qualis nox fuit illa, di deaeque, quam mollis torus, haesimus calentes et transfudimus hinc et hinc labellis errantes animas. —Petronius, Satyricon1 Our ideal is not to experience desire at all. —Clement of Alexandria, Stromateis2 The classical age discovered the body as the object and target of power. —Michel Foucault, Desire and Punishment3
In the passage from Petronius’ Satyricon quoted above, Encolpius describes in lyric terms his passionate encounter with Giton after their return from Trimalchio’s banquet: What a night that was, you gods and goddesses, how soft our bed, as we hotly clung to each other, and our souls traveled back and forth between our lips.4 Written in Neronian times, Petronius’ novel recounts in a cheerful manner the adventures and misadventures of three homosexual youths. Indeed the Satyricon has been called “one of the most comprehensive accounts of homosexual activity in Roman
Petr. Sat. 79.8 Clem. Alexandria, Stromateis 3.7.57 3 Foucault, Foucault Reader, 180. 4 The translations in this paper are my own unless otherwise noted. 1 2
times,”5 and its author clearly describes romantic love as an inevitable event among gay persons, one in which the soul of one partner is able to integrate with the soul of the other—“our souls traveled back and forth between our lips.”6 Petronius follows a long line of writers going back to the second century BCE with whom male-male relations had become a fashionable literary theme—the writings of Catullus, Propertius, Lucretius, Virgil, Horace, Ovid, Martial and Juvenal also provide ample evidence of a widespread social acceptance of love between men.7
Richardson, “Homosexuality,” 105. Petr. Sat. 79.8. A shuttling of souls back and forth during lovemaking evidently applies to heterosexual lovers as well, as in Petr. Sat. 132, where the Penguin translator ungenerously confuses telepathic communion with heavy breathing: “Our bodies wrapped in a mutual embrace united even our very breaths,” (Petr. Sat. 132, J.P. Sullivan tr., 149). The notion of a merging of souls on a same-sex basis would later be enthusiastically endorsed in the writings of medieval churchmen. In an epitaph written for two friends, Alcuin (c. 735-804), for example, writes: 5 6
Invidus hoc templum nunquam pertranseat hostis, ne caros animis subito disiungat amicos, quos Christi caritas caros coniunxit amicos. Let the envious enemy never pass through this temple Lest he suddenly separate the souls of these dear friends Whom Christ’s love has joined together as loving friends. Stehling, Poems, 27. For a detailed presentation of these writers’ views on homosexuality in the Republic and early Principate see Cantarella, Bisexuality, 120-154. In this paper the terms “homosexual” and “gay” are used interchangeably. To avoid a theoretical discussion of how homosexuality can or should be defined, we refer to homosexuals simply as persons often attracted to members of their own sex (desire), culminating or not in sexual relations (practice). Only male homosexuality is addressed, due to insufficient information in the period about female homosexuality 7
Further evidence supporting this acceptance may be assumed from the absence of any contemporary legislation known to us that forbade homosexual practice in any general sense. Fourteen of the first fifteen Roman emperors might be assumed to be promiscuously gay, if the biographical stories and anecdotes related by Suetonius and Tacitus were credible. As Gibbon discreetly noted, “We may remark, that of the first fifteen emperors, Claudius was the only one whose taste in love was entirely correct.” 8 If the prevailing Roman moral code in the first and early second centuries CE had attached significant opprobrium to homosexual practice, or if the state had actually criminalized it, it seems very unlikely that contemporary historians would have been eager to recount gay episodes involving the leaders of the Roman nation in such an offhand fashion. However, the following centuries produced a remarkable seachange in the public and institutional perception of homosexuality. Under constant attack from Christian authors from the third century onwards, it came to be seen as a mortal sin which could lead to excommunication from the Church, and, as we shall see below, it eventually became a capital crime during the reign of Theodosius I. By 534, the Code of Justinian clearly defined homosexuality in terms of Christian moral teachings and likewise brutally prescribed death or castration to adult males having same-sex relations. This paper will attempt to describe the process by which this change from acceptance to condemnation occurred, in the hope that we can gain insight into the process by which a society, in reaction to religious ideology, and for the first time in Western history, acted to persecute and attempted to eliminate a sexual minority.9 2. Gibbon, History, 101 no. 40. For the purposes of this paper, we assume an essentialist position, recognizing that homosexuals have existed as a minority in all societies at all times, although not necessarily as a recognized, visible, or self-aware community within a particular society. Although respecting the wish of some scholars to use the word “same-sex” to replace “homosexual,” we do not regard it as relevant from an essentialist stand-point. 8 9
In 313 the Edict of Milan, jointly issued by Constantine and Licinius, ended government-sanctioned persecution of religious minorities and effectively legalized Christianity. During the formative era of the Church in the three centuries preceding, commentary on homosexuality, although universally derogatory, is comparatively infrequent. It begins with the letters of Paul of Tarsus and continues with random comments included in the writings of the ante-Nicene fathers. Paul made three likely references to homosexuality in his letters written before 65 AD. He writes in 1 Corinthians 6: 9, 10: “Do you not know that the wicked will not inherit the kingdom of God? Do not be deceived. Neither the sexually immoral… nor male prostitutes nor homosexual offenders… will inherit the kingdom of God.” 10 In 1 Timothy 1: 9, 10 Paul writes further 11 that “the law” is made for the sake of “law-breakers and rebels,” among which are numbered “adulterers and perverts.” However, it is not altogether clear if the two Greek words used by Paul to refer to homosexuals, μαλακοὶ and ἀρσενοκοῖται, actually do so, as modern Bible translators have generally assumed. Boswell discusses alternate readings of both terms,12 and a lively debate has ensued whether ἀρσενοκοῖται designates male prostitutes rather than homosexuals as a group of persons.13 A third reference in Romans 1: 27 is less ambiguous: Paul states that “…Men also abandoned natural relations with women and were inflamed with lust for one another. Men committed indecent acts with other men, and received in themselves the due penalty for their perversion.” Paul again adds the persons thus described to his catalogue of sinners, and his description of those we probably today Bible quotes in this paper are taken from Holy Bible, New International Version, 1984. 11 Or not: recent research suggests that First Timothy was not written by Paul. 12 Boswell, Christianity, 346-348. “Appendix I: Lexicography and Saint Paul” in the same volume gives an extensive analysis of the term ἀρσενοκοῖται and its various translations over a period 2000 years. 13 See for example Wright, “Homosexuals,” 125-153. 10
refer to as homosexuals is limited to certain undefined, but nonetheless intolerable practices or behaviors. Yet Paul regards homosexuality as just one among many forms of sinful behavior; he does not rank it any higher than the others, and he refers to it very occasionally. He does not refer to homosexuals as a separate class of persons, and his concern is only with the “indecent acts” which he regards as sinful. Since there is no mention of homosexuality found in the Gospels or in the Book of Acts, it seems evident that the matter was not one of great significance for the first Christians. This assumption, together with a philological questioning of the Latin and Greek vocabularies which have been thought to refer to same-sex relations, is included in what is referred to as the “Boswell thesis.”14 Boswell argues that Christianity originated in an environment that was basically tolerant of same-sex eroticism, and that there exists nothing in scripture and little elsewhere in the early Christian tradition that articulates a hostile evaluation of homosexuality. 14 Although Christian teachings are universally and consistently negative from the first century onward, Boswell is probably correct to point out that the matter was not of great importance on the agenda of the early church. 3. To see how anti-homosexual sentiment developed after the death of Paul until the legalization of the Church under Constantine, we must turn to the writings of such early Christian authors such as Clement of Rome, Polycarp, Athenagoras, Tatian, Theophilus, the authors of the Epistle of Barnabas and the Didache, Clement of Alexandria, Tertullian, and Origen. Although homosexuality is evaluated negatively by all these writers, it is important to note that it is done so in terms of a growing disparagement of almost any kind of sexual activity. Following Paul’s lead, they first list homosexuals among other types of sexual offenders; only as time progresses will they be placed at the head of the list. For a detailed explanation of the “Boswell thesis” see Kuefler, The Boswell Thesis, 2-3. 14
Polycarp takes up the Pauline cudgel by announcing that “Lust of any kind makes war upon the spirit, and neither fornicators nor the effeminate nor sodomites will inherit the kingdom of God....” 15 This passage replicates Paul’s vision of the flesh and the spirit engaged in a state of apparently endless conflict. The Epistle of Barnabas admonishes, “Do not fornicate; do not commit adultery; do not practice pederasty....”16 Clement of Rome quotes Paul directly by saying that “neither fornicators, nor homosexuals… will inherit the kingdom of God,”17 while the Didache repeats The Epistle of Barnabas’ trilogy of sexual transgressions: “You will not commit adultery, you will not corrupt boys, you will not have illicit sex.”18 The frequent reiteration of these Pauline-style formulations supports the argument that the early church’s hostility towards any kind of sex outside marriage stems not from traditional Greco-Roman moral concepts, but primarily from the Jewish law of the Old Testament. Being of Jewish background himself, Paul evidently shared the ancestral, Biblical views of illicit sex, and the ongoing discovery of the Old Testament by many early Christians, combined by the enormous respect that was accorded to Paul’s teachings, may have facilitated their endorsement of his views. Tatian suggests that even the pagans may have endorsed the Christian program, the citizens of Rome excepted: “Pederasty is condemned by the barbarians. However, by the Romans it is honored with certain privileges. In fact, they try to collect herds of boys, like grazing horses.”19 Athenagoras professes shock at various pagan excesses: “They do not abstain even from males, males with males committing shocking abominations, outraging all the noblest and comeliest bodies in all sorts of ways.” 20 Theophilus, Bishop of Antioch, adds pederasts to the criminal line-up: “Show me yourself whether you are not an adulterer, a fornicator, a thief, a robber. Show me that Polycarp, Epistle, 78. Epistle of Barnabas, 62. 17 Clement of Rome, First Epistle to the Corinthians, 26. 18 Didache, 2.2. 19 Tatian, Address to the Greeks, 28. 20 Athenagoras, A Plea for the Christians, 34. 15 16
you do not corrupt boys. …For God is not manifest to those who do these things.”21 Tertullian and Clement of Alexandria are the two most effusive of the ante-Nicene church fathers writing about moral issues at the beginning of the third century, and their complaints regarding homosexuals are as varied as they are incessant. “Men play the part of women, and women that of men, contrary to nature,” writes Clement. “Women are at once both wives and husbands…. O miserable spectacle! Horrible conduct!“22 More favorably disposed to the Romans than Tatian, Clement had also convinced himself that “The whole earth has now become full of fornication and wickedness. I admire the ancient legislators of the Romans. These men detested effeminacy of conduct. The giving of the body to feminine purposes, contrary to the law of nature, they judged worthy of the most extreme penalty.”23 Hardly less fortunate, on the other hand, were the residents of Sodom, for “The fate of the Sodomites was judgment to those who had done wrong, and instruction to those who hear. The Sodomites had fallen into uncleanness through much luxury. They practiced adultery shamelessly, and they burned with insane love for boys.”24 Tertullian believes that “The Christian man confines himself to the female sex,”25 but he must stay out of her clothes, since “I find no dress cursed by God except a woman’s dress on a man. For he [God] says, ‘Cursed is every man who clothes himself in woman’s attire.’”26 When the clothing is cast aside, Tertullian scolds: “I should suppose the coupling of two males to be a very shameful thing....”27 Later in the third century, Origen reverts to the Pauline strategem of ranking homosexuals on a list of lawbreakers, but this time upgrading gay persons to an equal status with homicides: Theophilus, Theophilus to Autolycus, 2. Clement of Rome, The Instructor, 3.3. 23 Clement of Rome, The Instructor, 3.3. 24 Clement of Rome, The Instructor, 3.8. 25 Tertullian, The Apology, 46. 26 Tertullian, An Answer to the Jews, 16. 27 Tertullian, Against the Valentinians, 9. 21 22
“Such sins are committed by fornicators, adulterers, abusers of them-selves with men, effeminate men, idolaters, and murderers.”28
4. The fourth century marks the dividing line between the tolerance of homosexuality in the ancient world and the outset of its criminalization under the newly Christianized empire. The new century begins with a church council held in Elvira, Spain. The dates are not exactly clear; some scholars think it was held from 300 to 303, others suggest in 305 or 309. 29 Scholars do agree however that it was the first council to regulate sexual behavior in conformance with Christian moral teachings. It adopted eighty-two canons, thirty-seven of which concern sex, 30 indicating that by 300 CE the Spanish church was taking the subject very seriously. The single canon that pertains to homosexual behavior targets stupratores puerorum, “defilers” of boys, who are to be denied the sacrament even at death.31 The same punishment obtains for women adulterers, panderers and prostitutes. The fact that no mention is made of samesex relations involving either adult men or women at this council suggests that the protection of minors may have been a more important consideration than actions against homosexual offenders generally. Another church council met in Ancyra in Asia Minor in 314. Like the council in Iberia, it dealt with such matters as the conduct of virgins in the Christian community. 32 The tenth canon adjudicates the right of deacons to marry under prescribed circumstances, while Quoted in A Dictionary of Christian Beliefs, 347. “Elvira, Council of.” Encyclopædia Britannica. 2006. Encyclopædia Britannica Online, http://0-search.eb.com.opac.sfsu.edu:80/eb/article9032483, accessed Nov. 24, 2004. 30 Greenberg, Construction, 227-228. 31 Boswell, Christianity, 179. 32 For a discussion of virginity at these councils see Elm, ‘Virgins of God,’ 25-29. 28 29
the seventeenth punishes those guilty of “bestial lust” with exclusion from the sacrament and a penance of at least twenty years’ duration. There has been recent debate whether the term “bestial lust” refers to homosexuality or to bestiality, 33 but the significant point is that this canon became the governing authority for all later ecclesiastical laws regulating homosexual behavior. From the evidence provided by these early councils and the condemnatory writings of the early fathers, it is clear that sexual renunciation was already an established church policy by the reign of Constantine. His recognition of Christianity as a state-authorized religion in 313 did not lead immediately to legislation against homosexuals, but Constantine is reported to have released two ordinances against “homosexual priests.” In his Life of Constantine, Eusebius writes: “To those in Egypt and especially Alexandria, who had a custom of worshipping their river through the offices of effeminate men, another law was sent out, declaring that the whole class of homosexuals should be abolished as a thing depraved, and that it was unlawful for those infected with this gross indecency to be seen anywhere.”34 If Eusebius’ report is true, and if the Greek word ανδρογυνος35 does signify “homosexual” in any modern sense, this not only marks the first record from the Late Roman Empire of legislation prohibiting gay behavior, but may indeed also be the first legislation anywhere that targets homosexuals. But however we may read this, it is clear that the criminalization of homosexuality is on the agenda by the reign of Constantine. Eusebius reports further that in the province of Phoenicia (in modern Lebanon), Constantine shut down a temple dedicated to the Boswell, Christianity, 178, no. 32. Eusebius, Life of Constantine, 4.25.2. 35 Eusebius, Über das Leben des Kaisers Konstantin, 128. Boswell says that the term is used more frequently in Patristic Greek to mean “effeminate” than in its original meaning of “hermaphrodite,” but could have been conflated with “homosexual" (Boswell, Christianity, 68, no. 30). Ramsay MacMullen, on the other hand, translates the passage by Eusebius with the words “eunuch” and “androgyne,” (MacMullen, Christianizing, 50). 33 34
“hateful demon Aphrodite.”36 “This was a school of vice for all dissolute persons,”37 not excluding γυννιδες ανδρες,38 “womanish men, who were not men but had rejected the dignity of their nature” and who had “propitiated the spirit with their sick effeminacy.” 39 The Emperor is said to have used military force to raze the place to the ground, in addition to several other temples known for other forms of sexual profligacy or free love, as well as temple or ritual prostitution.40
5. So far we have regarded the church as the primary agent that transformed Roman culture and law in reference to same-sex acts. Before examining the legal prohibitions of homosexuality that started to appear in the imperial reigns after Constantine, the negative attitudes that were developing in the non-Christian community against sexuality should also be considered. The discussion about the extent to which the “pagan moral code” influenced social attitudes seems to have been inaugurated by A.H.M. Jones, who suggested that “in their practical precepts there was also much in common between paganism and Christianity.” 41 Jones then notes that “both the Christian and the Greco-Roman code condemned homosexuality….”42 Eusebius, Life of Constantine, 3.55.2. Eusebius, Life of Constantine, 3.55.3. 38 Eusebius, Über das Leben des Kaisers Konstantin, 108. Perhaps "girly men" in modern parlance? 39 Eusebius, Life of Constantine, 3.55.3. 40 For other punitive actions by Constantine against pagan temples motivated by sexual issues see Barnes, Constantine and Eusebius, 247. 41 Jones, Later Roman Empire, 970. 42 Jones, Later Roman Empire, 972. 36 37
The difficulty with this line of reasoning rests in the doubtful assumption that there existed a definable pagan moral code concerning sexual practices which affected the lives of a substantial number of persons living in the society. In fact illiteracy in the late Roman empire was common, which meant that the Stoic and Platonic philosophic traditions, by this time swollen with a few centuries of accumulated commentary, would not have been studied by anyone but a small number of educated people. For the plebs at large, traditional Roman religion did not prescribe an agenda of practical morality for its adherents, sexual or otherwise. Contrast this with the activities of the church, which provided a constant flow of sermonizing on moral topics on at least a weekly basis to everyone in the community, literate or not, and which added the interesting wrinkle of threatening offenders with everlasting punishment in an eternal afterlife.43 Intermittent grumblings from Greco-Roman Stoic and Platonic philosophers about the advantages of sexual abstinence were induced mainly by reasons of medical caution, or else in the interest of accumulating vital energy or force. Stoic ascetic precepts, which some scholars believe to have originated with various regimens calculated to enhance performance by athletes in the Olympic Games,44 completely lacked the kind of religious context, the doctrinal regime and sense of moral urgency which Christianity espoused. Tradition-based arguments by non-Christians against homosexual conduct must rather be seen in terms of a desire for increased “virtue,” in the sense of physical and psychic energies to be achieved through a stifling of the passions in general. In other words, the aspiration is towards moderation and not repression. Zeno and Epictetus clearly accepted homosexuality, and Seneca
Foucault also is skeptical of attempts to derive Christian from pagan ethics; see Care of the Self, Conclusion, 235-240. 44 “Asceticism.” Encyclopædia Britannica. 2006. Encyclopædia Britannica Online, http://0-search.eb.com.opac.sfsu.edu:80/eb/article-432. Accessed Nov 24, 2006. 43
himself was known as a homosexual. 45 Some ancient philosphers provided warnings about males sacrificing their masculine identity by behaving in allegedly feminine ways: this adverse mixing of gender attributes is assumed to lead to a diminution of physical strength and vital force.46 It is important to understand however that there occurred in non-Christian society in the fourth and fifth centuries an increase of interest in abstinence and a deepening of sexual pessimism as well. We can observe this in the writings of Ammianus Marcellinus, who often adds a character evaluation of the different emperors he writes about. About the Emperor Julian, for example, Ammianus says approvingly: “To begin with he was so spectacularly and incorruptibly chaste that after the death of his wife he never tasted the pleasures of sex....”47 In this respect his continual exercise of selfcontrol differentiated Julian from his Persian opponents, who were “inordinately addicted to the pleasures of sex” and who found “even a large number of concubines hardly enough to satisfy them.”48 Julian, on the other hand, dividing the spoils after a victory over the Persians, “would not touch or even look at any of the lovely young girls who were captured, though Persian women are renowned for their beauty.”49 Referencing Plato on the “tyranny” and “slavery” of love, Ammianus adds that Julian was fond of quoting a saying by the lyric poet Bacchylides “to the effect that chastity adds lustre to a life of high ideals.” 50 It is difficult to imagine Suetonius or Tacitus dispensing this kind of praise to a Roman emperor of the first century. Boswell, Christianity, 130. For a more detailed review of attitudes toward homosexuality expressed by Greek and Roman philosophers, see Greenberg, Construction, Chapter 5, “Sexual Asceticism in the Ancient World.” 47 Ammianus, Later Roman Empire, 25.4.1. 48 Ammianus, Later Roman Empire, 23.6.75. Ammianus also dispassionately remarks in 23.6.75 that the Persians “do not practice pederasty”—implying perhaps that it was still going on locally? 49 Ammianus, Later Roman Empire, 24.4.26. 50 Ammianus, Later Roman Empire, 25.4.1. 45 46
There does seems to have developed in the later Roman Empire a kind of collusion of perception about morals between Christians and non-Christians, the latter seeking justification by referencing a literary discourse going back for many centuries. Despite Julian’s relapse into paganism, his views on chastity and his reluctance to marry for a second time would logically have found the approval of a moral rigorist like Tertullian. It is possible that Christianity, now or soon to be in the ascendant, provoked a defense reaction on the side of the opposition. In any event it must have annoyed the “pagans” considerably to witness the Christians presenting themselves as the sole arbiters of moral order. And if it is true that one doesn’t find equivalent examples of non-Christians fulminating against homosexuality in the fourth and fifth centuries, it is perhaps noteworthy that in the literature of the period known to us, no one seems to be advocating it either.51 6.
Despite occasional attempts to regulate the exoleti, male prostitutes who seemed to have constituted something of an ongoing embarrassment for the imperial government, but who were nonetheless valuable as a source of tax revenue, there is no record of any comprehensive legislation undertaken against homosexuals in the Roman Empire until the reign of Constans I and Constantius. The first law that defined homosexuals as criminals is dated December 16, 342, and is found in the Codex Theodosianus. The Code of Theodosius, a compilation of laws published in 438, was commissioned by Theodosius II to organize the laws of the Roman Empire under the Christian emperors since 312. The law states: With the charming exception of Erotes by Pseudo-Lucian, an extended dialogue dating possibly from as late as the fourth century, in which the advantages and disadvantages of homosexuality and heterosexuality are compared and debated. A full translation is included in Hubbard, Homosexuality, 505-531. 51
“Emperors Constantius and Constans Augustuses to the People: When a man ‘marries’ in the manner of a woman, a ‘woman’ about to renounce men, what does he wish, when sex has lost its significance; when the crime is one which it is not profitable to know; when Venus is changed into another form; when love is sought and not found? We order the statutes to arise, the laws to be armed with an avenging sword, that those infamous persons who are now, or hereafter may be, guilty may be subjected to exquisite punishment.”52 The word “marries” (nubit in feminam) probably meant something like “mates like a woman,” and the term “exquisite punishment” (poenae exquisitae) means a special or carefully chosen punishment.53 The law itself may reflect the traditional Roman abhorrence of adult males who allow themselves to be penetrated during sex, in which case it effectively forbids anal intercourse—a notoriously difficult offense to prosecute on any basis excepting denunciation, since most participants are unlikely to perform it in public. It is a point of interest that Constans, a co-author of this law, was, according to Aurelius Victor, 54 himself a homosexual in private life. The next anti-homosexual legislation appeared in 390 and was decreed by Valentinian, Arcadius and Theodosius. It is addressed to an official in Rome named Orientius: “We cannot tolerate the city of Rome, mother of all virtues, being stained any longer by the contamination of male effeminacy, nor can we allow that agrarian strength, which comes down from the founders, be softly broken by the people, Cod. Theo., 9.7.3. Cantarella brings an extensive discussion of the interpretive possibilities of the wording of this and the other anti-gay laws of the period in Bisexuality, 177-186. 54 Aur. vict., de caes. 41.24. 52
thus heaping shame on the centuries of our founders and the princes.... Your laudable experience will therefore punish among revenging flames, in the presence of the people... all those who have given themselves up to the infamy of condemning their manly body, transformed into a feminine one, to bear practices reserved for the other sex, which have nothing different from women, carried forthâ€”we are ashamed to sayâ€”from male brothels, so that all may know that the house of the manly soul must be sacrosanct to all, and he that basely abandons his own sex cannot aspire to that of another without undergoing the supreme punishment.â€?55 Here it is at least perfectly clear what kind of punishment is to be provided, even though the exact nature of the offense or offenses requiring the punishment remains opaque. Perhaps this is intentional, giving the prosecutor a wider latitude for interpreting the law. Unlike the earlier decree, this one seems less concerned with sexual practice than with making a statement of principle that traditional gender attributes are not to be mixed or tampered with. It is interesting to note that a record exists of this legislation being enforced. A Goth named Butheric, a military officer in Thessalonica, was known for certain feminine characteristics and subsequently arrested. Since he was also a favorite charioteer at the games, a mob rose and tried to rescue him. Goth soldiers then moved in and killed 3,000 people. It is hard to understand which underlying issues may have been involved, but the record does indicate that Butheric was arrested in accordance with the new laws.56
Translated from Romanorum et Mosaicarum legum Collatio, 5.3, by Cantarella, Bisexuality, 177. 56 The episode is described in detail by Cantarella, Bisexuality, 180.
Additional anti-homosexual legislation is found in the Codex Theodosianus in the form of an edict dating from the reign of Theodosius the Great: All persons who have the shameful custom of condemning a man’s body, acting the part of a woman’s, to the sufferance of an alien sex (for they appear not to be different from women), shall expiate a crime of this kind in avenging flames in the sight of the people.57 But the most uncompromising and unfortunately also the most influential legal condemnation of homosexuality in the late Roman empire is found in the Corpus iuris civilis (Body of Civil Law). It was issued from 529 to 534 by order of Justinian I, and it is known also as Codex Iustitianus. This code intended to compile all imperial constitutiones (imperial pronouncements with legal force) back to Hadrian, making use of the Codex Theodosianus and other compilations in private hands. It also included new laws issued by Justinian. The wholesale condemnation of gay sex contained in these latter provisions also served as a prototype for all subsequent legislation in the European Middle Ages. In the laws before Justinian we have considered above, there is often unclarity about the nature of the homosexual offenses involved, although it is obvious at least that the law-makers were thinking about transvestites, male prostitutes, and presumably “passive homosexuals,” (meant are males on the receiving end of anal intercourse). But the Justinian Code, eager to confer the death penalty upon one and all, innovatively creates a more specific definition of who is meant to die, namely any male adult “who exercises his shameful lust with a man.”58
Cod. Theo., 9.7.6. In Justinian’s Institutiones of 533, translated by Cantarella, Bisexuality, 181. 57 58
From now on same-sex intercourse is the defining moment, and no longer the physical positions people might assume, or the pleasures of cross-dressing or male prostitution. Further pronouncements in the same Code define homosexuality with almost Apocalyptic urgency as a sin offensive to God, as being the cause of Godâ€™s punishment of Sodom, and further as a crime against nature itself; i.e., against all that is created by God. So much is clear: Justinian has taken the theological position expounded and elaborated upon by the patristic writers for more than three centuries and transformed it into a state policy of pitiless repression, intending nothing less than an â€œethnic cleansingâ€? of sexual expression .
The purpose of this paper has been to review the historical events that led from an era of acceptance of same-sex relations in the early Roman empire to their legal condemnation during the early sixth century in the reign of Justinian. After indicating the tolerant atmosphere which gay men enjoyed at the beginning of the period, we saw how the teachings of the church, coupled with transformative tendencies in traditional non-Christian philosophy, gradually turned initial tolerance into a climate of oppression. Starting with the letters of Paul and the teachings of the ante-Nicene fathers, an attitude of hostility slowly developed, culminating in at least two actions undertaken by Constantine against homosexual pagan temple priests, both of which seem to have been overlooked by scholars and which may indeed qualify as the first attempts to suppress homosexuality in Western history. Reinforced by a deepening of â€œpaganâ€? skepticism about sexual relations in general, clearly observable from at least the time of the Emperor Julian, we next considered a series of imperial laws which, beginning with a decree of Constans I and Constantius and ending with numerous provisions of the Code of Justinian, sought effectively to wipe out homosexuals altogether. A more extensive description of this process than we have been able to provide here would have looked at the writings of the postNicene fathers, whose almost frenzied excoriation of homosexuality borders increasingly on the irrational; an analysis of the Latin and Greek vocabulary that we in modern times take to signify homosexuals; and a look at early Christian penitentials (books that indicate penances due for various sins and thereby show the comparative significance of various derelictions). More importantly, overwhelmed by the wealth of references to homosexuality during this period, we have not had opportunity to examine the teachings of the
church about virginity and chastity. Any analysis of anti-homosexual teachings must be seen against the background of the church’s negative teachings about sexual activity in general. Because the patristic writings in their sexual skepticism essentially condemn all kinds of sexual performance, it is hardly surprising that same-sex relations would not be exempted. The increased emphasis on asceticism in the fourth century, the growth of monasticism and communities of Christian virgins, and the continuing elaboration upon the benefits of abstinence, also contributed to an atmosphere of denial. Disregarding moral attitudes, however, we have observed in the succession of imperial laws that the definition of a class of persons whom we may recognize as homosexuals has gradually emerged: persons who engage in same-sex relations of any kind. No longer just pederasts, cross-dressers, “effeminates,” male prostitutes or males who are penetrated by other males, homosexuals come to be eventually seen as those having sex with each other any way they choose, and these are the ones who require punishment or elimination by the state. This continuing process of attempting to describe or define homosexuality, which continues in our own day as well, 59 justifies a historical study of the kind we have undertaken. Moralists writing to improve social behavior who are not gay themselves will tend to judge gays either from hearsay or from whichever behaviors are publicly visible, then as now. Gay practitioners on the other hand will derive their under-standing of themselves and their relation to society from the private desires that motivate and enable their behavior to begin with. Consider for example current perplexities about whether being gay is a matter of choice. In 2004, President George W. Bush was busily advocating to the media a Constitutional amendment prohibiting same-sex marriage, evidently viewed by himself as something akin to a kamikaze attack on American family values. However, at a White House press conference, he “was asked by Bob Schieffer whether he thought ‘homosexuality is a choice.’ Bush said: ‘You know, Bob, I don't know. I just don't know.’” Washington Post, "The Mary Cheney Flap: a Gaffe vs. Ignorance," by Richard Cohen, Columnist, http://www.washingtonpost.com/wpdyn/articles/A43715-2004Oct18.html, accessed March 1, 2007. 59
It should be noted that the one leading area of concern equally affecting a great many writers before Justinian, both Christian and non-Christian, is the assumed effeminacy of homosexuals. The most obvious form of behavior that is observable publicly, it is also the one first addressed by the imperial laws. “Effeminates,” in the sense of men who behave like women, are the subjects of constant rebuke by the church fathers. Of course the rigid belief in the God-ordained separation of the sexes is to be maintained in religious life as well as in the secular world: “It is not allowed for a woman to speak in church, but also neither to teach, nor to baptize, nor to offer [sacrifice at the altar], nor to claim a share of any male function....”60 Pederasty, often referred to as the defiling or corrupting of boys, is mentioned less and less after 300 CE, while the non-procreative aspect of homosexuality—an aspect which may have well been traducted from Jewish attitudes toward procreation in the Old Testament—together with the assertion that homosexuality violates God-given gender boundaries, become increasingly important arguments. Although some scholars insist on viewing “passive homosexuals” or “effeminates” as definable in terms of much older popular prejudices against male penetration,61 we have not yet found a clear reference to penetration in any source after 200 CE.62 Feminine behavior, on the other hand, is the one aspect of male homosexuality that impresses observers consistently during Antiquity. Therefore the overriding interest of state and church became, as it were, to keep men from behaving like women in a world where gender Translated from Tertullian, On the Veiling of Virgins, by Dunn, Tertullian, 91. 61 Williams provides an extensive discussion about sexual roles and identities in relation to anal sex in Roman Homosexuality, 172-178, and 209215. 62 Excepting Erotes of Pseudo-Lucian, mentioned in Note 51 above, which indeed covers all the bases. Even heterosexual males are not free from anal temptation, as is the case with Callicratidas, who enthuses wildly over the bottom of Aphrodite portrayed in a statue (Hubbard, Homosexuality, 511). 60
requisites were represented as having emanated from God. 63 But underlying this is an attitude which seems to go to the heart of Western culture, and which from its outset viewed women in their perceived passivity as failed men. For this reason ancient philosophers spoke of a lack of vital energy or “heat” in the womb resulting in the birth of women instead of men. They advised males to reduce contact with women so as to protect their own gender assets. Just hanging out with women would have the effect of diminishing one’s own masculinity. As Peter Brown summarizes, “No normal man might actually become a woman; but each man trembled forever on the brink of becoming ‘womanish.’ It was never enough to be male: a man had to strive to remain ‘virile.’”64 Thus “normal” men in reality subjected women to the same passivity they believed to perceive in them, and the resulting confusion could only generate a flawed sense of masculine selfidentity. The fundamental misapprehension of women may indeed be a critical determinant of homophobia, in the late Roman empire as well as now: a debilitating fear in the “normal” male to accede to a falsely derived construction of the female.
Maud Gleason universalizes the principle of gender separation to all cultures: “In almost every culture known to anthropologists, the proper separation of male and female is felt to be essential to the preservation of the cosmic order,” Making Men, 61. Such notions may have been a useful justification for the oppression of gay people in the Christian empire, but it not a prominent theme in ancient Greek and Roman philosophies, and, as we have suggested above, barely a consideration at all in the public and cultural life of first-century Rome. 64 Brown, Body and Society, 11. 63
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