Have we become, in some ways, even less tolerant? Margot Canaday in The Nation:
In Dishonorable Passions, William Eskridge offers the first comprehensive history of sodomy law in America. Eskridge is a historian and a law professor at Yale who also wrote a brief that was cited repeatedly in Kennedy’s opinion, and the energy in the book barrels toward Lawrence. It’s hard, really, to imagine how it could be otherwise, especially as the Lawrence decision provides Eskridge with a gay civil rights story that has a beginning and an end (such stories being fewer and farther between than you might realize). In writing from the vantage point of Lawrence and gay civil rights, Eskridge treats sodomy in a way that mirrors our culture’s treatment of sodomy more generally. Both make it fundamentally about homosexuality. But sodomy, as Eskridge told the Court–and also tells readers–technically isn’t about homosexuality at all. Rather, it’s about sex without procreative possibility (which can be hetero as well as homo sex). Because sodomy has come to be seen as emblematic of homosexuality, however, much of the career of sodomy law in modern America has been a command performance as something other than what it really is. And that is what allowed historians–called upon to show that policing homosexual behavior was not, in fact, the time-honored tradition conservatives claimed it to be–to assume center stage in Lawrence. All those years in the archives: who knew they would matter so much?
Take the scholarship on the colonial era, with which Eskridge begins his account. During the 1600s, the American colonies adopted sodomy (or “buggery”) laws that prohibited bestiality as well as anal sex between either a man and a woman or between two men. (New Haven Colony was rare in including sexual acts between women as part of its sodomy prohibition.) Punishment–which included death–was draconian, but the laws were very rarely enforced. Historians know of less than ten executions for sodomy throughout the seventeenth century. Of those few, almost all involved assault or sex with animals. These laws were not directed in any particular way toward homosexuality. Indeed, they couldn’t be–the idea that there was a type of person who was a homosexual didn’t even emerge until the late nineteenth century, a result of urbanization, industrialization and the development of medical/sexological discourse. But while these laws weren’t about discouraging homosexuality per se, their architects sought to regulate sexual behavior more generally by steering sexuality toward procreative marriage; protecting women, children and weaker men from assault; and maintaining public order and decency.
Eighteenth-century Americans were even less likely to police sodomy than their seventeenth-century forebears.