by Bruce Dunlavy     

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In the recent Obergefell v. Hodges decision, the Supreme Court has affirmed that the law of the land must permit same-sex marriages on an equal basis with heterosexual marriages. In a previous post, we examined the origins of marriage and its original (and present) purposes.  An earlier post focused on the scientific basis of marriage equality.

Until quite recently, society did not accept same-sex marriage. In fact, society did not accept sexual conduct between persons of the same gender. In the United States, it was not until Lawrence v. Texas in 2003 that the Supreme Court struck down State laws prohibiting sodomy (usually intended to mean anal or oral sex, but often broadly and nebulously defined as “unnatural acts”) between consenting adults. Only 17 years earlier, in Bowers v. Hardwick (1987), the court had upheld such laws.

The legalization of sodomy began in 1791, when France enacted its Revolutionary Penal Code, which removed prohibitions against victimless crimes. This was a striking advance, in that it was only five years earlier that Tuscany became the first Western jurisdiction to eliminate the death penalty for sodomy. England, which had formally outlawed sodomy in Henry VIII’s quaintly-named Buggery Act of 1533, did not remove the death penalty from its sodomy laws until 1861.

Capital punishment remains in place for such activity in a handful of countries around the world (almost exclusively in Africa and Asia) and such activity is illegal (with widely varying enforcement and penalty practices) in about 70 nations. In general, the developed world has rather quickly taken on legalization, while the developing world (with exceptions) remains in opposition.

What is the basis for such antipathy? And why do legal restrictions – often harsh – remain in the developing world while they have been abolished in developed nations, mainly within the last half-century? To find the answers, we must ask, “How did it begin?”
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The first prohibitions on sodomy are found in legal and religious writings of the period 1500 – 1800 B.C.E. In Christian and Islamic countries, Scripture is used to justify the criminalization of sodomy, and serves as an example of such prohibitions. Particularly, two verses in Leviticus are usually cited, Lev. 18:22 (“Thou shalt not lie with mankind, as with womankind: it is abomination,”) and Lev. 20:13 (“If a man also lie with mankind, as he lieth with a woman, both of them have committed an abomination: they shall surely be put to death; their blood shall be upon them.”).

That seems straightforward – homosexual activity between men is prohibited, and is so threatening that those who engage in it must be executed. What about homosexual behavior between women? It is not mentioned in these passages; the only prohibition on unnatural sexual activity by women addresses bestiality.

Even today, of the 70 or so nations that outlaw homosexual activity, more than half restrict their ban to male-male conduct only. What is so much worse about male homosexual behavior that it should be singled out for such opprobrium? To find the answer, we must look to the history of social behavior and scientific progress.

Every society, every culture, follows a predictable course of development. In its most primitive state, the society has a high death rate. The reasons are several (disease, malnutrition, predation, etc.), but the effect is that, if the society is to survive, the high death rate must be offset by a high birth rate. The greater the number of offspring produced, the greater the number that will survive to reproduce themselves.

The obvious result of this necessity for a high birth rate is a proscription against any sexual behavior that does not lead to procreation. Homosexuality, oral/anal sex, bestiality, and in many cultures masturbation are all included in the category of non-reproductive sexual activity, and thus are forbidden. The addition of religious imprimatur justifies whatever retribution may be taken against offenders.

In the books of the Old Testament that set out the rules of behavior, there are other passages that specifically refer to situations that were believed to inhibit procreation. It is these that inform the verses in Leviticus cited above and put the prohibitions on male homosexuality into context.

Within the same chapters of Leviticus quoted above are bans on sexual intercourse during a woman’s menstrual period. The observers of the time (and many people yet today) believed that a woman could not conceive during this part of her cycle, so sex would be unproductive and a waste of the man’s “seed,” which was presumed to be “planted” within the woman where it would grow into a future child.

Another passage addresses men who could not father children because of deformity or injury. The first verse of Deuteronomy 23 states, “He that is wounded in the stones, or hath his privy member cut off, shall not enter into the congregation of the Lord.” The term “stones” is clearly intended to mean testicles, and the “privy member” is obviously the penis. Such men would not be likely to father offspring, and thus would be of little use in maintaining the high birth rate those societies demanded. Later in the same chapter is a requirement that men who have ejaculated during sleep separate themselves from the rest of the people for a day or so, apparently to wait before intercourse until their store of semen is replenished to an amount believed more sufficient for fertilization.

Thus it is clear that the prohibitions on non-reproductive sex extend beyond homosexual behavior between men to a range of actions and conditions that would lessen chances for reproductive sex. Two particular practices, though – male homosexuality and masturbation – became the primary taboos in Western society. Perhaps this can be explained by the fact that during the Medieval and Early Modern periods the rules for behavior were being written by monks in monasteries, for whom these practices would be the greatest temptations they faced in their everyday lives.

These prohibitions became entrenched in religious and secular rules beyond the time when they were related to increased reproduction. Once again we find science redefining religious rules, although it took more than a century. The advent of modern medicine and the implementation of healthy practices in water and sewage services and food safety greatly reduced the death rate in advanced societies.

After the “high-birth-rate/high-death-rate” phase, developing societies enter one of high birth rate and low death rate, which leads to a rapid population increase. Only when this increase becomes problematic – often after the beginning of the third phase, in which both birth and death rates are low – do societies recognize that the old prohibitions on non-reproductive sex are no longer necessary. This can take a long time. For example, to this day, the Roman Catholic Church retains an official ban on artificial birth control. It was not until 1965 that the USA Supreme Court, in Griswold v. Connecticut, struck down laws that had prohibited anyone – even married couples – from access to contraceptive devices.

Step by tiny step, the developed world has instituted official acceptance of non-reproductive sex. The faster science and medicine have advanced, the faster such acceptance has advanced. In the USA, acceptance of same-sex marriage has been so rapid as to be definable as “sudden.” The Obergefell decision – as was Lawrence v. Texas, as was Loving v. Virginia, is an example of what is called “the normative power of the actual.”

More and more States, by court decision or legislation, adopted marriage equality, and the Supreme Court saw in that the natural progression sure to follow with the rest of the country. Accordingly, Obergefell made same-sex marriage universal, avoiding more problems in the recognition of out-of-State marriages. Although based officially on the issue of equal rights, Obergefell was an acknowledgement of the inevitable and a short-cut that avoided a protracted battle by a small number of recalcitrant States. As acceptance of a practice expands, legal decisions are made that apply it universally to replace a patchwork of “yes” and “no.”