Roman Law
There had been earlier Roman legislation against homosexual
acts. There was a shadowy Lex Scantinia supposedly passed
in the early Republic against homosexual activity, but it seems
to have had little effect. Certainly in the late Republic/early
Empire the law was not applied, and social attitudes did not condemn
homosexual sex (although "passive" sexual roles for
men were despised). A tax was indeed levied on homosexual prostitutes.
In the later Imperial period legal commentators enlarged the Lex
Julia de adulteris (originally of c.17BCE) to include first
offenses against boys and then, possibly, all male homosexual
practices.
In the Institutes of the Corpus Juris Civilis [which went into effect Dec 30, 533] summed up the legal opinons:
Institutes IV. xviii .4: In criminal cases public prosecutions
take place under various statutes, including the Lex Julia de
adulteris, "…which punishes with death (gladio), not
only those who violate the marriages of others, but also those
who dare to commit acts of vile lust with [other] men (qui cim
masculis nefandum libidinem exercere audent)."
Note that this not only extends the law to homosexual acts,
but also extends the death penalty to adultery, which was not
part of the original law. [Bailey 64-70].
Christian Emperors
The Christian emperors continued to collect taxes on male prostitutes
until the time of Anastasius (ruled in Constantinople - 491-581).
But there are occasional laws which seem to have been directed
against homosexuality.
Against Same-Sex Marriage?
On Dec 16 342 Constantius and Constans passed a law (actually
issued a a legal decision) which was included in the later Theodosian
Code:
Cod.Theod. IX. Viii. 3: (=Cod. Justin IX.ix.31): When a
man marries in the manner of a woman, a woman about to renounce
men {quum vir nubit in feminam viris porrecturam), what
does he wish, when sex has lost all its significance; when the
crime is one which it is not profitable to know; when Venus is
changed to 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 who hereafter
may be, guilty may be subjected to exquisite punishment. [Bailey
70]
The meaning of this law has been hotly debated. Some have argued
it indicates a previous legal status of same-sex marriage [John
Boswell], others that "marries" simply means "give
himself sexually"; and others that it relates to a a particular
legal case.
The Law of 390
A clearer law was issued by Valentinian II, Theodoisus and
Arcadius on Aug 6, 390. It also survives in the Theodosian Code:
Cod.Theod. IX. Vii. 6: All persons who have the shameful
custom of condemning a man's body, acting the part of a woman's
to the sufferance of 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.
The wording is obscure - is it directed at passive partners
or "sodomists" for instance? - but the attitude is clear.
Again, it is less clear that this was ever applied, and, as noted,
the tax on boy prostitutes continued to be collected. Still, this
is beginning of the penalty or burning which was supposed to have
been applied in areas in which Roman law ran. [Bailey 70-73]
Justinian [r. 527-565]
With Justinian, the situation seems to change. First we have
historical accounts in Procopius and Malalas indicating that there
was active persecution of some homosexuals. Secondly, Justinian's
legislative activity was persistent. First there was the strictness
of the Corpus Juris Civilis of 533. More significantly,
Justinian issued two "Novels" directed against homosexual
activity. Because of Justinian's fame as a legislator these have
been widely read and were influential. But they are also qualitatively
different from the earlier laws: they are as much about mix moralism
with sterness and as extreme punishment. Although legal provisions
against homosexual activity [Bailey 80, thinks primarily concerned
with the corruption of boys and male prostitution] were maintained
in later Byzantine legal codes, there is much less evidence that
these laws were applied in practice, especially in the later years
of the Byzantine empire.. [See the bibliography attached, especially
Laiou..]
NOVEL 77 [358 CE] [relevant extracts]
…since certain men, seized by diabolical incitement practice
among themselves the most disgraceful lusts, and act contrary
to nature: we enjoin them to take to heart the fear of God and
the judgment to come, and to abstain from suchlike diabolical
and unlawful lusts, so that they may not be visited by the just
wrath of God on account of these impious acts, with the result
that cities perish with all their inhabitants. For we are taught
by the Holy Scriptures that because of like impious conduct cities
have indeed perish, together with all the men in them.
#1: [there follows a section condemning various blasphemies
-- swearing by God's Hairs', or "by God's head"]…For
because of such crimes [not clear if this means just blasphemies
or homosexual practices as well] there are famines, earthquakes,
and pestilences; wherefore we admonish men to abstain from the
aforesaid unlawful acts, that they may not loose their souls.
But if, after this our admonition any are found persisting in
such offenses, first they render themselves unworthy of the mercy
of God, and then they are subjugated to the punishment enjoined
by law.
#2: For we order that most illustrious prefect of the Capital
to arrest those who persist in the aforesaid lawless and impious
acts [this must refer to homosexual and blasphemous acts] after they have been warned by us, and to inflict on them the
extreme punishments, so that the city and the state may not come
to harm by reason of such wicked deed. And if, after this our
warning, and be found who have concealed their crime, they likewise
shall be condemned by the Lord God. And if the most illustrious
prefect find any who have committed any such offense. And shall
omit to punish them according to out laws, first he will be liable
to the judgment of God, and he will also incur our indignation.
[trans. in Derrick Sherwin Bailey, Homosexuality and the Western
Christian Tradition, (London: Longmans, Green, 1955), 73-74]
NOVEL 141 [344 CE] [complete]
Preamble: Though we stand always in need of the kindness
and goodness of God, yet is this specially the case at this time,
when in various ways we have provoked him to anger on account
of the multitude of our sins. And although he has warned us, and
has shown us clearly what we deserve because of our offenses,
yet he has acted mercifully towards us, and, awaiting our penitence
has reserved his wrath for other times -- for he "has no
pleasure in the death of wicked; but that the wicked turn from
his way an live". Wherefore it is not right that we should
all despise God's abundant goodness, forbearance, and long-suffering
kindness and, hardening our hearts and turning away from penitence,
should heap upon ourselves wrath in the day of wrath. Rather,
we ought to abstain from all base concerns and acts -- and especially
does this apply to such as have gone to decay through that abominable
and impious conduct deservedly hated by God. We speak of the defilement
of males (de stupro masculorum) which some men sacrilegiously
and impiously dare to attempt, perpetrating vile acts with other
men.
#1: For, instructed by the Holy Scriptures, we know that
God brought a just judgment upon those who lived in Sodom, on
account of this very madness of intercourse, so that to this very
day that lands burns with inextinguishable fire. By this God teaches
us, in order that by means of legislation we may avert such an
untoward fate. Again, we know what the blessed Apostle says about
such things, and what laws our state enacts. Wherefore it behoves
all who desire to fear God to abstain from conduct so base and
criminal that we do not find it committed even by brute beasts.
Let those who have not taken part in such doings continue to refrain
in the future. But as for those who have been consumed by this
kind of disease, let them not only cease to sin in the future,
but let them alos duly do penance, and fall down before God and
renounce their plague [in confession] to the blessed Patriarch;
let them understand the reason for this charge, and, as it is
written, bring forth the fruits of repentance. So may God the
merciful, in abundance of pity, deem us worthy of his blessing,
that we may all give thanks to him for the salvation of the penitents,
who we have now bidden [to submit themselves] in order that the
magistrates too may follow up our action, [thus] reconciling to
themselves God who is justly angry with us. And we also, wisely
and prudently having in reverence the sacred season, entreat God
the merciful that those who have been contaminated by the filth
of this impious conduct may strive for penitence. Next, we proclaim
to all who are conscious that they have committed any such sin,
that unless they desist and, renouncing it [in confession] before
the blessed Patriarch, take care for their salvation, placating
God during the holy season for such impious acts, they will bring
upon themselves severer penalties, even though on other counts
they are held guilty of no fault. For there will be no relaxation
of enquiry and correction so far as this matter is concerned,
nor will they be dealt with carelessly who do not submit themselves
during the time of the holy season, or who persist in such impious
conduct. Lest if we are negligent we arouse God's anger against
us. If, with eyes as it were blinded, we overlook such impious
and forbidden conduct, we may provoke the good God to anger and
bring ruin upon all - a fate which would be deserved.
[trans. in Derrick Sherwin Bailey, Homosexuality and the Western
Christian Tradition, (London: Longmans, Green, 1955), 74-75]
It may be noted that, although Justinian was clearly concerned
with homosexuality, these Novels do not, as Bailey points
out create any new crime or impose any new penalties {for the
crimes and punishments were already in the Corpus Juris Civilis . In fact the are more exhortations than laws, and refer to local
circumstances and seasons.
Bailey notes that the so-called "crusade" of the
Christian emperors against homosexuals was nothing of the sort.
Late Roman pagan lawyers already applied the Lex Julia to homosexual acts; the number of decrees issued by the Christian
emperors amounts to four in a two-hundred year period,
and of these, the two by Justinian are as much concerned with
penance as penalty [Bailey 79-81]. The implications of this point
of view in understanding homosexuality in Byzantine society have
not really been explored.
Bibliography
Bailey, Derrick S., Homosexuality and the Western
Christian Tradition, (London: Longmans, Green, 1955;repr.
Hamden, Ct.: Archon/Shoestring Press, 1975)
Beck, Hans-Georg, Byzantinisches Erotikon: Orthodoxie-Literatur-
Gesellschaft, (Munich: 1983)
Boswell, John, Christianity, Social Tolerance
and Homosexuality, (Chicago: Univ. of Chicago Press, 1980)
, esp. 137-66
Boswell, John, Same-Sex Unions in Pre-Modern Europe,
(New York: Villard, 1994)
Brooten, Bernardette J, Love Between Women: Early
Christian Respones to Female Homoeroticism, (Chicago: University
of Chicago Press, 1996)
Bullough, Vern L., Sexual Variance in Society
and History, (Chicago: Univ. of Chicago Press, 1976)
see Chapter 12: Byzantium and Eastern Orthodox Christianity.
Dalla, Danilo. "Ubi Venus mutatur":
omosessualità e diritto nel mondo romano. (Milan. 1987)
Dauphin Claudine, Brothels, Baths and Babes Prostitution in the Byzantine Holy Land, Classics Ireland 3, 1996 [At UCD]
Galatariotou, Catia, "Holy Women and Witches:
Aspects of Byzantine Conceptions of Gender", Byzantine
and Modern Greek Studies 9 (1984/85), 55-94
Galatariotou, Catia, "Byzantine Ktetorika Typika:
A Comparative Study", Revue des études byzantins 45 (1987), 77- 138
Galatariotou, Catia, "Eros and Thanatos ", Byzantine and Modern Greek Studies 13 (1989), 95-137
esp. pp. 105, 117-124
Jenkins, Romilly J.H., "Constantine VII's Portrait
of Michael III", in Bulletin de las Classes Des Lettres
et des Sciences morales et politiques, Académie Royale
de Belgique, 5e série, XXXIV, (1948), 71-77
Koukales, P, The Private Life of the Byzantines
Byzantinon bios kai politismos 8 vols., (Athens: Institut Francais,
1947-57)(in modern Greek) Vol IV, 505-39 on homosexuality: NB
sometimes referred to as Vie et Civilisation byzantines - check for French translation.
Laiou, Angeliki, Marriage, Amour et parenté
à Byzance aux XIe-XIIIe siècles, (Paris: De
Boccard, 1992)
pp. 74 ff. Contains one of the most important modern analyses
of Byzantine homosexuality.
Levin, Eve, Sex and Society in the World of the
Orthodox Slaves, 900-1700, (Ithaca and London: Cornell University
Press, 1989)
Mullet, Margaret, "Byzantium: A Friendly Society?", Past and Present 118 (1988), pp. 3-23
p. 11 on homosexuality.
Pitsakes, Konstantinos, "He thes ton homophylophilon
ste Byzantine Koinia" in Chrysa A. Maltezou, ed., Praktika
Hemeridas: Hoi Peridoriako sto Byzantio, (Athens: 1993), 171-269
A major article in modern Greek.
Ringrose, Kathryn, "Living in the Shadows: Eunuchs
and Gender in Byzantium", in Gilbert Herdt, ed., Third
Sex, Third Gender, (New York: Zone, 1994), 85-110
Troianos, Spyros, "Kirchliche und weltliches
Rechtsquellen zur Homosexualität in Byzanz", Jahrbuch
des Öst. Byzantinistik 39 (1989), 29-48
"Ecclesiastical and secular legal sources on Homosexuality
in Byzantium". A vital summary.
Zymaris, Nicholas, "The Rite of `Spiritual Brotherhood',
Homosexuality, and the Orthodox Church", Axios (May
1984), 6-8
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