Sodomy Laws

Sodomy laws, or more accurately, antisodomy laws, are statutes that prohibit sodomy. The term sodomy refers generally to modes of sexual intercourse involving the anus or body parts other than the penis or vagina. More specifically the term refers to male anal intercourse with another male, although the term is sometimes enlarged to refer to anal intercourse between males and females, males and animals, or any sexual act that is not heterosexual genital intercourse. The term sodomy derives from the name of the town Sodom, described in Genesis as a place of careless sin and deep lack of hospitality. In the Bible God destroyed Sodom and Gomorrah because their residents threatened to rape the angels visiting Lot. Although as David F. Greenberg (1988) observes, there is no connection between biblical passages about Sodom and Gomorrah and the sexual acts now called sodomy; the name of Sodom was belatedly transposed into a term referring to anal intercourse between men. The term sodomy meaning male intercourse with males first appears in English in the late thirteenth century.

HISTORICAL DEVELOPMENT

The history of laws proscribing anal intercourse between men or between members of a heterosexual couple is somewhat varied. Some cultures, such as ancient Mesopotamia, did not consider homosexuality or sexual variations at all. The Code of Hammurabi, one of the earliest extant collections of laws (c. 1780 bce), does not mention male-male sexual practices. Ancient Assyria (1450–1250 bce) punished sodomy with castration: "If a man has lain with his male friend and a charge is brought and proved against him, the same thing shall be done to him and he shall be made a eunuch." Under the Vendidad (c. 250–650), the Zoroastrian collection of laws, male homosexuality was understood as an effect of demons: "The man that lies with mankind as man lies with womankind, or as woman lies with mankind, is the man that is a Daeva [demon]; this one is the man that is a worshipper of the Daevas, that is a male paramour of the Daevas."

In ancient Greece homoerotic relationships formed the basis for social ties, especially between older and younger men. The Greeks had no specific term for homosexuality or sodomy because the gender of sexual partners did not mean the same thing for the Greeks as it does for early twenty-first-century North American and Europeans. Pre-Christian Rome had a similar social system as the Greeks in which relationships between men were tolerated. The emperor Nero (12–41) is reported to have publicly married several male partners. Emperor Hadrian's (76–138) preference for men was also well known and tolerated. What Romans did not so easily tolerate was males who played the woman's part in homosexual relations. Caesar Augustus (63 bce–14 ce) punished such male effeminacy in his law treating adultery.

The late Roman Empire finally promulgated the first European law openly prohibiting sodomy in 390. The law was part of a code of laws set forth by Emperor Theodosius (c. 345–395), who was under the influence of the Christian Church. At that time some powerful men in Rome were eunuchs or were homosexual. These men opposed the church, which in turn used scripture to disadvantage its enemies. The growing influence of a Christianity that had imported Old Testament prohibitions and that understood sexual pleasure as contrary to virtue made sexual behaviors easy targets for prohibition.

The Byzantine emperor Justinian (c. 482–565) outlawed homosexuality in 533 in the Justinian Code. As in Augustus's earlier prohibition, homosexual acts were linked to adultery. Other European cultures only later followed Rome's lead. For the most part, however, the church was primarily responsible for defining homosexual acts as sins. The church's policy was defined by Augustine (354–430), who, following the apostle Paul, determined that sexual pleasure was permissible only as procreation within marriage. Because homosexuality, as with adultery, was a sin, its punishment was penance imposed by the church rather than by a secular authority.

Although through the Middle Ages the church defined sodomy as a matter of sin rather than as a crime, sexual transgressions of priests finally catalyzed the first secular laws against homosexual sex. In the twelfth and thirteenth centuries, the church itself became less tolerant of its priests' lack of celibacy, particularly of their marriages and mistresses. When their heterosexual dalliances ceased, some priests became more interested in homosexual relations with their brethren. In the eyes of the rising class of bourgeois merchants, sexual excess of any kind became associated with a decadent feudal aristocracy in league with the church. As a part of his power struggle against the Catholic Church, Henry VIII (1509–1547) devised the first English law prohibiting sodomy in 1533: "Forasmuch as there is not yet sufficient and condign punishment appointed and limited by the due course of the Laws of this realm, for the detestable and abominable Vice of Buggery committed with mankind or beast," a crime punishable by hanging. Henry's law defines buggery as both male homosexual anal intercourse and bestiality. Because Henry's antibuggery law was linked to his war with the Catholic Church, the law was repealed whenever a Catholic monarch, such as Queen Mary, took power in England. With the Protestant Elizabeth I (r. 1558–1603), however, the statute was instituted for good and became the basis for all such laws in England's many colonies.

The rest of Europe continued with church law, although Italy had also made sodomy a capital crime that was pretty much ignored in daily life. After the French Revolution in 1789, sodomy was omitted from the penal code, and again from the code adopted in France in 1810. The basic concepts of the 1810 code also became the basis for much of the law in Spanish South America. European traders and colonizers found that in China and Japan, there were no prohibitions against male homosexual relations.

Fears about moral laxity believed to have instigated the French Revolution spurred the English aristocracy into a campaign against vice in the nineteenth century. Joined with more general puritanical beliefs about the sinfulness of pleasure, this attitude formed the basis for legal prohibitions against sodomy and homosexuality in the United States. Just as it had been in England, the colonies made sodomy—considered an infamous crime against nature—a capital crime, though after the Revolutionary War (1775–1783), most states eliminated the death penalty for such behavior and usually did not prosecute people. State laws, which followed English prohibitions against sodomy, were based on scriptural prohibitions and considered sodomy both unnatural and a crime against God.

Until the nineteenth century, when the medical establishment became interested in sexual behavior and began to scientifically study various sexual phenomena such as prostitution, laws governing sexual behavior persisted but did not loom large in the public imagination. With the increasing visibility of sexology in the late nineteenth century and psychoanalysis slightly later, the issue of homosexuality, and more specifically the act of anal intercourse, became the object of some public attention, especially when Oscar Wilde (1854–1900) was tried and convicted of this crime in England in 1895. As public cultures shifted from a religious to a scientific basis, it became less certain that sexual behaviors were unnatural. If anything, this uncertainty seemed to make sodomy laws all the more necessary. By 1960, all states in the United States had adopted legislation criminalizing sodomy.

THE BATTLE OVER DECRIMINALIZATION

At the same time that the legal codes of states criminalized sodomy, legal scholars suggested that sodomy should be decriminalized. The American Law Institute's Model Penal Code of 1955 did not include sodomy, though it is certainly the case that states did not immediately follow the model's lead. Only Illinois removed sodomy from its criminal laws in a 1961 revision without much comment from anyone. Before the burgeoning awareness created by gay and feminist rights activists in the late 1960s, however, modernization of penal codes eliminated sodomy as a crime in twenty-three other states, starting with Idaho and Connecticut.

Such laws were the obvious place for gay rights activists to begin their work. In California, New York, Minnesota, and the District of Columbia, gay rights movements worked to persuade state legislatures to repeal their sodomy laws. Once the issue of gay rights entered the foreground, it sparked resistance from conservatives and others who might not otherwise have paid attention to legal reform. Starting a battle about rights ended up producing a battle about what was morally correct, natural, and culturally desirable. Sodomy laws became one symbol of a war of beliefs and attitudes about government, privacy, morality, and family values. The side opposing sodomy statues argued that individuals have a right to express their sexuality with another consenting adult in private. The side wishing to retain such laws argued that it is the government's job to enforce public morality defined as the beliefs of the majority. The latter kind of appeal resonates with previous centuries' confluence of religion and law. In California the public campaign to repeal the sodomy law succeeded, but by a margin of only one vote in the legislature. New York, Minnesota, and the District of Columbia did not repeal their laws until after 1980.

With the increased visibility of a homosexual minority as well as the revitalized religious fundamentalist movements in the 1970s and 1980s, a battle over values began in the United States that continued into the early twenty-first century. Law is only one place where such battles are joined. As some states continued the movement toward legal reform and modernization, other states where religious lobbies were stronger passed new laws outlawing homosexual behavior. In 1974 Kentucky passed a statute outlawing anal intercourse between men (but not between heterosexual partners). Three years later Arkansas passed a similar law. Because the Kentucky law singled out male participants, it was declared unconstitutional by the Kentucky Supreme Court.

The advent of AIDS in the 1980s galvanized fears about homosexuality and again made sodomy laws a matter of public interest. This produced what is perhaps the most famous of two key contemporary cases treating the constitutionality of states' antisodomy legislation. Bowers v. Hardwick (1986) tested the constitutionality of Georgia's antisodomy law, but it also represented a case of extremely invasive police action. An undercover police officer had targeted Michael Hardwick, a bartender in an Atlanta gay bar. Going to Hardwick's house the officer was admitted by one of Hardwick's friends who thought the officer was another friend. The officer caught Hardwick in the middle of consensual sexual activity with another male and arrested him under the Georgia antisodomy statute, which punished sodomy by up to twenty years' imprisonment. The Georgia statute defined sodomy as sexual acts involving the mouth or anus of one person with the genitals of another. Although the state dropped the charges, Hardwick brought the case in order to have the courts determine whether the statute itself was an unconstitutional abridgment of individual rights under the Fourteenth Amendment of the U.S. Constitution.

The U.S. District Court dismissed Hardwick's case, saying that he presented no case to be adjudicated. The Court of Appeals, however, determined that the statute violated a homosexual's right to privacy under the Ninth Amendment of the U.S. Constitution and the due process clause of the Fourteenth Amendment. The attorney general of Georgia, Michael J. Bowers, appealed the Court of Appeals decision to the U.S. Supreme Court, which ruled on the case in 1986. A divided court found that "the due process clause of the Fourteenth Amendment does not confer any fundamental right on homosexuals to engage in acts of consensual sodomy."

Despite what seemed to be a negative decision by the Supreme Court, other states continued to repeal or change their sodomy laws. Some states, such as Nevada, altered a gay-only sodomy law (a law that proscribed sodomy only between same-sex couples) to a law prohibiting public sexual activity. The U.S. Congress, which makes the laws for the District of Columbia, finally repealed the district's sodomy law in 1995. Rhode Island's antisodomy law was not repealed until 1998.

STATUS IN THE EARLY TWENTY-FIRST CENTURY

As of 2006 thirteen states still had antisodomy laws on the books, including Texas and Michigan, though a 2003 decision by the U.S. Supreme Court, Lawrence v. Texas, suggests that state antisodomy laws are unconstitutional. The Lawrence case involved the arrest of two adult males who were having consensual sex in their home, an arrest made possible by a Texas antisodomy statute that made engaging in "'deviate sexual intercourse' with another individual of the same sex" a misdemeanor. The Supreme Court held that the Texas law "violated the adults' vital interests in liberty and privacy protected by the due process clause of the federal Constitution's Fourteenth Amendment." The Court also determined that the statute "sought to control a personal relationship." It declared further that "the state could not demean the adults' existence or control their destiny by making their private sexual conduct a crime, as the adults' right to liberty under the due process clause gave them the full right to engage in their conduct without intervention of the government."

The Supreme Court's decision in Lawrence v. Texas makes it difficult for those states that still have antisodomy laws to prosecute offenders. Even though one state's statute may be declared unconstitutional, other states with different statutes covering a similar crime may continue enforcing their laws until the laws are challenged or changed by their legislatures. This was the case, for example, in Kansas until the Kansas Supreme Court (in State of Kansas v. Limon) declared the Kansas sodomy statute unconstitutional. States may still prohibit sodomy in certain kinds of circumstances: with minors, in public, without the consent of both parties. But the kinds of nonreproductive sexual activity often outlawed by sodomy laws have become a part of the behaviors and rights that the Supreme Court deems protected by the Fourteenth Amendment.

This decriminalization in the United States followed the more liberal policies that were already in place in Europe. There are no antisodomy laws in Europe, including in the Vatican City. In the Caribbean and South America, there are still sodomy laws in Nicaragua, Jamaica, and Trinidad and Tobago. In East and South Asia, antisodomy laws are more prevalent, existing still in Afghanistan, Bangladesh, Fiji, India, Malaysia, Myanmar, Nepal, New Guinea, Pakistan, Sri Lanka, Uzbekistan, and Samoa. Afghanistan and Pakistan still have the death penalty for the crime, whereas punishments in other countries range from three years to life in prison. Sodomy is still illegal in most African countries, with the notable exceptions of Chad, the Congo, Gabon, Ivory Coast, Madagascar, Mali, Niger, Rwanda, and South Africa. The death penalty for the crime persists in Nigeria, Mauritania, and the Sudan, whereas other countries punish sodomy with prison terms of between three years and life. Only in Jordan and Israel is sodomy legal in the Middle East, whereas in all other countries it is illegal and in several (Iran, Saudi Arabia, United Arab Emirates, and Yemen) it carries the death penalty.

Laws regulating the private consensual sexual behavior of adults often seem still to be linked to religious beliefs. However, as a survey of such laws around the world shows, there is not always a correlation between state religions and sodomy laws nor does one religion seem to have a stricter prohibition than any other. The presence of antisodomy laws may reflect cultural anxieties about hierarchy and order or insecurities about family stability, because most of the extant antisodomy statutes are in less industrialized countries. The presence of antisodomy laws may also reflect as well the status of women in these countries.

BIBLIOGRAPHY

Bowers v. Hardwick, 478 U.S. 186, 106 S. Ct. 2841 (1986).

Burgwinkle, William E. 2004. Sodomy, Masculinity, and Law in Medieval Literature: France and England, 1050–1230. Cambridge, UK: Cambridge University Press.

Foucault, Michel. 1978. The History of Sexuality. Vol. 1: An Introduction, trans. Robert Hurley. New York: Pantheon.

Greenberg, David F. 1988. The Construction of Homosexuality. Chicago: University of Chicago Press.

Halperin, David M. 1990. One Hundred Years of Homosexuality. New York: Routledge.

Lawrence v. Texas, 539 U.S. 558, 123 S. Ct. 2472 (2003).

Leonard, Arthur S. 1993. Sexuality and the Law: An Encyclopedia of Major Legal Cases. New York: Garland.

State of Kansas v. Limon, 122 P. 3d 22 (2005).

                                                      Judith Roof