America’s Queer “Liberty”

The United States’ government looks a little haggard for a mere 231 years old. Congress folk are gunning for the President. The President’s gunning for even more disaster in Iraq. And President Cheney’s gunning to tear down the power balance between the legislative and the executive branch. The Supreme Court, meanwhile, has been leaning so far right, one wonders why it hasn’t fallen over.

As for the gays – well, we’re the government’s the legislative bottom. We may all be able to vote, but not all of us can marry, adopt and, despite 2003’s Lawrence v. Texas, legally fuck in some states. National public approval of gays, however, stands at record high.

As we mentioned in our introduction to our continuing series, America’s Queer “Liberty”, 87% of Americans find homosexuality to be an acceptable “lifestyle”, a clear majority. A clear majority also encourage equal employment opportunity. How can 33 states continue to deny gays a fair chance. Even worse, how can 42 states leave trans folk out in the unemployment cold. Because our government’s got some serious issues. And those issues are just as old – and twice as haggard – as the country itself. This begs the question: what happened to American liberty? And, more importantly, did such a liberty ever exist?

One can’t begin to explore a concept like liberalism without first defining said concept. The definition of liberalism means a lot of things to a lot of people, so we’ll keep our explanation as simple – and as painless – as possible. A political ideology, liberalism puts the individual before the collective. An individual’s right to the now proverbial life, liberty and the pursuit of happiness shall not be impeded by the government.

The liberal idea’s older than Bea Arthur and Rue McClanahan combined, but America’s distinct brand of liberalism finds its most direct roots in The Age of Enlightenment, that glorious 18th century period when men such as John Locke and Jean-Jacques Rousseau concerned themselves with distinguishing between absolute and representative rule. Locke, of course, broke new ground with his Second Treatise Of Civil Government, which played a particularly important role in the formation of America’s constitution. The monarchy had grown far too strong, far too tyrannical. Man needed a little room to breath. That room, paradoxically enough, could only exist within another set of constraints – what Enlightened Frenchie thinker Montesquieu called ‘the rule of law’.

The rule of law applied to all the land, including the government. People and politicos coexisted peacefully in a liberally, legally controlled environment. Consider this explanation from seminal theorist FA Hayek:

The liberal conception of freedom was…one of freedom under a law which limited the freedom of each so as to secure the same freedom for all…The freedom possible in society and restricted by such rules as were necessary to protect the freedom of others.

I can’t murder you and you can’t murder me. No one gets murdered. Sounds swell, right? The young Americans certainly thought so – as they wrote in the Declaration of Independence: [King George III] has refused his Assent to Laws, the most wholesome and necessary for the public good.” The revolutionaries wanted their own laws. They needed some control – to exert it and to bow to its legislative power.

Official orders and edicts were all well and good, but the government needed further regulation. Thomas Jefferson and company had seen what happens when one branch of government exerts too much power. Thus, they employed another one of Montesquieu’s ideas: separation of powers.

Pardon our pedagogy, for many of you already know this, but the legislative, executive and, most importantly, judicial, would exist independently of one another. The legislative writes laws, the executive puts them into action and the judicial branch steps in when the law’s challenged. The American government’s power would be further diffused with federalism: the cumbersome separation between state and central governments. To be fair, the writers of the constitution had to include federalism lest the self-sufficient colonies stage their own revolt. Still, many of our forefathers felt strongly about the federalist principles. The central government would wage war, levy taxes and organize commerce. States would write and enact their own geographically specific laws. A fine theory, yes, but, like so many theories, federalism doesn’t necessarily translate to good policy. One of the meatiest, most robust examples comes from America’s historic – and convoluted – sodomy laws.

Dick-related directives predate the Declaration of Independence. In 1683, Pennsylvania became the first would-be state to outlaw sodomy, which it referred to as an “unnatural sin.” New Jersey soon followed suit and echoed Pennsylvania’s puritanism with the more blasphemous “offenses against God”. The names may have changed, but the song remained the same: vaginal sex rocked. Anal sex? It gave the nascent nation the blues.

According to the sexual activists over at Sodomy Laws, rectal regulation became part and parcel of federalist inclusion.

Every state adopted some form of a sodomy law as it joined the United States, either in acceptance of an unwritten common law or in formal codification. A slow modernization of laws away from a religious doctrine into a secular system reduced penalties over time in a piece meal fashion. All states had laws against sodomy by 1960.

The laws and punishments varied from state to state, but one thing remained the same: vaginal sex stood as the only legal form of intercourse. Some laws covered oral sex, others didn’t. Jail time, fines and rulings varied, as did those charged: some states cracked down on tops, others gave it to the bottoms. Even the names of the offenses changed within the expanding states, as did the type: common law or written statute. Further complicating this federalist cluster fuck, the federal government had to enact its own regulations, including a still-standing law barring soldiers from doing it in the butt.

Every American state had either a common law or a specific statutes by 1960. The tides, however, were already beginning to turn. Sexual policing found its roots in the Victorian era. Yes, the anti-anal laws had been in place, but a rising interest in science, particularly psychiatry, brought the issue to the forefront of the international mind. Homosexuality became one of the many so-called mental illnesses. Gays were sick and needed to be cure, even if it required ultimately detrimental treatments, such as electroshock therapy. Post World War II research debunked many of these theories:

Winds of change began to stir in the 1950s, abetted by the publication of the Kinsey Reports after World War II. These books, one each about male and female sexuality, caused a sensation by suggesting that homosexual conduct was widespread. The psychiatric profession’s view that same-sex conduct was a result of arrested psychological development and mental illness, which had emerged early in the twentieth century and gained general acceptance within the profession by mid-century, began to influence lawmakers, some of whom questioned whether a medical problem should be dealt with through the criminal law.

In the United States, the American Law Institute (ALI), a prominent law reform body that was drafting a proposed Model Penal Code to be considered for adoption by state legislatures, proposed in 1955 that the ban should be limited to public or non-consensual acts.

The ALI’s move may not have been the most robust form of activism, but it trigged a slow erosion of America’s sodomy laws. Six-years later, Illinois would be the first state in the union to legislatively repeal the law. Idaho attempted to do the same in 1962, but changed course after conservatives cried foul. Things remained quiet for the next few years, but that all changed after 1969’s Stonewall Riots. Twenty states repealed sodomy laws during the glittering 1970s.

What led to this massive legislative overhaul? And, more importantly, why did it stall in the 1980s? Find out the next exciting installment of America’s Queer “Liberty”!

[Note: This Thursday edition of America’s Queer Liberty is a fluke. The series will return to its Wednesday slot next week.]

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