Trump, The Supreme Court, And The Rights Of Gays And Lesbians

02/08/2017 07:08 pm ET Updated Feb 08, 2017
MarcBruxelle via Getty Images

With the nomination of Judge Neil Gorsuch to serve on the Supreme Court of the United States instead of Chief Judge Merrick Garland, and with the possibility of another Trump Supreme Court nomination at some point down the road, it is useful to reflect on the history of homosexuality in Western culture and on the pivotal role the Supreme Court has played in helping to shape our nation’s laws in this regard.

The plain and simple fact is that, with two Trump appointments to the Supreme Court, should that come to pass, we can expect significant changes in the way the Court approaches the rights of gays and lesbians in the future. Before we get to that point, it is important to understand how we got to where we are today. It is only with that understanding that we can truly comprehend the magnitude of the challenge ahead.

In this piece, the first of three I will post in the next week, I will briefly explore the history of homosexuality from the ancient world through the 1950s. Each of these posts, I should note, are drawn in part from my forthcoming book, Sex and the Constitution (now available on Amazon). I hope you will find this history instructive.

The pre-Christian world generally thought of sex as a positive part of human nature. It did not see sex as bound up with questions of sin or religion. The ancient Greeks, for example, focused, not on sexual “sin,” but on whether an individual’s conduct was harmful to others.

This extended even to homosexuality. Indeed, same-sex sex was a common feature of classical Greek sexual life, and Greek poetry, history, and literature celebrated such relationships and identified them with love, honesty, integrity, honor, and courage. Similarly, although Roman sexual life was different from that of the Greeks, the Romans too celebrated sexual pleasure and neither Roman religion nor Roman law condemned same-sex sex.

The emergence of Christianity, however, produced a profound change in the prevailing understandings of sex. By the end of the fifth century, Christianity had come to condemn sexual desire as inherently shameful and as an evil temptation that must be suppressed.

This shift occurred over the course of several centuries, but it was Augustine who crystallized the early Christian understanding of sex. In a critical leap, Augustine linked sexual desire to the Fall of man. Adam’s transgression, he argued, had not been one of disobedience, as the ancient Hebrews had believed, but one of sex.

Augustine’s vision ultimately shaped the future, not only of Christianity, but of Western culture and law, more generally. During the next thousand years, Christian dogma attained not only religious, but also social, political, and legal authority. The sin of “sodomy” came to be seen as uniquely dire, for as the biblical story of Sodom had taught, for this particular sin God will punish not only the sinners, but also those who fail to prevent the sin.

It was not until the thirteen century, though, that same-sex sex came for the first time to be declared, not only a sin, but a crime. That is, in a critical step, the Church now conscripted the secular law to extend its prohibition on same-sex sex not only to those who shared the faith, but to all persons, regardless of their personal religious beliefs.

Criminal statutes against same-sex sex were now enacted throughout Europe, and because of the heinous nature of this crime, these laws called for homosexuals to be castrated, dismembered, burned at the stake, drowned, hanged, stoned to death, decapitated, or buried alive. In short, homosexuals for the first time became the object of a systematic program of extermination.

By the time of the American Revolution, the American colonies, under the influence of the Enlightenment, had stopped using the criminal law to prosecute most forms of consensual sex – except for the crime of sodomy. Indeed, sodomy remained a felony in every state in the nation for the next two hundred years, although the law was almost never enforced.

Until the late nineteenth-century, it was generally assumed that individuals who chose to engage in same-sex sex were no different than other individuals who chose to engage in other types of criminal or sinful behavior. Engaging in homosexual sex, like engaging in robbery or murder, was simply a choice. That assumption began to be questioned, however, in the late nineteenth-century, as medical authorities became interested in the issue.

For the first time, persons drawn to same-sex sex began to be seen as individuals possessed of a distinctive psychological identity. It was in this era that the concept of the “homosexual” first came into being. Leading studies of homosexuality in the late nineteenth century posited that homosexuality was a pathology and that persons afflicted with this pathology were “strange freaks of nature.”

Physicians in this era proposed a broad range of “remedies” for homosexuality, including hypnosis, psychoanalysis, sex with prostitutes, intense bicycle riding, rectal massage, burning the neck and lower back with hot irons or chemicals, electric stimulation, castration, and clitorectomy. Many doctors recommended the sterilization of homosexuals in order to prevent the condition from being passed on to the next generation, and by 1938, 32 states had enacted compulsory sterilization laws aimed at homosexuals.

Also in the 1930s, the image of the homosexual took on an increasingly sinister cast. A growing public anxiety over sex crimes now recast the dominant image of homosexuals not only as individual who engaged in immoral sex with other homosexuals, but as dangerous psychopaths who were naturally inclined to commit the most unspeakable crimes.

Demonized now not only as perverts, but as obsessive child molesters as well, homosexuals became the new “enemy of the people,” and arrests for sodomy increased dramatically in the 1930s.

During World War II, the United States for the first time attempted to prevent homosexual men and women from entering the military, and those who were discovered in the military were discharged in proceedings that often left them branded for life.

Then, with the advent of the Cold War, things got even worse. Fearful of domestic subversion, Americans turned with a vengeance against homosexuals. The conflation of “Communists and queers” seemed only logical, for Americans viewed communism as atheistic, un-Christian, immoral and degenerate. As one congressman asserted in 1950, “the Russians are strong believers in homosexuality.”

By 1950, the “Lavender Scare,” as it came to be called, was well underway. Government agencies began using lie detectors to determine whether their employees were homosexuals, the FBI compiled lists of suspected homosexuals, and President Eisenhower issued an Executive Order officially declaring “sexual perversion” a serious security risk.

In a society in which the dominant religion excoriated homosexuality as a heinous sin, the law branded it a vicious crime, and the medical profession diagnosed homosexuals as diseased, the vast majority of individuals who harbored homosexual impulses did their best to hide their secret shame from family, friends, neighbors, employers, and associates. The terrible fear of discovery kept the secret lives of most homosexuals invisible, even to one another.

Indeed, even civil rights groups turned their backs on gays and lesbians in this era. In 1957, for example, the national board of the American Civil Liberties Union declared that “it is not within the province of the [ACLU] to question the validity of laws aimed at the suppression or elimination of homosexuals.” And that brings us to the 1960s. . . . Stay tuned.

CONVERSATIONS