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Toward Legal Sense on Sodomy

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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. Eskridge shows how legislatures had to specifically incorporate fellatio or cunnilingus (and sometimes even masturbation) into sodomy laws if they wanted to prosecute such acts. 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. 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. 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.

Contempt for the majority of citizens

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The author, a Yale Law School professor, expresses his contempt for the majority of American citizens by arguing that the courts have the power to "amend" the U.S. Constitution by interpreting its broad language to include the freedom of homosexuals to commit sodomy and other crimes against nature, and the right of homosexual couples to the same benefits as married heterosexual couples. He does not cite any constitutional authority to support his argument that usurps from the people and their elected representatives the sole authority under Art. 5 to amend the constitution.

Art. 5 of the constitution provides that: "The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; * * * ".

Art. 5 is an essential element of the separation of powers in the constitution. It separates the power of the people from the power of the government, including the unelected federal judiciary. By ignoring the plain meaning of Art. 5 and 200 years of constitutional jurisprudence, the author expresses his contempt for the majority of Americans. The unarticulated major premise of his argument is the majority of American citizens are too ignorant or insensitive to amend the constitution, and that unelected judges, like the Guardians in Plato's Republic, know what is best for us. He is arguing for an "imperial judiciary".

The truth is that if homosexuals can persuade the majority of citizens, not a majority of unelected judges, that the constitution should protect their asserted freedoms and rights, the majority will amend the constitution to do so. American history proves that we are a just, tolerant, and decent people. But the burden of proof and persuasion is on the homosexuals, not on the majority of citizens. A "living constitution" really means that the majority of living citizens and their elected representatives, not a few judges, decide how and when to amend the constitution.

An important but disturbing vision

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This is an important, but disturbing book. To be sure, it contains a great deal of useful information, distilled from the author's earlier studies. It is safe to say that no other author could do this with such authority and precision.


In his earlier published books Eskridge had seemed to ally himself with the radical gay faction. Now, it seems, he has morphed into something like a social conservative.

Eskridge believes that, even after our remarkable legal progress, gays are being held back by formidable reserves of disgust and fear of social pollution. These stark terms, for which he offers little documentation, seem to me to go too far. Still a mass of reservations, all the more persistent for not being (often) avowed, linger among the general public. As Eskridge puts it, many have not been able to bring themselves to acknowledge that homosexuality is a b e n i g n variation. We can have all the legal advances anyone could possibly require without achieving this.

In a pivotal sentence (p. 382) Eskridge makes the following point. "Lawrence [the 2003 Supreme Court decision] should . . . be understood as a challenge for gay people. Recalling an old-fashioned conception of citizenship as entailing obligations as well as freedoms, Lawrence should stir LGBT people to commit themselves to families, communities, and institutions (including religious ones) from which they have been alienated because of sodomy laws, social stigma, and other disabilities."

I readily confess that I am one of those who has been so alienated. I don't see why I should now have to commit myself to a family or a religious institution in order to secure my full civil rights. Still, I would agree that it would help if substantial numbers of gay and lesbian people did so.

But how much would it help? The disgust that homosexuality evokes is a product of several layers of experience and ideology. Ultimately, it is religiously based, since the Bible presents toleration of homosexual behavior as a danger to the body politic. (Yes, I know that John Boswell and others have sought to erase the sting of these texts. For most religious people, however, the sting persists.) Then a wave of psychotherapy crested fifty years ago. Even though most psychiatrists have changed their tune, the notion persists that same-sex behavior is somehow abnormal. Finally, there was the AIDS crisis. Drugs are helping a great many HIV people to lead productive and rewarding lives. And yet, allowing for some monocausal exaggeration, gay people are centrally implicated in this disease, and they will continue to be so perceived.

In short the likely scenario is that in the long term gay and lesbian people will experience a kind quasipariah status. The laws that have been holding us back will finally be abrogated. Vicious name calling, of the sort that prevailed until recently, will be unfashionable. But still, for the foreseeable future, "virtually normal" will be the best we can claim.

The Right to Sex

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Eskridge Jr, William N. "Dishonorable Passions: Sodomy Laws in America, 1861-2003", Viking, 2008.

The Right to Sex

Amos Lassen

Long overdue on our bookshelves is a look at American sodomy laws and now that William Eskridge's "Dishonorable Passions" is published; we have that information right at our fingertips. Gay rights are the hot issue in our country right now but there is really nothing new about that. During the early periods of America--the colonial period and early statehood--sodomy was prohibited as a "crime against nature". Here was a country built on democratic ideals and it was telling its people what they could do in their private homes and behind closed doors. Even as late as the twentieth century homosexuals were labeled as degenerates and during the McCarthy era, many homosexual lives were splashed on the pages of the press and lives were ruined,
The laws prohibiting sodomy were bases on the English common law which took its impetus from a Christian Biblical interpretation of several small passages from the book of Leviticus. In 2003 the Supreme Court struck down these antiquated laws in the "Lawrence vs. Texas" decision. Finally it was no longer criminal for two consenting adults to practice the sexual relations that they chose.
Eskridge looks at how the laws which regulated sodomy from the decade of the 1930's were used as a legal tool for the denial of public assembly and jobs to homosexuals. But Eskridge does more than just look at the laws; he also includes legal discussions, personal stories and looks at the social history of the times. He brings in the stories of those targeted by the laws such as Margaret Mead and Walt Whitman and of those who were responsible for the targeting (J. Edgar Hoover and Earl Warren). In doing this, we get a look at America's changing view of homosexuals and homosexuality and we see the rise of personal freedom and tolerance in this country.
I do not think that this is a book that will just sit on the shelf of bookstores and libraries but I believe that it will bring about debate among thinking Americans who care about their freedoms and rights. Furthermore the book is not just about the sodomy laws but a history of American sexuality and the way it has been regulated and challenged. The title suggests that this is simply a reference book but it is much more than that. It is an extremely well-written and readable book that deals with a major issue and it seems to me that anyone who values freedom will want to have a look at it.