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A glance through anthropological and historical records reveals immense cross-cultural variation in the acceptance and repression of homosexual relations between men and between women. So great is this variation that some societies in some eras have imposed capital punishment on men engaging in homosexual acts, while others have held sexual friendships between men to be a social ideal of the most honorable, and even heroic, men. The treatment of homoerotic relations between women has often not been symmetric to those of men, being valued or constrained as much by gender conformity as by sexuality per se. Given this immense variation, the question, especially for western societies, is: How did homosexuality become criminalized, then medicalized, and then, to varying degrees, emancipated from the control of church, government, and other social institutions and reform movements? Today the relevant issue in democratic societies is less about crime and more about how best to assure that law works to guarantee the freedom and equal participation of all, including homosexually interested members of society, in the rights and responsibilities of citizenship. Homosexuality and people identified as homosexuals—lesbians, gay men, bisexuals, and transgendered people—today confront a patchwork of legal injunctions, depending on jurisdiction, that range from unreformed criminal labels to inclusion in antidiscrimination codes.
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Anthropological records tend to be uneven in documenting sexual customs and practices around the world, typically reveal more about male attitudes than female, and show a wide range of social attitudes regarding homosexuality. What emerges from the anthropological record is that at least some indigenous societies on every inhabited continent have socially valued relationships that include a homosexual aspect. These relationships fall into a few major patterns typically defined by life stage, gender, status, kinship, or some combination (Adam, 1985; Greenberg; Trumbach). One major pattern, well documented in the Americas and Polynesia, is the ‘‘berdache,’’ ‘‘two-spirited,’’ or transgendered form where gender fluidity, gender mixing, or gender migration appears to be possible for some men and a few women. In these societies, homosexual relations are part of a larger pattern where men and women take up some or most of the social roles and symbols typical of the other gender and enter into marital relations with other people with conventional gender attributes ( Jacobs, Thomas, and Lang; Lang and Vantine). A second major pattern takes the form of hierarchical, military, age-graded, and mentor/acolyte relationships, where adult men who presume control over women’s bodies also assume sexual rights over younger, subordinate males (Dover; Herdt; Adam; Halperin). Examples of this pattern have been documented in ancient Greece, medieval Japan, precolonial Africa, and Melanesia.
A third pattern, sometimes overlapping with the first two, orders homosexual relationships along the same kinship lines as heterosexuality. Thus, where particular clan members are considered appropriate marital partners—while unions with members of other clans may be prohibited as incestuous—both males and females of the same clan may be considered appropriate and acceptable partners. There are Australian and Melanesian cultures where, for example, one’s mother’s brother was considered both an appropriate marital partner for girls and an appropriate mentor (including a sexual aspect) for boys (Adam, 1985). Similarly, in some societies where the accumulation of bride-price is the prerequisite to obtaining a wife, occasionally women with wealth are able to avail themselves of this system to acquire wives and men can provide a corresponding gift to the families of youths whom they take into apprenticeship (Amadiume). These kin-governed bonds have been documented in some societies of Australia, Africa, and Amazonia. These major patterns do not exhaust the full range of cross-cultural homoerotic bonding, nor do they explain the gay and lesbian worlds of today. They do point to the fact that there is no unitary idea of homosexuality in different societies, no single role or attitude toward same-sex sexuality, and thus no predominant conception of social approval or disapproval. It is also clear that there is no intrinsic connection between conceptions of homosexuality and crime. Indeed, in kin-based models of homosexual attachment, socially disapproved or ‘‘criminal’’ relationships would refer to relationships formed between persons of inappropriate clans, regardless of gender. Similarly, in age-graded, mentor-acolyte systems, the relationships considered to be odd, ridiculous, or even criminal are those where older men take a sexually receptive role in relation to younger men, in contravention of social expectations that younger men should assume a receptive role. Homosexuality per se would not be at issue. It is against this backdrop that the western preoccupation with homosexuality as criminal sexual conduct must be explained.
The roots of the political and philosophical traditions of the West are in a society deeply affirmative of homosexual relations of the mentoracolyte model. Indeed, most of the heroes of ancient Greek mythology had male lovers; the founding of political democracy is attributed to the male couple Harmodias and Aristogeiton, who slew the tyrant Hyppias in 514 B.C.E. (Halperin; Foucault). And Socrates, in unexpurgated translations of the Symposium, rhapsodizes about how the love of youths leads to the love of beauty and thus to the love of wisdom. Yet the modern Western tradition has suppressed, denied, and appropriated this homoerotic heritage consigning it to sin, sickness, or crime. The gradual shaping and consolidation of Christian doctrines into the canon law of the Western church articulated by medieval theologians, and the propagation and enforcement of these views by the Roman Catholic Church from the twelfth to fourteenth centuries and onward replaced the heroic friendships valued by the ancients with the idea of the sodomite ( Jordan, 1997). Like the traditions it suppressed, the sodomite cannot simply be equated with modern ideas of the homosexual. In ecclesiastical law sodomy typically referred to a vague, sometimes comprehensive category of sexual practices that lack pro-natal objectives, including, for example, nonreproductive heterosexual acts and bestiality, as well as homosexual practices. The consolidation of church power through the first millennium of the Christian era included the gradual eradication of indigenous, European forms of sexual friendship (Boswell). By the fifteenth and sixteenth centuries, sodomy became a charge pursued in the West by the Inquisition, with varying degrees of rigor in different countries, along with the church’s campaign to suppress Jews, witches, and other forms of religious nonconformity. In the sixteenth through twentieth centuries, Christian orthodoxies, imposed by military conquest on indigenous populations of the Americas, Africa, and Asia, actively extinguished local forms of homosexuality as part of larger campaigns of cultural colonialism, or forced these local forms underground (Trexler; Bleys). The conceptualization of homosexuality as a sinful, nonreproductive sexual act became widely established where governments and empires acted in concert with institutional churches to enforce cultural and juridical dominion over much of the world’s population in the Christian realm.
As nation-states emerged from empires in the eighteenth through the twentieth centuries, many of them formalized their criminal codes from the legacy of canon law, depending on the social ingredients that went into state formation and their relation to church control. Nationstates might be thought of as places where particular social groups defined by capital, race, language, religion, gender, and sexuality forge hegemony over a territory (Corrigan and Sayer). These groups institutionalize their own cultures as national cultures, thereby generating a range of subordinated and minority groups who must fend for themselves in an alien world. With the rise of nation-states in the context of a Eurocentric, Christian, modern world-system, the modern conception of homosexuality has emerged, a sexual act attributed to a class of people subject to social sanction and criminal penalty (Adam, 1995; Stychin). As the world economy mobilized masses of people in cities, and as states devised more efficient systems of supervising, regulating, and policing their populations, homosexual men (and later women) began to be affected by the criminal justice systems of Europe. From the early example of the fifteenth century Venetian Republic, to eighteenth-century campaigns to catch and suppress organized sodomy—that is, the nascent gay world—in Britain, Holland, and Switzerland, state agencies (and at least in Britain, Societies for the Reformation of Morals, as well) swept up hundreds of men and some women in their punitive nets. The Dutch campaign alone resulted in seventy executions. The legacy of this nexus of church and state building has been the disciplining of same-sex eroticism, the categorization of its adherents as a people apart, and the invention of homosexuality as a juridical and medical category.
The seeds of an alternative to the old order germinated in the Enlightenment, when scientific and humanist thinking, and a rediscovery of the ancient Greek legacy of democratic politics and aesthetics, grew into a countermovement to theocracy. Socio-economic changes occurring in the world system were, at the same time, undermining the aristocratic, landholding classes of Europe and the church that legitimized their rule. The French Revolution is perhaps the most central symbol of the modern social and cultural paradigm that swept aside church and aristocracy in the name of the right of the people to govern themselves rather than submit to the will of monarchs and bishops. The modern French state advanced the idea of the citizen with rights to self-determination regardless of origin or trait. Religion was dethroned from its hegemonic position, deprived of the tools to enforce its will on everyone, and privatized to the realm of personal belief. Everyone could have religion; they just did not have the right to force those around them to believe or to carry out the same moral agenda.
It is perhaps not surprising, then, that this liberal democratic revolution also initiated the disestablishment of sexual orthodoxy, permitting greater individual freedom, and extracting the state from the regulation of homosexuality. With the advent of the Napoleonic legal code, sodomy disappeared from criminal law, and as Napoleon swept through Europe evicting the mainstays of the old order, he left new nation-builders in his wake who founded legal systems without the category of sodomy. The modern world of most of western and southern Europe, as well as its territories (principally in Latin America), broke the medieval link between homosexuality and criminality in the early nineteenth century.
Germany, Britain, the United States, and their territories, who held out against Napoleon, remained unreformed for the next century or more. British elites reacted to the French Revolution with widespread crackdowns on dissidents and a wave of imprisonments of men for sodomy. When the German states united under the auspices of Prussia in the late nineteenth century, they retained the Prussian sodomy law, Paragraph 175, and in some instances overturned the decriminalization that had occurred in such component states of the new German empire as Bavaria and Hannover. One Hannover jurist, Karl Ulrichs, became a lifetime advocate against Paragraph 175 and was a precursor to the first organized gay and lesbian movement organization, the Scientific-Humanitarian Committee. Founded in Berlin in 1897, the committee worked for many years to overturn Paragraph 175 in Germany. During the late 1890s in Britain, the primary public event surrounding the criminal labeling of homosexuality was the show trial that condemned Oscar Wilde to two years of hard labor in Reading Gaol.
By the early twentieth century, European nations contained conflicting social forces advancing modern reforms and defending premodern traditions. Gay and lesbian public spaces, now evident in cities throughout the industrialized world, became vulnerable to predation by an array of police, clerics, physicians, moral entrepreneurs, and blackmailers, each with their own agenda. Gay and lesbian voices could only infrequently break through official censorship to participate in the public agenda, and often had to resort to oblique references in science, theater, and literature in order to communicate with each other and to the public. Only in Germany and the Netherlands was there a sufficiently open civil society for above-ground gay and lesbian organizations advocating for change.
With reactionary forces coming to power in Germany in 1933, the law became a tool used to strike out against Jews, national minorities, the disabled, religious dissidents, and homosexuals, with each group falling under criminal sanction and suffering genocide in the Holocaust. Russian Communism under Stalin moved in a similarly authoritarian direction, re-criminalizing homosexuality at a time when the Soviet state was inventing and destroying a wide range of supposed internal enemies. The end of World War II brought little solace to homosexual peoples, as the criminalizing states—most notably the Soviet Union, the United States, the United Kingdom, and the Federal Republic of Germany—showed little sign of reform or even initiated new campaigns of persecution against their gay and lesbian citizens. When ruling elites become fearful during times of national or international upheaval, criminal law is often a tool of repression directed against those imagined to be enemies of national identity and community. Just as Britain included homosexuals in its repression of dissidents during the French Revolution, the Cold War fed state searches for ‘‘traitors’’ and dissidents. In the United States, McCarthyism criminalized a wide range of people imagined to be the ‘‘un-American other’’ as ‘‘communists’’ driving many out of their careers and into exile. Again, among its fantasy enemies were homosexuals pursued as ‘‘security risks’’ and forced into jails and mental hospitals (D’Emilio). With the suppression of the early gay and lesbian movement in the Holocaust, the only alternative in the 1950s to the criminal paradigm was the medical view of homosexuality as sickness. While police and courts raided and jailed gay and lesbian meeting places, psychiatrists were busy promoting the redefinition of homosexuality as a psychopathology.
Anglo-American Law Reform
A thaw in the repressive climate of the post– World War II period occurred on several fronts in the late 1950s. In Britain, as in most western European countries and the United States, gay and lesbian people began to organize in small, cautious groups in major cities. These homophile groups attempted to provide mutual support in an environment characterized by fear and harassment. Criminal laws gave police and citizens alike a warrant to persecute: blackmailers were given free rein to exploit many, gay bashers could act with impunity, gay bars were subject to raids, gays and lesbians were vulnerable to losing their jobs when a newspaper or a gossip informed on them to employers, and some were pressed into mental hospitals and prisons. No one could count on sympathy from courts or professionals when seeking redress against discrimination. Indicative of the times was the 1954 death of Alan Turing, a master cryptographer during World War II responsible for breaking Nazi codes and today recognized as an originator of the modern computer. When his homosexuality was found out by police in 1952, he was forced to undergo destructive hormone treatments and hounded to suicide in 1954 (Hodges). But also in 1954, an unrepentant Peter Wildeblood spoke out against his persecutors in a well-publicized trail by demanding ‘‘the right to choose the person whom I love’’ (Adam, 1995). The courts responded by sending him to prison. Nevertheless, by 1957 a royal commission recommended that private homosexual relations between consenting adults be decriminalized (Weeks). It look another ten years before a Labour government enacted the commission’s recommendation during a period when laws were being liberalized on a series of ‘‘moral’’ and family issues, such as divorce and abortion.
In the United States, the Civil Rights movement challenged Americans to practice the legal and democratic ideals professed in the Constitution, and to recognize the racial subordination that violated these ideals. The Civil Rights movement, in turn, opened the way for wide-ranging public debates about other forms of social injustice, and gave courage to other subordinated groups to mobilize for citizenship rights. Students, women, other racial minorities, and gay and lesbian people joined in the New Left demand for democratic participation of disenfranchised groups. The defensive homophile groups of the 1950s gave way to a new militancy of the 1970s as lesbians and gay men shifted from apologetics to a rights discourse. In 1961, Illinois became the first state to decriminalize by adopting the Model Legal Code of the American Law Institute. Twenty years later a bare majority of the states had followed suit either through legislative reform or court rulings, and in 1986 the United States Supreme Court upheld the sodomy laws in the unreformed states (Bowers v. Hardwick).
Similar changes were occurring worldwide during the 1960s and 1970s. Canada and Germany decriminalized in 1969, and Australia decriminalized the federal capital and northern territories in 1973, beginning a process that worked its way through state legislatures.
Decriminalization came about as part of a larger set of socio-economic changes that have led to a public rethinking of the meanings and functions of family and sexuality, especially in the advanced, industrial nations. The growth of women in the workforce helped create the foundation for feminist movements and challenged traditional presumptions about gender and family. Women’s movements struggled for a right of personal and sexual self-determination, successfully pressing for reform of divorce and abortion laws. Families shifted from being units of production in traditional, agrarian societies, to units of consumption in wage-labor systems, resulting in a fall in the birthrate and a corresponding questioning of pro-natal ideologies. All of these changes are associated with a gradual reconceptualization of marriage as voluntary, egalitarian, and romantic—all criteria that have equal applicability to same-sex unions. Same-sex relationships have been part of this reorganization of the elements of gender, sexuality, and family, and have come to seem less ‘‘different’’ as heterosexual relationships have themselves changed over time. And lesbian and gay people have organized to throw off the disabilities imposed on them by law and psychiatry.
The Global View
At the turn of the twenty-first century, criminal penalties for homosexual acts remained part of legal codes primarily in three sets of countries: (1) post-colonial governments of south Asia, Africa, and the Caribbean (many still preserving British laws now abandoned by the United Kingdom itself); (2) mainly southern and Rocky Mountain states of the United States; and (3) Islamic governments of the Arab world and Asia (International Lesbian and Gay Association). Executions of homosexual men were reported in the 1990s in the radical, theocratic states of Iran and Afghanistan, as well as in Saudi Arabia. With the fall of the Soviet Union, most of the newly independent states, including Russia, moved rapidly to decriminalize, but some Caucasus and Islamic republics still retain the Stalinist legal code. There are exceptional instances of the recriminalization of homosexuality in recent times as in Puerto Rico and Nicaragua. Recriminalization came about in Nicaragua when church and landowning elites reasserted themselves in government, with U.S. backing, against the former Sandinista revolutionary government.
Criminal law is, of course, not a reliable guide to actual practice. Applied to consenting, sexual behavior, it is necessarily arbitrary and uneven. Enforcement typically relies on vindictive neighbors, police intrusion, or periodic campaigns of persecution dependent on the motivations of political elites and moral entrepreneurs. Because it is a charge that is virtually impossible to disprove, sodomy law has long proven to be a convenient political weapon in the absence of legitimate wrongdoing. Sodomy was a convenient tool for seizing control of the commercial empire of the former Crusaders, the Knights Templar, in the fourteenth century when French and Spanish monarchs grew covetous of their influence. The Nazi regime also used it to discredit and arrest political enemies. In 1998, it proved useful to the Malaysian Prime Minister Mahathir Mohamad, who successfully imprisoned his political rival, finance minister Anwar Ibrahim, on charges of sodomy.
Vibrant gay and lesbian communities flourish in some jurisdictions where sodomy law continues, but is largely a ‘‘dead letter,’’ even in places where homosexual people struggle against active discrimination practiced by state and social institutions, including the police and the courts. In other countries, where homosexual ‘‘offenses’’ are off the law books, a range of other discriminatory legislation nevertheless imposes disabilities on the freedom of citizens to love and live with the persons of their choice. Various kinds of sweeping laws regulating ‘‘public scandal’’ and ‘‘indecent acts’’ provide police with broad powers that lead to harassment and intimidation, often directed against gay men, most notably in Latin America and Romania. In the United States and Canada, police and gay communities contest the boundaries between ‘‘public’’ and ‘‘private’’ as men suffer arrest from time to time for sexual speech or conduct typically under the cover of darkness in parks or in bathhouses. Lack of criminal penalty may be no guarantee of freedom of association or freedom of expression. Attempts to form gay and lesbian associations, or simply to gather together on a social basis, may be subject to repression. In many places, the organization of gay and lesbian film festivals or the founding of a gay press have resulted in police action, or in official acquiescence to attacks incited by church officials, criminal gangs, and death squads. Violence against lesbians and gay men continues to flourish in places where police turn a blind eye toward perpetrators, and where courts excuse them when they claim to be reacting against a sexual advance. A number of jurisdictions impose a higher age of consent for homosexual than for heterosexual activity, a remnant of the theory that homosexuality is in need of special, surplus regulation in comparison to heterosexuality.
From Criminal to Human Rights Law
In the last decades of the twentieth century, many governments took steps to rectify discriminatory regulations imposed on citizens’ freedom to form the sexual and affective relationships of their choosing. As justice, rather than crime, has come to define public discourse around homosexual relations, governments have increasingly recognized their gay, lesbian, bisexual, and transgendered populations as subordinated and vulnerable peoples whose fundamental rights to life, livelihood, and democratic participation have been unjustifiably compromised by social prejudice and misuse of state power. Redress for discrimination experienced in employment or housing was a demand first pressed by many labor unions in the 1970s, and adopted by voluntary associations and municipal governments. Norway became the first country to adopt a national antidiscrimination law in 1981. By the end of the 1990s, human rights legislation including sexual orientation as a protected category had become widespread in the European Union, including Sweden, Denmark, Iceland, France, Spain, Finland, the Netherlands, Luxembourg, and Switzerland (International Lesbian and Gay Association). In Canada, human rights law reform came province by province, first with Québec in 1977 and culminating in a Supreme Court decision in 1998 that ordered the last hold-out among the ten provinces to adopt antidiscriminatory law. Australia undertook a similar state-by-state process; New Zealand adopted its law in 1993. The United States shows a much slower movement toward legal reform with only ten of fifty states having human rights laws. One state, Maine, repealed its human rights law in a state-wide referendum. Sexual orientation legislation is appearing in other countries that undertook constitutional reform in the 1990s, namely, South Africa, Slovenia, Ecuador, and Fiji. Somewhat more restrictive human rights legislation, applied only to employment, is now in place in Ireland and Israel. Included in some human rights legislation are anti-vilification provisions that prohibit hate propaganda and incitement to violence.
The advent of AIDS in the 1980s introduced a new round in conflicts over sexual regulation. AIDS was seized upon by the traditional opponents of homosexuality as a tool for recriminalization. While some of the more egregious initiatives have been turned back, a myriad of punitive and exceptional laws are now on the books that limit safe-sex education, pretend to control sexual transmission of HIV, or prohibit travel. The United States has distinguished itself with a law that discriminates against the entry of HIV-positive individuals into the country; as a result, the United States has been boycotted by the leading world AIDS research organization, the International AIDS Society.
The frontier of full citizenship rights at the end of the twentieth century is the legal recognition of same-sex partnerships. Denmark initiated a registered partnership program for same-sex couples in 1989. Norway, Sweden, the Netherlands, and Iceland have followed the Danish precedent, and a supreme court decision in Hungary has included same-sex couples in common law spousal status. Broad legal recognition is now in place in the Canadian provinces of Québec, Ontario, and British Columbia (a federal bill, C-23, is currently before the Canadian Parliament but not yet passed), the Spanish regions of Catalonia and Aragon, and the U.S. states of Hawaii and Vermont. All of these laws, however, fall short of full equality, often barring gay and lesbian couples from full-fledged marriage, adoption, or access to alternative insemination. Beginning with Utah in 1995, a wave of preemptive legislation and referenda swept through the United States to ban ‘‘gay marriage,’’ extending in five years to thirty-one states and the federal Congress.
Today gay and lesbian movements and scholars continue to grapple with the legacy of modern and premodern paradigms of sexuality that continue to contend for supremacy in many places. A queer theory school of thought, manifested briefly in the early 1990s as a queer nation movement, critiques the historical peculiarity of the modern homosexual, calling for its deconstruction. Concepts of sin, crime, and sickness all depend on the peculiar process by which heterosexuals produce and reinforce a category of the sexual other through police, medicine, and the mass media. But on the other hand, the queer critique has become possible only because a great many people have been willing to embrace gay and lesbian identities, which means standing up for a right to love and live with persons of one’s choice, and standing against the malevolent designations propagated by states, churches, and culture producers. Today, gay, lesbian, bisexual, and transgendered identities and cultures continue to hold enormous appeal for those struggling in the ‘‘pursuit of happiness’’ against the forces of repression. Pride celebrations have boomed in three decades from a small gathering in New York’s Central Park to a worldwide festival, counting among the largest of celebrations in such cities as Toronto, Sydney, and San Francisco, and serving as symbols around which people mobilize for the first time in small towns and new countries. Despite (or perhaps in opposition to) official silence, or active suppression, people are mobilizing as homosexual people in such places as China, Cuba, and Zimbabwe to claim social and cultural space for themselves.
Criminal law remains a tool held in abeyance in some jurisdictions, but nevertheless ready-athand when clerics, police, politicians, or other homophobes choose to wrap themselves in the flag of ‘‘virtue’’ by attacking ‘‘vice.’’ Vague laws governing censorship, public conduct, and indecency continue to provide warrant for suspending the freedom of speech and association of homosexual people, even where homosexual ‘‘acts’’ are legal. The status of gay and lesbian people today functions as something of an index of the willingness of democratic societies to follow through on their self-proclaimed principles of guaranteeing equality and freedom of their citizens, acting as individuals, in households, and in communities.
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