Dishonorable Passions Hardcover – May 6 2008
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From Publishers Weekly
Today's battle for same-sex marriage rights is only the latest step in the long struggle by lesbians and gay men to overturn a complex web of state laws banning nonreproductive sexual activity, often by heterosexuals as well as homosexuals. Laws against sodomy—or crimes against nature, as they were called by colonial lawmakers—were based on English common law emanating from Christian interpretations of a few biblical passages. The Supreme Court declared them unconstitutional in 2003. n this fascinating and engaging survey, Yale law professor Eskridge (Gay Marriage: For Better or for Worse?) charts not just the destructive history of those laws, but also the long, complex and often deeply contradictory history of how Americans thought about sex and the right to privacy. While clearly explaining the laws' origins and impact from colonial America through the 19th century, most of the book examines how, from the 1930s onward, sodomy laws increasingly became the legal tool by which homosexuals were denied jobs and even the right to public assembly. Interweaving legal discussion with personal stories and social history, Eskridge gives an incisive, panoramic view of America's (slowly) changing attitudes toward homosexuality, sexual tolerance and personal freedom. B&w photos. (May 5)
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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.
In his earlier published books Eskridge had seemed to ally himself with the radical gay faction. Now, it seems, he has morphed into something like a social conservative.
Eskridge believes that, even after our remarkable legal progress, gays are being held back by formidable reserves of disgust and fear of social pollution. These stark terms, for which he offers little documentation, seem to me to go too far. Still a mass of reservations, all the more persistent for not being (often) avowed, linger among the general public. As Eskridge puts it, many have not been able to bring themselves to acknowledge that homosexuality is a b e n i g n variation. We can have all the legal advances anyone could possibly require without achieving this.
In a pivotal sentence (p. 382) Eskridge makes the following point. "Lawrence [the 2003 Supreme Court decision] should . . . be understood as a challenge for gay people. Recalling an old-fashioned conception of citizenship as entailing obligations as well as freedoms, Lawrence should stir LGBT people to commit themselves to families, communities, and institutions (including religious ones) from which they have been alienated because of sodomy laws, social stigma, and other disabilities."
I readily confess that I am one of those who has been so alienated. I don't see why I should now have to commit myself to a family or a religious institution in order to secure my full civil rights. Still, I would agree that it would help if substantial numbers of gay and lesbian people did so.
But how much would it help? The disgust that homosexuality evokes is a product of several layers of experience and ideology. Ultimately, it is religiously based, since the Bible presents toleration of homosexual behavior as a danger to the body politic. (Yes, I know that John Boswell and others have sought to erase the sting of these texts. For most religious people, however, the sting persists.) Then a wave of psychotherapy crested fifty years ago. Even though most psychiatrists have changed their tune, the notion persists that same-sex behavior is somehow abnormal. Finally, there was the AIDS crisis. Drugs are helping a great many HIV people to lead productive and rewarding lives. And yet, allowing for some monocausal exaggeration, gay people are centrally implicated in this disease, and they will continue to be so perceived.
In short the likely scenario is that in the long term gay and lesbian people will experience a kind quasipariah status. The laws that have been holding us back will finally be abrogated. Vicious name calling, of the sort that prevailed until recently, will be unfashionable. But still, for the foreseeable future, "virtually normal" will be the best we can claim.