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. At the time, this act was only applic­a­ble to white men. Black men who com­mit­ted the same crimes against white women would be pun­ished with a sen­tence of death, as out­lined in Pennsylvania’s ​“An Act for the Trial of Negroes”, passed in 1700. 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.