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Case For Legal Recognition

In response to a number of scandals and in the tense paranoid social atmosphere of the Cold War, Sir John Wolfenden was asked to examine and report on England’s sodomy laws. This was to begin the modern movement for law[1] reform aimed at more humane treatment of homosexuals. It also sparked a debate about the role of Christianity in English law, with Lord Devlin arguing that Christian moral teachings were the foundation of English criminal law, in particular. In addition to the legal debate, the Church of England set out to examine Christian teachings on the subject, which would lead to the publication of the first major book arguing for a revision to the traditional view, Dr. D. Sherwin Bailey’s Homosexuality and the Western Christian Tradition in 1955[2].

Dr. Bailey outlined how homosexual acts had come to be viewed as sinful. He noted how this had influenced the legal proscriptions on homosexuality. For example, Justinian’s law recited the danger to public safety evidenced by the Sodom story[3], and Elizabeth’s statute declared homosexuality offensive in the eyes of “almighty God.” Homosexuality was under the jurisdiction of the Church and its ecclesiastical court until Henry VIII made buggery a felony in 1533[4]. However, Bailey argued that the degree of persecution and the Church’s role in it had been exaggerated by at least one early gay author.

This newly formed alliance of the law and the Church in persecuting homosexuals occurred at a time when Europeans were engaged in their conquest of the Americas. Their political and monetary ambitions were often allied with an evangelizing fervour that many saw as their Christian duty. In our country, Christian explorers evangelized or exterminated the First Nations when they discovered that these Nations had more tolerant attitudes toward homosexual acts. For example, Balboa had his dogs kill, then eat, a tribe he had found to be rife with “sodomites”. The massacre was proudly reported to his King as “a fine action of an honorable and Catholic Spaniard.”[5].

[1] Sir John Wolfenden, "Report of the Committee on Homosexual Offences and Prostitution" (London: Her Majesty's Stationary Office, 1957). The report recommended that homosexual behaviour in private, between consenting adults (i.e. over 21), be decriminalized.

[2] D. S. Bailey, Homosexuality and the Western Christian Tradition (London: Longmans, Green, 1955).

[3] Ibid. at 76-81.

[4] Ibid. at 149.

[5] W. Williams, The Spirit and the Flesh, (Boston: Beacon Press, 1992) at 137.

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