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To some Americans, it seems obvious that consenting adults should be able to have sex with whomever they want; to others, it seems obvious that such things should happen only in marriage. Not only should homosexuals not be sleeping together, say some in this latter group, but also if our laws don't restrict such activities, the homosexuals are going to be recruiting our children and who knows what else will happen. Theological and legal restrictions and punishments for sodomy go back for millennia, but American laws about sodomy came into their own in the nineteenth century, and have persisted, although they have recently lost much of their power to proscribe behavior. In _Dishonorable Passions: Sodomy Laws in America 1861- 2003_ (Viking), William N. Eskridge Jr. has given a big and exhaustive history of such laws. A law professor himself, he filed an amicus brief for the judgement in _Lawrence vs. Texas_ whose 2003 date indicates it is the climax of his book. Eskridge documents a change in national legal philosophy whereby adult sexual activity was acknowledged to be best regulated by the conscience of those involved, and for many reasons is best left alone by the government.
Blackstone referred to "the infamous crime against nature" and this particular wording is well known. The nature of this particular crime, however, has always been vague, allowing the definition to be expanded as those in power wished. Eskridge shows how legislatures had to specifically incorporate fellatio or cunnilingus (and sometimes even masturbation) into sodomy laws if they wanted to prosecute such acts. Sometimes there was no allowance for being married, so that married couples who enjoyed oral or anal sex were breaking the law, although no state went after these particular miscreants. The new laws were seldom used, too, on unmarried heterosexual couples except for purposes of prosecuting prostitution, so that the laws against sodomy were in fact laws against homosexual behavior. In 1982 in Atlanta, Michael Hardwick was arrested for oral sex with another man, and local ACLU attorneys filed suit on his behalf. In 1985, the Supreme Court ruled that Georgia had acted properly. It was not until 2003 that the Supreme Court got a chance to change the decision. It was a more conservative court at that time, and the country had gone through a spell of politically powerful Christian conservatism. The most conservative members would have kept the sodomy laws in action in considering _Lawrence vs. Texas_, but they were in a 6 - 3 minority. It was yet another case in which police had conducted a search of questionable ethics and legality into the apartment of one John Lawrence, and found him in bed with another man. Justice Anthony Kennedy in his majority opinion wrote, "Bowers was not correct when it was decided, and it is not correct today."
Much of Eskridge's book is of legal analysis deeper than many layman will enjoy, but there are details here of the lives of, say, Bowers and Hardwick, and not just their legal cases. There are descriptions of lawyers on both sides of issues, and the judges who ruled on the cases, so that the book provides a picture of how the law works and how it has come to allow consensual sodomy today, while still capably prosecuting forced sex or sex upon minors. Given the subject, there are flashes of humor in what is otherwise a solidly serious tome. For instance, in the 1961 decriminalization debate in the Illinois capitol, one exasperated representative exclaimed that the only way sex would in the future be illegal in his state was "... if you're doing it on the front porch and blowing a bugle! And you can do it with either sex!" Eskridge notes that there was an embarrassed silence, and then bill for decriminalization was passed. All the battles are not now won; Eskridge writes, "The state can no longer legislate gay people as outlaws, but neither must it treat sexual variation as completely benign or neutral... The United States has not become a nation of moral liberals generally, and certainly not as regards homosexuals." The current controversies are over gay marriage or partnership agreements, and the controversies rage, but at least the era of legal persecution for the act of sodomy itself is over.