Part Three: Social Factors
C1. Homosexuality is against the law.
A. The Charge. Anti-homosexual legislation has long been a hallmark distinguishing civilization from barbarism. These laws are not based on caprice or established by accident but rank as an essential part of mankindís perennial quest to uphold our social decencies.
The law is called upon not simply to prohibit but to foster and encourage as well, inculcating good morals. This proactive approach serves as an indispensable guide in our society because it provides an irrefutable framework within which we can all work, especially in times of confusion or tumult. In Britain Lord Patrick Devlin has forcefully argued that popular morality must influence lawmaking, and that even private acts should be subject to legal sanction if the "reasonable man"finds them unacceptable.
These prohibitions are in accord with natural law; and sodomy, as the apostle Paul instructs us (Romans 1:26-27), is clearly against nature.
When the innate wisdom that resides in these salutary laws is overturned - as has happened in some politically mercurial countries of late - the outcome is dysfunctional to the society. This dismantling of much-needed legislation stems from the machinations of the vociferous gay lobby.
Of long-standing utility, these efficacious provisions should be retained - and restored where necessary..
B. Historical Background. Historically, legal sanctions against homosexual conduct have been linked to the condemnation of sodomy, a broad category that includes oral sex, anal sex, and bestiality. Revealingly, such laws have rarely been enforced against heterosexual couples. In the West the adoption of such legislation has often reflected the sexual ethics of Christianity.
Eventually, the prohibitions have made their way into many secular legal codes, even in some non-Christian nations. As a result, sodomy laws are found in much of the world. Today, consensual same-sex acts between adults are illegal in some 70 out of the 195 countries of the world (approximately 36%). In some forty of these male-male sex is targeted exclusively.
A brief historical review, starting with the Roman Empire, will be helpful. Setting aside the murky details of the Lex Scantinia from Republican times, it was with the dynasty of Constantine the Great (305-337) that the first statutes penalizing male homosexuality enter the Roman law codes. Victorious Christianity had ratified the code of sexual morality embodied in Leviticus 18 and made it part of its own constitution. Even so, the first legal texts are couched in the language of Roman virtue and of condemnation of men who "have changed their sex" rather than that of the Latin renderings of the Hebrew Bible.
It is with the Byzantine Emperor Justinian (527-565) that allusions to the destruction of Sodom enter the logic of Novellae 77 and 141, which prohibit the crime that had caused "whole cities to be destroyed together with their inhabitants." Since the Corpus Juris Civilis became the foundation of legal thinking in Western Europe, these texts were the motivation for the criminalization of sodomy through later centuries.
With the collapse of the Roman Empire, its codes were replaced by barbarian legal traditions that knew little of homosexual behavior as a crime. It was in Canon Law that the religious condemnation of homosexual expression was perpetuated and made a part of popular morality. Nonetheless, centuries of indoctrination were needed to instill the belief in the mass mind that sodomy was a "crime against nature" and the sodomite a criminal on a par with heretics and witches.
The full force of the church's teaching arrived only in the thirteenth century, when the scholastic theologians Albertus Magnus and Thomas Aquinas taught that sodomy was a crime against the order of nature because it denied the procreative function of sexuality, and held it second only to murder in gravity. The close of that century saw not merely legal enactments prescribing the death penalty, but also records of capital punishment. Although executions were never numerous, they served to impress upon the popular mind the horror of "unnatural" sexual conduct. The defamation of sodomy also offered a convenient alibi to the church whenever any misfortune struck: since there was always a reservoir of unpunished sexual immorality within the community. Divine wrath at these unexpiated sins became the explanation, and the "sodomite" served as the scapegoat upon whose head all the ills of society could be blamed.
In England king Henry VIII introduced the first legislation under English criminal law with the Buggery Act of 1533. This law only published sodomy among males, though some offshoot legislation, as in the American colonies and states punished lesbianism as well.
From the end of the thirteenth century until the close of the eighteenth the homosexual was everywhere in Western Europe a criminal and an outcast who had to hide his sexual activity and identity from a persecuting Christian society. With the Enlightenment the legal thinkers of Western Europe began the secularization of the criminal law. Beccaria, Voltaire, and their followers, arguing that the crime of sodomy belonged to canon and not to civil law, convinced the educated public that offenses against religion and morality were matters for confession and expiation rather than concerns of the state. It was against the background of these beliefs that the penal code adopted by the Constituent Assembly of Revolutionary France in 1791 for the first time in modem history omitted the crime of sodomy from the list of punishable offenses, and the Code Napoleon of 1810 retained this innovation. Following the French example, a large number of countries, mainly Roman Catholic ones, reformed their own penal codes in the course of the nineteenth century. In other legal systems, however, the sole change was to replace the death penalty with life imprisonment or some other punishment that fell just short of it.
The recommendations of the Wolfenden Report in England (1957) asserted that "homosexual behaviour between consenting adults in private should no longer be a criminal offence." Following suit, many western governments, including the United States, have repealed their laws targeting homosexual conduct. In June 2003, the United States Supreme Court ruled in Lawrence v. Texas that state laws criminalizing private, non-commercial sexual activity between consenting adults at home on the grounds of morality are unconstitutional since there is insufficient justification for intruding into people's liberty and privacy.
As of 2011, sodomy laws had been repealed or judicially struck down in all of Europe, North America, and South America, except for Antigua and Barbuda, Barbados, Belize, Dominica, Grenada, Guyana, Jamaica, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, and Trinidad and Tobago. Sodomy remains a serious crime in these countries and in many other parts of the world.
If Christianity is the ultimate source of anti-homosexual legislation in the West, these laws have another root in Muslim-majority countries. In practice Islamic Sharia law stems from both the Qur'an and hadiths. The Quríanic condemnation of homosexuality was naturally adopted by Muhammadís successors. According to report, Abu Bakr had a wall thrown down upon suspected sodomites, a punishment that is being replicated in the Middle East today. Ali, the fourth caliph, had sodomites burned.
Islamic legal scholars expanded upon the principles they detected in the Qur'an and the hadiths. In this tradition homosexual conduct is not only a sin, but a "crime against God." There are some differences in interpretation among the four mainstream legal schools, but they all agree that homosexual behavior must be severely sanctioned.
What then of the seemingly flourishing pederastic subculture of the Islamic Middle Ages? Is this simply a myth? No it is not, but the phenomenon is mainly a matter of particular sectors, often those that stand apart from the Sunni mainstream. More generally, the de facto toleration of pederasty is linked to the Islamic tendency to the seclusion of women, leading to their removal from public life. In Islam adult-adult male homosexuality has never been tolerated.
Today, in such Muslim-majority countries as Iran, Mauritania, Saudi Arabia, North Sudan, and Yemen, homosexual behavior is punished by the death penalty. In parts of Nigeria and Somalia, the death penalty also prevails.
C. Response. As we have seen in the above historical review, the sodomy laws do not reflect some universal impulse, found in all times and places. Instead they are culturally and historically contingent, generally revealing the influence of Christianity and Islam. Even though sodomy laws are widespread in several parts of the world today, they are generally absent from areas untouched by those two religious traditions.
As far as natural law is concerned, there is no clear consensus as to what its provisions are with regard to sexual behavior, and hence no valid way of using its dictates either to support or annul the sodomy laws.
These laws are not on a par with those that condemn murder and theft because they sanction victimless crimes. When consent is present, no one is harmed. Sodomy laws bring no clear benefit to society, and much harm to those subject to them. They limit human happiness, and should be abolished everywhere.
BIBLIOGRAPHY. William Eskridge, Jr., Gaylaw: Challenging the Apartheid of the Closet, Cambridge, MA: Harvard University Press, 1999; Dale Carpenter, Flagrant Conduct: The Story of Lawrence v. Texas: How a Bedroom Arrest Decriminalized Gay Americans, New York: W. W. Norton, 2012.