Buggery, Sodomy and Cross-Dressing, Oh My: A Timeline of Gay Criminalization in America
Currently, 73 countries plus five sub-national jurisdictions have gay criminalization laws, most of them in Asia and Africa. These archaic laws impact the lives of LGBT people across the globe, and we must get rid of them. That’s why, in an effort to actively work to remove all laws that criminalize LGBT people, Hornet launched the #DecriminalizeLGBT campaign, and we encourage you to join us.
Now, while that current number of countries with gay criminalization laws is astounding, there’s hope: As recently as 2006, that number was 92.
Even the United States once had gay criminalization laws on the books, in the form of anti-sodomy statutes.
For many millennials, it’s hard to imagine that two men having consensual sex was actually illegal in 14 states as recently as 2003. (For reference, young’uns, Britney’s first album, …Baby One More Time, came out four years earlier in 1999.)
The history of these American gay criminalization (sodomy) laws, derived from the biblical story of Sodom and Gomorrah, is a complex one. But let’s break it all down.
Here’s a timeline of gay criminalization (and eventual decriminalization) in the United States:
1610-1776: The American Colonies
American gay criminalization laws extend as far back as centuries. In fact, I could have gone even further back than the 1600s, as the U.S. legal system was derived from that of England, and England recommend death to “sodomites” as early as the late 13th century.
But let’s go ahead and start here.
In 1610, Virginia was the first colony to have written prohibition of sodomy, however it was repealed eight years after, and no other colony had written law against sodomy until Plymouth adopted one in 1636. Plymouth, as you might remember from elementary school history class, was settled by conservative, religious Puritans. They left England fleeing persecution for their fundamentalist beliefs yet ironically showed the same intolerance to views other than their own. The Plymouth statute outlawed sodomy based on their Biblical interpretation of the Book of Leviticus.
1828: Webster’s Dictionary
In 1828, Noah Webster published the first edition of Webster’s American Dictionary of the English Language. In it, Webster truly went above and beyond, heavily focusing on various terms for gay male sexual practices and ignoring lesbian sexual practices altogether.
Bugger, buggery, pathic, pederast, pederastic, pederasty, sodomy and sodomite were all words used to describe men who have penetrative anal sex with other men. There were also multiple words dedicated to describing trans people: androgynous, castrate, castrated, eunuch, eunuchate, eunuchism, hermaphrodite, hermaphroditically and scrat.
1865: Post-Civil War
Flash forward to post-American Civil War. America is once again a country united (kind of … but let’s just go with that). The crimes of “sodomy” and “buggery” were considered capital offenses in many states. Cross-dressing, too, was criminalized, punishable by imprisonment and other forms of corporal punishment.
1960s-70s: The Beginnings of Decriminalization
Prior to 1962, sodomy was a felony in every state, punishable by lengthy imprisonment or death. In that year, the Model Penal Code (MPC), developed by the American Law Institute to promote uniformity among the states, modernized statutes, recommending that consensual sodomy be removed from criminal code. Rather, solicitation of sodomy should be a crime.
Soon after, the state of Illinois adopted the recommendations of the MPC, being the first state to decriminalize consensual anal sex between men. This didn’t, however, inspire other states to follow suit. It took nearly a decade for other states to do so.
Then, throughout the late 1960s and ’70s, 17 other states repealed laws criminalizing consensual sodomy.
1982-86: Bowers v. Hardwick
In August of 1982, Atlanta police officer Keith Torick issued a citation to Michael Hardwick for drinking beer in public. Due to a clerical error, Hardwick missed the court date, and Torick obtained a warrant for Hardwick’s arrest. The matter was settled amiably, with Hardwick only paying a $50 fine.
But three weeks later Torick showed up to Hardwick’s door to serve the now-invalid warrant. Hardwick’s roommate let him in. That’s when Torick caught Hardwick and another man engaging in mutual, consensual oral sex. Torick arrested both men on charges of sodomy, which at the time in Georgia was a felony carrying a sentence of one to 20 years imprisonment.
Hardwick then sued Michael Bowers, the Attorney General of Georgia, for a declaratory judgment that the state’s sodomy law was invalid. The ACLU represented Hardwick in court.
Hardwick lost the case in the U.S. Supreme Court, and Georgia’s gay criminalization law was upheld.
Chief Justice Warren E. Burger focused on the historical negative attitudes towards gay sex. He quoted Sir William Blackstone’s characterization of sodomy as “a crime not fit to be named.” Burger concluded, “To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.”
1998-2003: Lawrence v. Texas
In 1998, John Geddes Lawrence Jr., a gay 55-year-old medical technologist, hosted two gay friends, Tyron Garner and Robert Eubanks, at his place. Lawrence and Garner had been friends for years, and Eubanks and Garner had a tumultuous on-again, off-again relationship. Jealous that Lawrence was flirting with Garner, Eubanks called the police, saying there was “a black male going crazy with a gun” at Lawrence’s apartment. The police arrived on the scene and came through the front, unlocked door, and officers reported seeing Lawrence and Garner having anal and oral sex.
Lawrence was charged under Texas’s anti-sodomy statute, the “Homosexual Conduct” Law, which made it a Class C misdemeanor when someone “engages in deviate sexual intercourse with another individual of the same sex.”
Lawrence went to court, and with the help of Lambda Legal, his case reached the U.S. Supreme Court. There, they hoped to overturn all gay criminalization sodomy laws on a national level.
As of 2003, 14 states had sodomy laws, and the act ranged from a misdemeanor to a felony. In the landmark 6-3 decision by the Supreme Court, it struck down anti-sodomy laws in Texas and thereby every American state and territory. This overruled the 1986 case of Bowers v. Hardwick.