Gay Rights and the Law: a Different View

Before the widespread availability of contraception in the 1960s, western society, indeed all society, confronted a huge problem: how to curtail sexual behavior which, if unchecked, would lead to large numbers of babies born to teenage girls. The answer of most cultures was simple: massive repression. Confine sex to marriage; limit marriage. It makes sense. Even today, much of American high school and college is designed around delaying parenthood.

Many cultures, particularly Romans and Greeks, encouraged homosexuality among young men because it delayed fatherhood and allowed career development. A Roman patrician would likely have a young man or two as a lover whom he would promote and ultimately adopt before the man married and had progeny - and new homosexual lovers of his own. Illegitimate children were not a big problem in such a society, as they could be adopted. Romans, by the way, are known to have widely practiced "intra-crural" sex (rather than anal sex) which is insertion of the penis between the thighs. Usually the younger man provided the service to his patron, but it was reciprocal as well. If the young man was very heterosexual in his proclivities, prostitutes (who knew how to abort) were common. There were also primitive condoms of lambskin. Coitus interruptus has a Latin name for a reason, too. Roman promotion of cult of virility stood alongside a reality and acceptance of widespread homosexuality. And a world where being a eunuch was a life choice. I remember my own shock at reading Ovid's passage on Narcissus and reading "multi illum iuvenes, multi cupiere puellae" which (poetically untangled)means, "many young men and women desired him." That was a very different world, and for reasons hinted at below, one we are unlikely to return to, although the Roman Catholic church claims we are returning to this (a statement by a Cardinal recently stated this directly).

The question for us is why sexual repression came to include such obviously useful homosexual sex as well. The answer, I suspect, can be seen in a contrast between Roman family law (for patricians) and family law as it developed in the Middle Ages, under the barbarian regimes (German/Frankish). In fact, the glossators on Roman law who begain in the 1400s to "revive" it struggled mightily with differentiating Roman customs from our own. In Roman law, the pater familias had the power of life and death over every member of his family - younger siblings, children, adoptees, wives of male children, grandchildren, etc. Similarly, the pater familias owned everything; the others owned nothing. The fortune passed to the next male in line, whom the pater familias often ADOPTED (see: Julius adopting Augustus). And the adoptee was often such a young man who had performed sexual services. Thus heterosexual marriage was not critical for transmission of property.

In the middle ages, however, the customs of the Germanic tribes and Franks that replaced Roman authority were that illegitimate children could not inherit at all. Women could own property under other conditions (see Queen Elizabeth II) Similarly, property was divided among male heirs equally (thus, Charlemagne divided his kingdom roughtly into thirds: France, Germany, and a middle region - the Alsace/Lorraine). Without marriage and procreation through marriage, none of this worked. Not only does homosexuality have no place in such a world, but it threatens the "point" of marriage - to ensure the passage of property to a new generation. Marriages are also contracted at a very young age in such a society, so there is no intermediary period where homosexuality is 'useful.' And there is no imperial bureaucracy in which one needs a patron to advance -- one *advances* by marrying well.

We live in the embers of such a world.