a life sentence.
No sooner had this legal regime been put up than it began to be pulled down (in the longue durée of history, antihomosexualism may yet turn out to be something of a blip). But here, too, the story is probably not what you think: reform did not come from a nascent gay rights movement. Not at first. Rather, it was pushed by the legal community, influenced by Kinsey's findings about what Americans actually did in bed. Some 95 percent of Americans were technically lawbreakers--a situation that, if not remedied, might lead to the same kind of disregard for law that had marked the Prohibition era (as well as blackmail and police corruption). When the American Law Institute ("the grand assembly of law reform") approved its Model Penal Code (MPC) in 1962 to guide state lawmakers, it dropped consensual sodomy from the code. Public solicitation for sodomy was criminalized, however--this was the "MPC compromise." Nearly simultaneously, as part of its updating of its criminal code, the State of Illinois became the first to decriminalize consensual sodomy. Lawmakers there were able to avoid opposition by certain powerful groups, such as the Catholic Church, by agreeing not to liberalize abortion laws as part of their reform effort.