Saturday, September 22, 2007

Cramer on Sodomy Laws:

Clayton Cramer seems particularly irritated at one small passage in the Lawrence v. Texas decision that asserted:

At the outset it should be noted that there is no long-standing history in this country of laws directed at homosexual conduct as a distinct matter. Beginning in colonial times there were prohibitions of sodomy derived from the English criminal laws passed in the first instance by the Reformation Parliament of 1533. The English prohibition was understood to include relations between men and women as well as relations between men and men. ... Nineteenth-century commentators similarly read American sodomy,buggery,and crime-against-nature statutes as criminalizing certain relations between men and women and between men and men.... The absence of legal prohibitions focusing on homosexual conduct may be explained in part by noting that according to some scholars the concept of the homosexual as a distinct category of person did not emerge until the late 19th century.... Thus early American sodomy laws were not directed at homosexuals as such but instead sought to prohibit non-procreative sexual activity more generally. This does not suggest approval of homosexual conduct. It does tend to show that this particular form of conduct was not thought of as a separate category from like conduct between heterosexual persons.

The policy of punishing consenting adults for private acts was not much discussed in the early legal literature. We can infer that one reason for this was the very private nature of the conduct. Despite the absence of prosecutions,there may have been periods in which there was public criticism of homosexuals as such and an insistence that the criminal laws be enforced to discourage their practices. But far from possessing “ancient roots,” Bowers, 478 U.S.,at 192, American laws targeting same-sex couples did not develop until the last third of the 20th century.

Cramer admits that this passage aptly describes a number of important historic sodomy laws, but complains that it sweeps too broadly -- indeed there were some historic sodomy laws that targeted homosexual behavior only. As far as I can tell, sodomy laws were a hodgepodge; some targeted only anal sex, some both oral and anal sex; some applied to homosexual and heterosexual contact, some only homosexual; some lumped in bestiality and any non-procreative sex; some statutes, you really couldn't tell what exactly was being prohibited and you probably have to dig into the courts' applications and interpretations of them to find out.

One pattern I observe is that sodomy laws premised on "nature" were the ones that swept with a broad brush and targeted all non-procreative acts, including heterosexual and homosexual oral and anal sex, bestiality and perhaps contraception, all under the rubric of "sodomy." Most (all?) colonial laws that targeted homosexual behavior only (many of them specially male homosexual behavior) were copied directly from the Bible often the Old Testament, and complete with capital punishments and citations to verses and chapters.

For instance, this Connecticut statute published in a 1656 law book reads:

If any man lyeth with mankinde, as a man lyeth with a woman, both of them have Committed abomination, they both shall surely be put to death. Levit. 20. 13.

Perhaps Cramer misses the forrest for the trees here. America no longer copies directly from the Bible and writes such text into law. There is a word for this: theocracy, something Cramer claims not to support. In fact, this statute, and a few others like it, were written over a hundred years before America's founding. And it was during America's founding that, following the Enlightenment, trends changed, laws started to "enlighten" and "reform" and lawmakers realized that maybe it's not a good idea to just try and write the Bible wholesale into the civil law, but rather look for secular "reasons" (they didn't use the word "secular" but did use the term "reason") to justify the existence of any civil law. As such "reason" could perhaps justify the existence of the sodomy laws that target all non-procreative behavior (personally I don't believe it does), the exact kind Justice Kennedy in Lawrence v. Texas speaks of that don't distinguish between heterosexual and homosexual "sodomy." But "reason" does not justify writing parts of Leviticus into the civil law complete with verses and chapters of scripture and leaving it at that.

For instance, in the very same Connecticut statute to which Cramer appeals, we see:

If any man after legal conviction shall have or worship any other god but the Lord God, he shall be put to death (Duet. 13.6 and 17.2, Ex. 22.20).


If any person shall blaspheme the name of God the Father, Son, or Holy Ghost, with direct, express, presumptuous or high-handed blasphemy, or shall curse in the like manner, he shall be put to death. Lev. 24.15, 16.

This is precisely the sorts of laws from which America's founders were trying to get away. In fact, they held men had an unalienable natural right to worship false gods. And the right to speak freely and exercise one's religion probably makes all blasphemy laws, except perhaps those that protect against breaches of the peace only (and as such would have to protect whatever the dominant religion of the public be, not just Christianity) unconstitutional or otherwise violative of natural right.

You have to wonder, in fact, whether Jefferson and Adams, for their harsh criticisms of the Trinity and other doctrines of orthodox Christianity, would be executed under these laws.

"The Trinity was carried in a general council by one vote against a quaternity; the Virgin Mary lost an equality with the Father, Son, and Spirit only by a single suffrage."

-- John Adams to Benjamin Rush, June 12, 1812.


"An incarnate God!!! An eternal, self-existent, omnipresent omniscient Author of this stupendous Universe, suffering on a Cross!!! My Soul starts with horror, at the Idea, and it has stupified the Christian World. It has been the Source of almost all of the Corruptions of Christianity."

-- John Adams to John Quincy Adams, March 28, 1816.

That sure sounds like some "presumptuous or high-handed blasphemy" to me.

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