The Strange History of Sodomy Laws

By Margot Canaday, The Nation. Posted September 16, 2008.

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."

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