The American colonies of England were created beginning more than four decades after the Elizabethan statute reestablishing "buggery" as a temporal crime.These laws did not come off the books with the adoption of the Constitution and the Bill of Rights. Nor did Presidents Washington, Adams, Jefferson et al take action to try to have them removed, nor did the Congress, nor did the Supreme Court. As recently as 1986, the Supreme Court reaffirmed the Constitutionality of sodomy laws.English common and statute law were not necessarily in force in the colonies at the time of their establishment. Three of the original 13 colonies—Delaware, New Jersey, and New York—were not settled by the English and, of the ten that were, only in Maryland and, possibly, Virginia were English laws presumed to be in force from the beginning of colonization without local enactment. Death was the penalty of choice by statute and, in some cases, by usage.33
In both Massachusetts and New Hampshire, early sodomitical activity was not punished in the colony. In Massachusetts, the offenders were returned to England for trial "as the crime deserved." Had English law been considered in force, the offenders could have been tried there. In New Hampshire, apparently nothing happened to the offenders. The officials "did not think fit to try them here."
However, English laws and customs being most comfortable for settlers from England, it was they that generally were adopted by the colonies as they grew in population and felt the need for more social structure.
Virginia had the first written prohibition against sodomy, enacted in 1610. It is of note that this was repealed after only eight years and no other colony had a written law against sodomy until Plymouth adopted one in 1636. (Maryland, founded between those dates, adopted all English laws, including the sodomy law, by consensus, even though none appeared in any written code).
Plymouth Colony had been founded by Puritans who left England because of persecution due to their fundamentalist beliefs. These same Puritans put their beliefs into secular law, showing the same intolerance to other views that theirs had faced in England. Plymouth’s statute outlawed sodomy based on the Biblical proscription in the Book of Leviticus.34 Nearly identical laws were adopted by Massachusetts Bay, Connecticut, New Hampshire, and Rhode Island. This made sodomy a capital offense, just as if the colonies had followed the English statute.
New Hampshire was part of Massachusetts for more than fifty years and, upon separation, enacted a Biblical law very similar to that of its parent colony.
Connecticut, several years after founding, adopted the laws of England formally, then moved to a Biblical statute three years later.
Rhode Island, founded as a religious haven by dissenter Roger Williams, showed no more tolerance than other colonies. Its capital sodomy law also quoted Leviticus.
New York and New Jersey originally were Dutch colonies that were taken over by the English. Dutch criminal law had not been carried to the New World, but there are three known prosecutions for sodomy in what now is New York, leading to at least two death sentences. Authority for the prosecutions apparently rested on "natural law," a religiously oriented belief that there is a higher, immutable law that always overrides the enactments of humans. Once the colonies became English, a sodomy law similar to that of England became fact in each.
Pennsylvania’s Quaker influence is shown by the fact that it generally rejected harsh or sanguinary penalties for crime. Sodomy, a capital offense elsewhere, was considered deserving of no more than six months in jail. However, as Quaker influence waned and Pennsylvania grew more populous and heterogenous, harsh laws based on those of England came to fore there as well.
Delaware originally was settled by Swedes and it had a chaotic legal system for a number of years. There is no evidence that sodomy was illegal during this time. It became an English colony as part of Pennsylvania and, when that Quaker colony adopted a surprisingly lenient sodomy law, it was in force in the Pennsylvania counties now constituting Delaware. After it broke away in a dispute, Delaware rejected Pennsylvania laws for its own, and went some 15 years before outlawing sodomy.
Maryland, upon founding, was given a charter obliquely referring to English laws. Although the charter did not make specific reference to adoption of English laws, Maryland was the one colony that, without question, considered all English laws to be local. There were three sodomy prosecutions from the founding of Maryland until a sodomy law was enacted 161 years later.
Virginia, in 1607 the first of the colonies to be founded, existed for three years without a sodomy law. The first settlers in Jamestown all were male and there is evidence of sexual relations in the colony from its beginning. Three years later, while under martial law, a military regulation was adopted making sodomy a capital offense. After eight years, when the colony had stabilized, the regulation was repealed. The laws of England may have been considered in force by common consent, as Thomas Jefferson mused, because a man was hanged for sodomy in 1625 when there was no statute on the subject. Formal adoption of English law would not occur until 1661.
Farther south, English influence was less pronounced. Both North Carolina and South Carolina were founded in the 1660s, but neither had any prohibition of sodomy for almost a half-century after that. When the colonies did act, North Carolina adopted the laws of England, whereas South Carolina enacted a specific law against "buggery."
Georgia, not founded until 1732, was carved out of South Carolina, but did not receive any of South Carolina’s criminal laws. Only a small portion of English law was considered in force in Georgia, the sodomy law not among it, and none outlawing sodomy was enacted by the colony (or later state) during the entire 18th century. The Georgia colonial legislature even went so far as to criminalize any statement that English law was in force in the colony.
Thus, although 12 of the 13 states had either a sodomy law or the adoption of either English statutory or common law on the books at the time of the adoption of the Bill of Rights in 1791, in only one—Maryland—had there been an unquestioned prohibition throughout its history. In all 12, religious bias was the catalyst for enactment, since Puritan laws in Massachusetts, Connecticut, New Hampshire, and Rhode Island quoted Leviticus and the other colonies, in one form or another, adopted the English proscription, itself progeny of Henry VIII’s struggle with the Pope. Numerous courts made religious arguments in reference to sodomy.35
If they are good laws or bad laws is not what I am arguing. They are constitutional laws, and I agree with Santorum, that if we were to knock away the pillar of constitutionality that supports these laws, it would open a pandora's box that would be to the detriment of all.