Published online 2016 www.nps.gov/subjects/tellingallamericansstories/lgbtqthemestudy.htm LGBTQ America: A Theme Study of Lesbian, Gay, Bisexual, Transgender, and Queer History is a publication of the National Park Foundation and the National Park Service. We are very grateful for the generous support of the Gill Foundation, which has made this publication possible. The views and conclusions contained in the essays are those of the authors and should not be interpreted as representing the opinions or policies of the U.S. Government. Mention of trade names or commercial products does not constitute their endorsement by the U.S. Government. © 2016 National Park Foundation Washington, DC All rights reserved. No part of this publication may be reprinted or reproduced without permission from the publishers. Links (URLs) to websites referenced in this document were accurate at the time of publication. THEMES The chapters in this section take themes as their starting points. They explore different aspects of LGBTQ history and heritage, tying them to specific places across the country. They include examinations of LGBTQ community, civil rights, the law, health, art and artists, commerce, the military, sports and leisure, and sex, love, and relationships. HISTORICAL LANDMARKS AND LANDSCAPES19 OF LGBTQ LAW Marc Stein The American historical landscape is filled with sites where people who engaged in same-sex sex and transgressed gender binaries struggled to survive and thrive. In these locations, “sinners,” “deviants,” and “perverts” often viewed law as oppressive. Immigrants, poor people, and people of color who violated sex and gender norms had multiple reasons for seeing law as implicated in the construction and reconstruction of social hierarchies. Over time, however, people who identified or were classified as lesbian, gay, bisexual, transgender, or queer (LGBTQ) increasingly came to see law as a potential resource for protecting, defending, and improving their lives. In these contexts, law was a complicated and multifaceted resource, simultaneously freeing, limiting, and producing human sexes, genders, and sexualities. This chapter offers an introduction to historical Marc Stein landscapes and landmarks of US LGBTQ law, beginning with the European colonization of the Americas and concluding with developments in the 1970s and 1980s.1 Colonial and Early US Laws When Europeans first invaded the Americas in the fifteenth and sixteenth centuries, they did not generally recognize or respect Native American understandings of sex, gender, sexuality, or law. Unlike Native American societies, the colonies established by Europeans typically criminalized same-sex sex and gender-crossing acts. They did so in the context of broader restrictions on non-marital and non-procreative sex and general bans on deception and disguise. In most cases, Dutch, English, French, and Spanish laws initially applied in their territories overseas, but colonial statutes soon supplemented and superseded European laws. For example, sodomy was made a capital crime by Virginia (1610), Plymouth (1636), and Massachusetts (1641), followed by most of England’s other colonies. These laws generally applied to anal intercourse, sometimes punished other forms of non-procreative sex, and tended to be used to police same-sex sex, sexual violence, and sex with minors. Of the early English colonial statutes, New Haven’s (1656) was unique in referring to acts committed by women, though women in other colonies were occasionally arrested for having same-sex sex. Prosecutions for same-sex sex were relatively rare, but several people were executed for committing same-sex sexual acts.2 1 In this chapter I use gender and sexual terms that are generally favored today (including lesbian, gay, bisexual, and transgender) as well as historical terms (such as “deviant” and “pervert”) that are generally rejected today. I use analytic terms such as “same-sex sex” and “gender-crossing acts” to address behaviors rather than identities or communities. I use “queer” to reference same-sex and gender-crossing desires, behaviors, and identities. I refer to “LGBTQ acts, identities, and communities” when discussing the larger chronology of US history, though I do not mean to imply that LGBTQ identities existed in North America before the late nineteenth century or are relevant in all of the twentieth or twenty-first century contexts that are discussed. 2 Other early sodomy and buggery laws were passed by Connecticut (1642), Rhode Island (1647), New York (1665), New Jersey (1668), Pennsylvania (1676), New Hampshire (1679), South Carolina (1712), Delaware (1719), Maryland (1776), and North Carolina (1778). Early prosecutions for same-sex sex have been documented in Virginia (1624), Massachusetts (1629, 1642, and 1712), New Hampshire (1635 and 1663), Plymouth (1637, 1642, and 1649), New Netherland (1646, 1658, and 1660), New 19-2 Historical Landmarks and Landscapes of LGBTQ Law In colonial America the criminalization of sexual transgression intersected with the criminalization of gender transgression. In 1629, for example, Thomas/Thomasine Hall, a resident of Warrosquyoake, Virginia, was accused of inappropriately wearing women’s clothing, but one of the things that prompted these accusations was a rumor that Hall was having nonmarital sex with a woman, which was a more serious offense if Hall was a man. After intrusive investigations of Hall’s body, Virginia’s General Court at Jamestown decided that Hall was a man and woman and required Hall to dress in partially male and partially female clothing, which was a form of public humiliation.3 Beginning with a brief experiment in the late seventeenth century, capital punishment for sodomy, buggery, and other “crimes against nature” was replaced by less extreme penalties, including castration, whipping, life imprisonment, and lengthy prison terms. Pennsylvania removed its death penalty for sodomy in 1682, but restored it for “negroes” in 1700 and everyone else in 1718. The Continental Army began court-martialing soldiers for sodomy in 1778. In 1786, Pennsylvania more permanently eliminated its death penalty for sodomy; it was followed by New York and New Jersey in 1796, Rhode Island in 1798, and other states in the early nineteenth century. Maryland in 1793 and Virginia in 1800 eliminated the death penalty for sodomy for free people but not slaves. North and South Carolina did not remove their Haven (1646 and 1653), North Carolina (1718), and Georgia (1734). The best documented English colonial case concerns Nicholas Sension of Windsor, Connecticut (1677). See Jonathan Ned Katz, Gay/Lesbian Almanac (New York: Harper, 1983), 66-133; William Eskridge, Gaylaw: Challenging the Apartheid of the Closet (Cambridge, MA: Harvard University Press, 1999), 17-56, 328-272; William Eskridge, Dishonorable Passions: Sodomy Laws in America (New York: Viking, 2008), 16-20, 388-407; Richard Godbeer, Sexual Revolution in Early America (Baltimore, MD: Johns Hopkins University Press, 2002), 44-51; and Stephen Robertson, “Shifting the Scene of the Crime: Sodomy and the American History of Sexual Violence,” Journal of the History of Sexuality 19, no. 2 (2010): 223-242. For New Spain, see Ramón Gutiérrez, When Jesus Came, the Corn Mothers Went Away: Marriage, Sexuality, and Power in New Mexico, 1500-1846 (Palo Alto, CA: Stanford University Press, 1991); and Tracy Brown, “‘Abominable Sin in Colonial New Mexico: Spanish and Pueblo Perceptions of Same-Sex Sexuality,” in Long Before Stonewall: Histories of Same-Sex Sexuality in Early America, ed. Thomas Foster (New York: New York University Press, 2007), 51-77. 3 Kathleen Brown, “‘Changed…into the Fashion of Man’: The Politics of Sexual Difference in a Seventeenth-Century Anglo-American Settlement,” Journal of the History of Sexuality 6 (1995): 171- 193. Jamestown was designated a National Historic Site on December 18, 1940, and added to the NRHP on October 15, 1966. 19-3 Marc Stein death penalties for buggery until 1868-69. By this time most states criminalized sodomy, buggery, and crimes against nature and punished these offenses with lengthy prison terms. Three Ohio cities—Cincinnati (1819), Dayton (1842), and Columbus (1848)—were among the first to pass laws against indecent behavior. Cincinnati and Dayton, Ohio (1849) and Chicago, Illinois (1851) were among the first to prohibit obscene publications and immoral plays. Early state laws against obscenity, which previously had been a common law offense, were passed by Illinois (1845), California (1858), and Pennsylvania (1860). Laws against buggery, crimes against nature, immorality, indecency, obscenity, and sodomy targeted multiple gender and sexual transgressions, but tended to be used to police same-sex sex, public sex, sex work, sexual violence, and sex with minors.4 Before the mid-nineteenth century, state and local governments banned cross-dressing as part of the broader criminalization of deception and disguise. Beginning in the 1840s, however, various cities began to more specifically prohibit men from wearing women’s clothing and women from wearing men’s clothing. Some of the earliest to do so were Columbus, Ohio (1848), Chicago, Illinois (1851), and Wilmington, Delaware (1856).5 These laws joined the broad array of prohibitions on non-normative sex, gender, and sexuality that existed in the pre-Civil War era. 4 Other laws against indecency were passed by Chicago, IL (1851), Louisville, KY (1853), Cleveland, OH (1854), New Orleans, LA (1856), Springfield, IL (1856), Memphis,