- By Joshua Keating
Joshua Keating was an associate editor at Foreign Policy
Quite a bit of attention has been paid to the influence U.S. evangelical groups have had in the attempts to pass harsh anti-gay laws in African countries like Uganda … as well as the role of western aid in pressuring countries like Malawi to revoke these laws. But a new paper in the forthcoming issue of Comparative Politics makes the case that the origins of these laws go back much further.
Political scientists Victor Asal, Udi Sommer, and Paul Harwood examined a sample of a sample of countries between 1972 and 2002 in an attempt to identify common factors that led to explicit legal prohibition of homosexuality. In addition to expected factors like religion and economic development, they also found that countries that inherited their legal systems from British common law were far more likely to have laws against homosexual bevior:
Indeed, almost six out of every ten countries in which homosexual activity is illegal (the largest group in our dataset) have Common Law systems. Conversely, of the countries in which anti-sodomy laws were not on the books since at least 1970, over 80% have Civil Law as their legal system.
The original sin related to homosexual acts (to the extent that there is one) is related to the legal system put in place by the state, rather than to the behavior of individuals. The "Original Sin" linked to the criminalization of gay sexual activity is that of the export of the Common Law system that criminalized buggery in Great Britain in 1533. Common law adopted by other nations (or alternatively imposed on them) in conjunction with subsequent judicial decisions and statutes passed over the centuries, led to criminalization of homosexual acts.
British criminal law didn’t drop capital punishment for "buggery" until 1861. Homosexual acts weren’t decriminalized until 1967. By contrast, same-sex sexual relations have been legal in France, or at least not specifically prohibited, since 1791, and former French colonies are less likely to ban them today.
Religion is still the most influential factor in determining whether a country adopts anti-gay laws, the authors write, but the findings on Common Law are yet another indication of how much the nature of colonial institutions continue to shape the politics of former colonies.