Criminalization of Homosexuality in American History

Colonial America Criminalized Sexual Acts and Status 

The first colonial settlers in North America passed laws punishing gay sex with the death penalty. In 1636, the Plymouth Colony wrote a simple list of “Capitall offenses lyable (sic) to death” that included sodomy, treason, witchcraft, arson, rape, murder, bestiality, and adultery. In 1641, the Massachusetts Bay Colony adopted the Body of Laws and Liberties, which established twelve capital offenses including sodomy. The Bay Colony’s statutes directly reflected the language of the Old Testament, quoting Leviticus 20:13. This language would remain on the books in Connecticut until 1822.

Under the New Haven Colony’s law, lesbianism, heterosexual anal intercourse, and even certain acts of masturbation were punishable by death. This law remained on the books for ten years, when the New Haven Colony joined Connecticut. In 1718, the New Hampshire legislature passed “An Act against Murder, etc.,” which combined capital laws and sodomy laws. Rhode Island was the only New England colony that did not adopt the language of Leviticus in their statutes, but also maintained capital punishment for sodomy. 

In colonial New York, under the Duke of York’s rule, sodomy was a capital offense, and the statute mirrored the Levitical language seen in Massachusetts and Connecticut. The Duke of York’s rule of law lasted through 1691, and it is unclear whether capital laws criminalizing sodomy existed in New York prior to the American Revolutionary War. In Pennsylvania, Quaker ideology influenced legal statutes. When William Penn settled Pennsylvania, his “Great Law” limited the death penalty to cases of murder and for the first time, introduced prison sentences for separate crimes. Punishment for homosexual acts was reduced to six months of imprisonment, rather than death. In 1700, the Pennsylvania Assembly passed “An Act Against Incest, Sodomy, and Bestiality,” which required a man convicted of sodomy or bestiality to be imprisoned and whipped at a magistrate’s discretion, and castrated if the man was married. In 1718, the British Parliament intervened, and the Pennsylvania legislature began to enact punitive capital laws more closely aligned with those in England.

Pennsylvania, Delaware, and New Jersey were under Quaker rule and adopted similar laws. Delaware adopted the 1718 Pennsylvania law, while New Jersey split into eastern and western territories with variable Quaker codes. Scholars believe the only capital crimes under the Eastern New Jersey code were murder, bestiality, and bearing false witness in capital cases. After the colony’s union in 1702, it appears there were no sodomy laws until 1796, after the American Revolution. 

Post-American Revolution 

Following the success of the American Revolution, many states resented the harsh rule of the British and reformers fought for a more humane legal system. In Pennsylvania’s state constitution, adopted in 1776, the drafters included specific language giving the legislature power to impose “proportionate” punishment. In 1786, the Pennsylvania legislature passed “An Act Amending the Penal Laws,” which removed the death penalty as punishment for sodomy and other offenses. Other states slowly followed Pennsylvania. In 1796, New Jersey passed “An Act for the Punishment of Crimes” that made sodomy punishable by a fine and solitary confinement with hard labor for no more than twenty-one years. New York passed legislation only retaining capital punishment for murder and treason, and resentenced those already sentenced to death for former capital crimes to sentences of life in prison. Rhode Island’s “Public Laws” of 1798 officially took the death penalty off the table for an individual’s first sexual offense, but not his second sexual offense. 

In 1800, Virginia resentenced those formerly sentenced to death to prison terms of no more than ten years, though enslaved people could still be executed for sodomy. The Massachusetts legislature changed the punishment in 1805 from death to a sentence of no more than ten years. Maryland (1809) and New Hampshire (1812) passed similar legislation requiring sentences between one to ten years long for sodomy charges. The Georgia state code, written in 1816, called for life imprisonment if charged with sodomy. North Carolina kept the death penalty for sodomy on the books until 1869, when the punishment for sodomy and other former capital crimes was changed to between five and sixty years in prison. Not until 1873 did South Carolina repeal the death penalty as punishment for sodomy, which came twelve years after England abolished capital punishment for sodomy. 

20^th Century America 

At the turn of the 20^th century, legislatures made more explicit attempts to criminalize homosexuality. Several sodomy laws were expanded to include oral sex. In the 1950s, state and nationwide ‘witch hunts’ of homosexual men ensued, and hate-based rhetoric equated consensual adult sex with child molestation. 

In 1955, the American Law Institute voted to decriminalize consensual acts of sodomy and removed sodomy as a crime from its Moden Penal Code (MPC). Illinois was the first state to reject its sodomy law in 1961, when the state revised its entire criminal code. Connecticut would be the second state in 1971, with 19 more states repealing their laws in the 1970s. After a six-year battle over repealing the state’s sodomy law, California passed a repeal in 1975 after a tie vote in the Senate required a vote from the lieutenant governor. In the 1980s, Pennsylvania and New Yorks’ highest courts struck down state sodomy laws, partially relying on the U.S. Constitution in their decisions. 

Bowers v. Hardwick 

In 1986, the Supreme Court heard the case of Bowers v. Hardwick, which challenged Georgia’s statute that criminalized oral and anal sex for all people, regardless of sexuality.  The Supreme Court acknowledged an implicit right to privacy in the U.S. Constitution but said that it was not enough to strike down the Georgia statute. 

In 1993, Nevada and the District of Columbia repealed their sodomy statutes. Arizona repealed its statute in 2001.  Kentucky, Tennessee, Montana, Georgia, and Minnesota all repealed their sodomy statutes based on their state constitutions. The American Civil Liberties Union and Lambda Legal successfully brought legal challenges in several other states, including Kansas, Maryland, Arkansas and in Texas. 

Lawrence v. Texas

In 2003, the United States Supreme Court agreed to hear the case of Lawrence v. Texas. Police arrested Mr. Lawrence and Mr. Garner and both men were later convicted of violating a Texas statute forbidding two people of the same sex from engaging in certain sexual behaviors. In a 6-3 opinion authored by Justice Anthony Kennedy, the Court held that Texas’ statute was unconstitutional. “Their right to liberty under the Due Process Clause gives [the defendants] the full right to engage in their conduct without intervention of the government… The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual,” wrote Justice Kennedy.