The day the Supreme Court declared sodomy laws unconstitutional was a great one. It brought an end to an almost 400-year history of criminalizing same-sex acts that stretched all the way back to the first English settlements in North America.
But the Lawrence v. Texas case was the last step in this process. When the decision was handed down in 2003, 37 states had already eliminated their sodomy laws. The first repeal of a sodomy statute took place way back in 1961, and it occurred right here in Illinois. How did it happen that Illinois led the way? What led state legislators in Springfield to eliminate a law that, in one form or another, had been on the books since Illinois became a state in 1818?
There was a lot going on external to Illinois that helped made it possible. For one thing, there were the Kinsey studies of male and female sexual behavior, published in 1948 and 1953. Both of these studies, as I wrote in an earlier column, received a huge amount of publicity. “Kinsey” became a household word. Around the country, newspapers and magazines discussed the studies. Kinsey himself became something of a celebrity, sought after as a public speaker. A message he drove home again and again was that America’s sex laws made no sense. State legal codes prohibited so many kinds of sex acts that most Americans were lawbreakers. What was the point? Criminalizing all these acts fostered disrespect for the law and made the job of the police impossible.
Meanwhile, in Britain, police crackdowns in the early 1950s had led to the arrest of a number of prominent Englishmen for homosexual acts as well as for soliciting prostitutes. In response, church leaders in Britain, including the Archbishop of Canterbury, pushed for reform of the criminal law. A royal commission was created to study the effects of Britain’s sex laws. Its 1957 report, popularly called the Wolfenden report, strongly recommended decriminalizing sex between consenting adults in private. Like the Kinsey studies, the Wolfenden report received a huge amount of publicity. Mainstream publications like The Economist endorsed decriminalization, calling it “an issue of human freedom.” Newspapers and magazines in the U.S. also reported on the debates going on in England.
But the biggest support for repeal of sodomy laws came from an organization that most Americans had never heard of: the American Law Institute. Founded in the 1920s, it was a professional organization of distinguished judges, law professors, district attorneys, and practicing lawyers. The ALI’s purpose was to study the law and make it more rational and efficient. Most of its recommendations were highly technical and specialized, of interest only to those in the field.
Sometimes the ALI took on big projects, however, and in 1951, it decided to put together a model penal code. Criminal law in the U.S. is largely a state matter. Over time, states kept adding new criminal statutes, but not repealing the old ones. The penal code in most states thus became a wild patchwork of laws that were often inconsistent with each other. Revisions weren’t made to take account of changing times and changing values.
Sex offenses were a big part of the criminal law. In most states there were still laws against adultery, cohabitation without marriage, obscenity, solicitation, public indecency, prostitution, and many other acts. Every state made sex between men a felony, and many also criminalized sex between women. Urging reform of America’s sex laws was obviously a sensitive topic. Would decriminalization imply approval?
Reading the internal minutes of the ALI committee in charge of the sex law provisions is fascinating. In the mid-1950s, none of these lawyers or judges went on record as saying that “gay is good,” thank you! They often use phrases like “abnormal relations,” for instance. But they did come to a majority decision in 1955 that sex between consenting adults in private should not be criminalized. When one member of the committee, a federal judge from North Carolina, protested that the ALI’s work “would be discredited” if it dared to “fly in the face of public opinion,” another replied: “I think it’s a matter … very largely of taste, and it is not a matter that people should be put in prison about.” The decision of this prestigious legal organization to support decriminalization of homosexuality gave cover to state legislatures that took up the project of penal code reform.
Just as the ALI was drafting its model penal code, an effort got underway in Illinois to revise its criminal law. Illinois, of course, had a sodomy law. Over the years, judges had made known their views of homosexuality in cases where convictions were appealed. In 1897 a judge described homosexual acts as “a disgrace to human nature.” A few years later, the Illinois Supreme Court expressed the view that such a crime “cannot be described without shocking the moral sensibilities.”
Illinois was a good example of the need for overall reform of the criminal law. There hadn’t been a full scale rewriting of the state’s penal code since the 1870s, and the code was full of inconsistencies as well as of provisions that no one really wanted to enforce. For instance, state laws stipulated a nine year minimum sentence for receiving stolen property worth only $50, but only a one year sentence for stealing property worth five times that amount. Stealing a car would get you a one year sentence, but stealing a horse in 1954 would send you to jail for a minimum of three years. And if a cop caught a 10-year-old smoking in a public place, the child could be charged with a criminal misdemeanor. The Tribune described the current penal code as a “hodgepodge.” The Sun-Times said it was “cumbersome, confusing, and sometimes contradictory.”
The Illinois and Chicago Bar Associations created a joint committee to begin the massive task of rewriting the state’s criminal laws. Between 1955 and 1960, the committee held open hearings around the state, including two in Chicago. It made use of the American Law Institute’s model penal code. By the end of 1960 it had produced a 318-page book of its proposals to rewrite criminal law of Illinois. Gone was any provision to keep homosexual sex between adults in private a crime.
The state legislature in Springfield held public hearings on the proposed new penal code during the winter and spring of 1961. Interestingly, most of the attention and controversy focused on two key provisions. One had to do with a proposal to transfer sentencing power in criminal cases from juries to judges. Juries, apparently, were easily swayed by skilled defense lawyers, leaving prosecutors angry about light sentences. So, one major part of the new code actually took a “get tough on criminals” approach. Defense lawyers got all riled up about it, but conservative newspapers like the Tribune were all for it.
The other very controversial provision was a liberalization of the state’s abortion statute. At this time, abortion was illegal in every state. Illinois allowed hospital abortions to be performed only in cases where pregnancy endangered the life of the mother. The new code proposed also to permit abortion in cases where the pregnancy had resulted from rape or incest, or in cases where the fetus was found to have “defects.” The Catholic Church in Illinois went ballistic over these provisions, and promised to organize massive opposition against the whole code unless the current restrictive law was retained. The legislature gave in.
With all this debate about sentencing provisions and abortion, the elimination of the Illinois sodomy statute went unremarked upon, at least as far as I’ve been able to find after a first look through Chicago’s newspapers. None of the articles I’ve uncovered in the press from 1960 and 1961 mention the decriminalization of sex between consenting adults in private. Thus, on January 1, 1962, Illinois became the first state without a so-called “sodomy” or “crime against nature” law. You could say it was an historic moment, the first step in a journey that ended with the Lawrence decision in 2003. But I’m not sure that many people, including most gay folks, even knew it.
Copyright 2009 John D’Emilio