There is a long and well-documented tradition of states regulating private sexual acts. In ancient Babylon the code of Hamurabi (cir. 1860 B.C.E.) prohibited adultery and incest. The code of the Hittites (cir. 1650 B.C.E.) also outlawed certain types of bestiality, and the code of the Assyrians (cir. 1075 B.C.E.) required castration for a man who engaged in intercourse with his ‘‘brother-in-arms.’’ Proscriptions of bestiality and what would now be termed homosexual behavior indicate that ancient civilizations were interested in regulating sexuality for reasons beyond ensuring parentage and guarding inheritance.
The foundation for laws prohibiting sodomy in Western states is the Bible. The word ‘‘sodomy’’ was first created in the eleventh century and is drawn from the story of the fall of the city of Sodom in the book of Genesis (19: 1–26). Scholars disagree over the interpretation of this passage; with some citing the sin of Sodom as ill treatment and inhospitality rather than the homosexual behavior with which Sodom became associated.
The principle biblical basis for the condemnation of sodomy is the book of Leviticus (18:22 and 20:13), which requires death for men who ‘‘lie with a male as those who lie with a female’’ for committing an ‘‘abomination.’’ The translation and context are disputed, but from early in its history the Catholic Church has maintained that homosexual acts are sinful.
In medieval England, marriage, divorce, and sexual morality were matters for the Church and handled by ecclesiastical courts. This changed when King Henry VIII broke away from the Catholic Church, abolishing the ecclesiastical courts and subsuming their jurisdiction within the crown courts. This made previously religious offenses into crimes against the state, and in 1533 Parliament passed an act making sodomy, or ‘‘buggery,’’ a capital crime.
The English colonies in America either adopted statutes forbidding sodomy or simply received the Common law under which sodomy was a crime. Colonial sodomy laws frequently contained biblical justifications or quotations, and there were a number of sodomy prosecutions in early America.
The precise definition of sodomy in English law covered not only anal intercourse between a man and either a woman or a man but also sexual intercourse between a man and an animal; consensual anal intercourse, even between husband and wife, still violated the ‘‘buggery’’ statute. After the revolution, the United States continued with the English understanding but gradually expanded the range of sexual acts that fell under the sodomy laws. The language used in sodomy laws was often vague and frequently included references to acts that were ‘‘unnatural’’ and in the absence of a clear definition were used as justification for the laws to cover acts outside of the English definition of sodomy. Toward the end of the nineteenth century states began to more clearly define the range of acts covered by the sodomy statutes, and whereas the precise definitions varied from state to state, they could be expanded to cover oral intercourse, both heterosexual and homosexual, mutual masturbation, and the use of objects for sexual gratification.
Punishments for conviction of sodomy varied. The death penalty was the original punishment, although evidence suggests that few people were executed for sodomy in later colonial and United States America. Lengthy jail sentences were not uncommon throughout the nineteenth and twentieth centuries. Some eugenic sterilization laws allowed for the involuntary sterilization of persons found guilty of violating sodomy laws. In the mid-twentieth century a number of states viewed same-sex sodomy as evidence of a mental condition and would institutionalize persons involved in an attempt to rehabilitate. In the late twentieth century, a sodomy conviction might result in having to join a sex offenders’ register. Having a sodomy conviction was also seen as an indication of immorality and could lead to dismissal from the armed forces or civil service, loss of the right to vote or hold a drivers’ license, and deportation in immigration cases.
In the mid-twentieth century legal opinion in the United States began to push for an end to the criminalization of private consensual sodomy: France had done so in 1810 and was joined much later by England in 1967. In 1955, the American Law Institute published a Model Penal Code that did not criminalize consensual sodomy in private. Whereas a number of states used this as a template, most retained or expanded existing laws criminalizing consensual sodomy, with only Illinois and Connecticut decriminalizing consensual sodomy by 1970.
In Griswold v. Connecticut, 381 U.S. 479 (1965), the U.S. Supreme Court found that the Constitution created a right of privacy that precluded state regulation of the intimate activities of married couples, in this case the use of birth control. The Court made it clear in Eisenstadt v. Baird, 405 U.S. 438 (1972), that this right extended to unmarried couples.
The right of privacy described in Griswold and its progeny placed a question mark over the constitutionality of sodomy laws. Some states responded by either creating a marital exemption from their sodomy laws or through limiting them to criminalize only homosexual sodomy. Other states repealed their sodomy laws, or they were found to be in violation of the privacy provisions of their state constitutions. The Court faced the issue in Bowers v. Hardwick, 478 U.S. 186 (1986), a case involving consensual homosexual sodomy in a private bedroom. In a five-to-four decision, the Court ruled that the Constitution did not grant a right to engage in consensual sodomy and pointed both to the history and traditions of the states and the fact that twenty-five states still had sodomy laws.
The Court changed its position and invalidated a sodomy statue with the due process provision of the fourteenth amendment in Lawrence v. Texas, 539 U.S. 558 (2003), noting that only thirteen states retained consensual sodomy laws of which four only criminalized homosexual conduct. After Lawrence, the focus for laws criminalizing consensual sodomy has shifted to arguments over what constitutes a private place for the purposes of constitutional protection.
GAVIN J. REDDICK
References and Further Reading
Cases and Statutes Cited
See also Boy Scouts of America v. Dale, 530 U.S. 640 (2000); Don’t Ask, Don’t Tell; Search (General Definition); Felon Disenfranchisement; Gay and Lesbian Rights; Homosexuality and Immigration; House Un-American Activities Committee; Lambda Legal Defense and Education Fund; Megan’s Law (Felon Registration); Roemer v. Evans, 517 U.S. 620 (1996); Same-Sex Adoption; State Constitution, Privacy Provisions; Stonewall Riot; Substantive Due Process; Victimless Crimes