Legal Treatment of Homosexuals in American History

AMERICAN PRE-CLASSICAL & CLASSICAL PERIODS

Legal precedent has validated the usefulness of history-based analysis in American law. (See, e.g., Bowers v. Hardwick, 106 S.Ct. 2841 (1986).) As concerns law and the history of sodomy, Western society, in general, has long viewed the conduct with near universal reproach. The United States, in particular, has historically adjudged sodomy to be neither a fundamental right, nor a permissible form of sexual conduct. Without doubt, American law has been influenced by Judeo-Christian beliefs, however, for a proper historical perspective and analysis of the Pre-Classical and Classical American periods, a limited legal survey beginning with ancient Greece is necessary. Prior to a historical accounting, it is helpful to take note of relevant terminology.

"Homosexuality" is generally defined as "the sexual desire for members of one's own sex (Lasson, 1985, p. 648). It is interesting to note that the concept of homosexuality is said to have been non-existent prior to 1870 (Foucault, 1978, p. 43), as "sexuality -- whether tolerated or condemned -- was something a person did, not what he or she was" (Goldstein, 1988, p. 1087).

The conduct proscribed by "Sodomy" laws, i.e., anal intercourse, which sometimes included oral-genital contact, was not always limited to same-sex (primarily male) unions. These distinctions are ref

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1852, States began to change their statutory language to prohibit "'the crime against nature,'" instead of "'sodomy'" or "'buggery'" (Goldstein, 1988, p. 1084). (See Del. Code Ann. tit. 20, ch. 131, º 7 (1852); Mass. Gen. L. ch. 165, º 18 (1860); N.C. Rev. Code ch. 34, º 6 (1854); Or. Organic and Gen. Laws, 1845-64, ch. 48, º 639; and Tenn. Code, pt. 4, tit. 1, ch. 8, art. 1, º 4843 (1858).) These actions seem to imply an attempt by the various legislatures to attach an even greater offensiveness to the crime. The belief that the act of sodomy was immoral and against nature is apparent in the harsh degree of punishment attached to the crime. In the American colonies, the penalty for sodomy could elicit a sentence of death (Slovenko, 1985, p. 446). The courts did, in fact, direct the execution of several men found guilty of violating the statute (Id.). Slovenko (1985) notes, however, that by 1825, most states had abolished the death penalty for sodomy (p. 446). V. CLASSICAL (1868 TO 1947) APPROACH By 1868, when the Fourteenth Amendment was ratified, 32 of 37 States had enacted criminal sodomy laws, and no additional States had further targeted sexual acts between men for prohibition (Goldstein, 1988, pp. 1081, 1084). St
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Approximate Word count = 5486
Approximate Pages = 22 (250 words per page)

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