Early Liberalism and Gay Rights
Long before the modern movement for equality of rights for LGBT individuals there were classical liberals—or in modern parlance, libertarians—who were already taking positions in favor of equal rights.
Marquis de Condorcet
Consider the Marquis de Condorcet, Marie-Jean-Antoine-Nicolas de Caritam (1743–1794), a classical liberal and champion of freedom and individual rights. The Stanford Encyclopedia of Philosophy says of him:
“Even before publicly addressing the woman question, he argued vociferously for the humanity and rights of enslaved Africans, and proposed the abolition of slavery in France’s overseas colonies. His 1781 work Réflexions sur l’esclavage des nègres[Reflections on Black Slavery] helped incite the abolitionist movement in France, which came together in early 1788 in the newly created Société des Amis des Noirs [Society of the Friends of Blacks], of which Condorcet became president in January 1789: a counter-lobby to the influential pro-planter Club Massiac. Condorcet published actively throughout the 1780s and later drafted numerous legislative bills for the National Assembly on the question of colonial reform and the slave trade. In addition, he advocated for freedom of commerce, the rights of religious minorities, and criminal law reform. He considered neither sodomy nor suicide as crimes because they “do not violate the rights of any other man,” unlike rape, which “violates the property which everyone has in her person” (“Notes on Voltaire [1789],” in Condorcet O’Connor and Arago 1968 [orig. 1847–9], vol. IV, 561, 563, 577, cited in McLean and Hewitt 1994, 56). He believed in the right of a woman to plan her pregnancies. His views on female education were especially progressive for his time, as he proposed that girls be educated alongside boys within universal, co-educational institutions; and he would have provided for women’s admission to all professions for which they showed talent.”
Condorcet [1743–1794] was a true liberal, an advocate of depoliticized markets and social freedom. He was friends with Turgot and shared his ideas on free trade of goods and services. His views, he said, came from “reflecting on the moral ideas of justice and virtue. I felt that I saw that the interest we have in being just and virtuous arose from the pain one sensitive being must needs feel on becoming aware of the pain suffered by another.” Condorcet said “As long as there is no violence” so-called sodomy “cannot be covered by criminal laws’ It does not violate the rights of any other man.”
Adam Smith
Adam Smith [1723–1790] was one of the great creators of the classical liberal tradition, along with his close friend and fellow bachelor, David Hume. Smith was “outed,” in a sense, by his friend Alexander Dalrymple, who wrote in 1800 of his disagreements with Smith. Dalrymple was convinced that Smith had been infected with the ideas of the French philosophers.
In a memoir “Thoughts of an Old Man,” Dalrymple both praised and chastised Smith. He wrote:
“Adam Smith, whom I knew well, was a man of much investigation, knowledge and sagacity, with a heart overflowing with a benevolence and sociability; but he was strong tinctured with French philosophy and system! To mention two circumstance, in which I cannot be mistaken, because, spoken to myself, and although contradictions to the sentiments I expressed, not spoken in public, where men often sport opinions for argument, but in the familiarity of individual conversation, where the unreserved sentiments are spoken. These were ‘that the Christian religion debased the human mind;’ and that, ‘sodomy was a thing in itself indifferent.’”
The Anti-Jacobin Review and Magazine of 1801 — which is sort of the publication of the conspiracy theorists of the day — was quite apoplectic. They noted they previously “had occasion to comment on a conversation between that ingenious writer and Dr. Adam Smith, in which the latter pronounced a panegyric on the principles of Voltaire and Rousseau. The suspicions which we were then led to entertain of this celebrated political economist are, we are concerned to say, fully confirmed by a very extraordinary passage in the book before us.” (Referring to Dalrymple’s memoir.)
At this point they proclaimed Smith anathema: “Alas! what a contemptible being is a philosopher who is no Christian, compared with a Christian who is no philosopher! But to speak correctly, a man, who is the enemy to Christianity, cannot be a philosopher.”
Jeremy Bentham
But, of the early libertarians it was Jeremy Bentham (1748–1832) who wrote most extensively on the issue of homosexuality and the law. In Jeremy Bentham: Critical Assessments, edited by Bhikhu Parekh, Louis Crompton writes, “In his essay Paederasty” Bentham answers Montesquieu, Voltaire, and Blackstone, argues that ancient Greece and Rome practiced homosexuality widely, and attacks sexual asceticism in morals. He is a kind of champion on the side of the homosexual in favor of decriminalization.”
It appears Bentham was aware of the wider social views and in one version of the essay uses language that is clearly condemnatory of homosexuality in general. Crompton felt, “the use of traditional homophobic language was the price Bentham felt he had to pay for the treating the question from a reformist point of view.” In other drafts, Bentham “explicitly objects to homophobic expressions, that is to labeling homosexuality an ‘abomination’ or ‘unnatural,’ and coins new neutral language, calling it ‘the improlific appetite.’ Indeed, where the essay of 1758 might be described as reformist, the notes of 1814 and 1816 can only be called revolutionary, since in them he presents homosexual activity not simply as not meriting punishment but as behavior the encouragement of which would have positive social consequences.” (p 260)
Heinrich Hössli
Heinrich Hössli (1784–1864) is one of the forgotten liberals, a classical liberal from the early years of liberalism. He was among the very first to outline a defense of the rights of homosexuals. The Swiss born author was one of 14 children of Hans Hössli and his wife Margreth Vogel. Like his father Hössli’s prime occupation was hatter. Married to Elisabeth Grebel he fathered two sons who later emigrated to the United States.
What made Hössli famous was his two-volume work, Eros: The Greek Love of Men. It’s relationship to History, Education, Literature, and Legislation of All Ages. Married to Elisabeth Grebel he fathered two sons who later emigrated to the United States. The one son vanished from history while the other, Johann Ulrich, who had written his father of his own homosexuality, was killed in a shipwreck on his way back to Switzerland. According to Robert Tobin, Ulrich “sponsored a number of young men from Switzerland who wanted to immigrate to the United States” and “one of the fathers of these young men accused him of inappropriate behavior.” Historian Clayton Whisnant wrote Hössli was “inspired by French Enlightenment thinkers such as Charles de Montesquieu and the liberal Swiss writer Heinrich Zschokke. Hössli fashioned a fascinating argument against the persecution of homosexuality out of anti-witch hunt rhetoric, pleas for the legal emancipation of Jews and admiration for Greek society then fashionable among German literati.”
Hössli began thinking about the homosexual after he read of the execution of Franz Desquouttes, who had killed a male lover. Hubert Kennedy wrote:
…It was then that he conceived what he afterwards referred to as his “idea,” namely, that the understanding of male love of the archaic Greeks had been replaced through the centuries by such strong denial, repression, and condemnation, that even those men who by nature felt such a passion were unable to accept it as genuine and, as a consequence, saw themselves as evil and acted as such.
This revelation, that Greek love was an eternal part of human nature, and the dreadful consequences of the suppression of this knowledge, gave Hössli his lifelong mission. He studied the matter as best he could, but believed his schooling had not prepared him to present it adequately.
Hössli tried to persuade the Zschokke to publish Hössli’s views on the matter, and according to Kennedy, “Zschokke did publish some of Hössli’s views in 1821, but Hössli was disappointed with the result.” Disappointed is something of an understatement.
Tobin says Hössli approached Zschokke because he “assumed that a man of such spotless credentials as Zschokke would paint the plight of men who loved other men in the most sympathetic light. He commissioned Zschokke to write a story based on what he perceived to be the tragedy that resulted in Desgouttes’s murder of Hemmeler.” The problem was Zschokke was not ready for the boundaries Hössli was challenging.
“For Hössli, this failure was all the more striking because sexual freedom should in fact emerge from that loose collection of Enlightenment ideas that was coming to be known as liberalism. As Hössli framed the debate, sexual emancipation should result from such causes as (1) the removal of the church from politics, (2) the emancipation of the Jews, and (3) the extension of rights to women.”
Hössli then spent years working on his own book, publishing volume one in 1836 and the second volume two years later. According to Kennedy:
Volume one of Eros established two themes that Hössli continued to elaborate: (1) that society treats those subject to Greek love in the way that previous centuries treated witches and heretics (Hössli assumed — perhaps rhetorically — that society had rejected belief in witches), and (2) “the unreliability of exterior characters in the sexual love of the body and the soul” (here anticipating — and rejecting — the later theory of Karl Heinrich Ulrichs, that homosexuals will show characteristics of the opposite sex).
Hössli’s often convoluted rhetoric is full of righteous indignation that sometimes, however, hits the nail firmly on the head. For example, he writes in volume 1 of Eros: “In the time of madness someone who does not go along with the madness is said to have no conscience, and this precisely always all the more when he is conscientious.” He saw this madness precisely in the treatment of homosexuals.
In volume 2 of Eros Hössli reformulates and elaborates his theme in two parts: an anthology of male love and a defence of Greek love against what modern critics have made of it.
Robert Tobin says the two volumes were “deeply embedded in early nineteenth-century liberal thought. But although this post-Enlightenment worldview had openings to the acceptance of same-sex desire, Hössli found that he constantly pushed up against the limits of his era’s liberalism and had to reach for more radical formulations to articulate his sexual politics.”
Hössli was among the first to argue there is a specific nature that inclines some men to love other men. Tobin wrote, “Hössli emphasizes that this love is in no way to be derided as crude or animalistic. In addition, this sexual nature is immutable.” He said, those who love their “own sex cannot be lovers of the other sex.” “By the end of the second volume, Hössli concludes that questions about a person’s sexual nature are ‘questions about the individuality, the foundation essence, the original depths of human disposition, about his innermost, unchangeable nature and beings.”
Hössli was “well-read in the emerging liberal tradition” but, according to Tobin, “willing to critique liberalism’s inability to think through sexual rights.” I think it unfair to say liberalism was unable to think through such rights. While liberalism has always been a creature of its time, it has also been in the forefront of the movement toward greater liberty and individual rights.
Liberalism was never a fait accompli; a collection of ideas set in stone — that is a conservative concept not a liberal one. F.A. Hayek wrote, “There has never been a time when liberal ideals were fully realized and when liberalism did not look forward to further improvement of institutions. Liberalism is not averse to evolution and change; and where spontaneous change has been smothered by government control, it wants a great deal of change of policy. So far as much of current governmental action is concerned, there is in the present world very little reason for the liberal to wish to preserve things as they are. It would seem to the liberal, indeed, that what is most urgently needed in most parts of the world is a thorough sweeping away of the obstacles to free growth.” Indeed, Hayek himself, in the 50s lamented the laws that remained on the books against homosexuals, sayingit was “not a proper subject for coercive action for a state whose object is to minimize coercion.”
Hössli was happy to push liberalism further down the road of Enlightenment. He was one of the first to look for similarities between other forms of persecution and those of unpopular minorities of the day. Given that liberalism demanded separation of church and state, or superstition and state, Hössli first turned his attention to the plight of accused witches. He discussed how religious superstition lead to the execution of women guilty of no real crime. He then moved on to another target of religious persecution:
“Framing his discussion of same-sex erotic love in terms of superstitious persecutions of witches allows Hössli to also make an implicit comparison between Jews and men who love men — a comparison on unjust application of Christian morality to state law.
…While his allusions to the persecutions of Jews are more cursory than his intensive study of witch hunts, his reports on their misfortunes are nonetheless focused and full of detail. He describes their medieval scapegoating as plague-bearers and moving outlines a series of horrendous atrocities.
…Medieval anti-Judaism filled him with a sense of outrage at religiously inspired bias in law and culture.”
Hössli also adopted a view that only became widespread long after his death — the persecution of a homosexuals itself distorts homosexuality and how it is exhibited. It is now common knowledge that sodomy laws made committed relationships difficult and anonymous sexual encounters legally wise. Hössli would “insist that deleterious social conditions can alter the appearance of male-male love by perverting it through oppression.” What had flourished in the time of Plato, he said, in his own age: “creeps about as vice under the burdens of general condemnation, destroyed and destroying, without blessing, power or deed, full of guilt and torture, beyond all concept and dignity of humanity, mostly in repulsive, not Greek, figures.” As Tobin summarizes, “Hössli’s argument emerges: sexuality, while not irradicable, can assume new and terrible forms as a consequence of societal oppression and persecution.”
Heinrich Hössli was not just another classical liberal; he was a liberal who pushed liberalism even further. He was an innovator and a leader in liberal thought. As Prof. Tobin notes: “In all cases, though, his application of these liberal principles to men who sexually loved other men was a radical innovation.”
Karl-Maria Kertbeny
The first active campaign for extending equal rights before the law to homosexuals took place in the mid- to late-1800s in Germany. At the center of the campaign was a small classical liberal publishing house in Leipzig, Serbe Verlag, which published the works of both Karl Ulrichs (1825–1895) and Karl-Maria Kertbeny (1824–1882).
As Germany moved from a loose confederation of states into a nation-state, a debate about laws banning same-sex relationships took place. Some states had followed the more liberal Napoleonic code, but other state laws were quite severe. Ulrichs and Kertbeny were concerned that the more repressive Prussian code would be imposed on all states and began agitating against the move.
Kertbeny’s first booklet on gay rights was published in 1869 and entitled, Paragraph 143 of the Prussian Penal Code. This law was the anti-homosexual law, which ultimately morphed in the infamous Paragraph 175, the law under which Nazis rounded-up gay men. The first pamphlet was followed up with a second: The General Harmfulness of Paragraph 143 of the Prussian Penal Code. Between Kertbeny and Ulrichs a whole new field of study opened up. Carolyn Dean, in Sexuality and Modern Western Culture, wrote: “The study of homosexuality began in Germany, where it was intertwined with the struggle to eliminate state proscriptions against homosexual practices.” Florence Tamagne, in A History of Homosexuality in Europe, wrote, “the years 1869–1919 can be regarded as a major watershed in the history of homosexuality and as the foundation upon which the homosexual ‘liberation’ of the 1920s was built.” In spite of noting Kertbeny’s role in coining the terms “homosexual” and heterosexual” and admitting that the period in which he and Ulrichs were active was the foundation for the entire movement of liberation she chronicles in her history, Tamagne only mentions Kertbeny briefly twice and never explains his role beyond inventing two words.
While it was widely assumed Kertbeny was the author of the pamphlets it was only in the late 1980s this was confirmed, “Thanks to the extensive research of Manfred Herzer,” according to Hungarian sociologist Judit Takacs. Herzer’s research “has now clearly proven that the author of these pamphlets and the coiner of the word was Kertbeny.”
In 1868 Kertbeny first used “homosexual” in a letter he wrote and then used the word again in the 1869 pamphlet, the first published use of the word. His word was an important improvement on the ideas of Ulrichs, who tried to coin a new term as well, “Urnings” or “Uranians,” neither of which, thankfully, caught on. Dean notes Ulrichs view was “homosexual men had a ‘women’s soul enclosed in a male body.” Hubert Kennedy wrote, “Ulrichs posited the existence of a “third sex” whose nature was inborn. The essential point in his theory of homosexuality is the doctrine that the male homosexual has a female psyche, which he summed up in the Latin phrases: anima muliebrir virili corpore inclusa(a female psych confined in a male body).” While this may describe some transgender individuals, this is not true of the typical homosexual man. Urnings terminology was misinforming the public. Kertbeny felt the common phrases of the day were either misleading or unfairly pejorative and wanted more neutral terms.
Prof. Robert Tobin says Kertbeny’s role in founding gay rights is overlooked and scholars rarely mention him beyond noting his coining of these terms. The reason, says Tobin, is Kertbeny’s “publications are difficult to find, not often collected by libraries or reprinted, and even more rarely translated into English.” This is “unfortunate” because “Kertbeny’s writings reveal important aspects on the emergence of modern conceptions of modern sexuality.”
Takacs, wrote that Kertbeny, when living in Berlin in 1848, becoming friends with Alexander Humboldt, the younger brother of the libertarian theorist Wilhelm von Humboldt. Alexander later became friends with Thomas Jefferson, another prominent liberal. Alexander Humboldt, it is believed, was gay himself, though this has yet to be definitively proven. Kertbeny, we also know, met with libertarian radical Max Stirner, whose ideas inspired the founding of the first gay publication, Der Eigene.
Kertbeny’s arguments on homosexuality were typically classical liberal. He argued governmental functions do not include policing of private affairs, unless the rights of others are infringed. Tobin says Kertbeny fought for gay rights using classical liberal ideas and was himself a firm liberal in the libertarian tradition. “As a liberal, Kertbeny argues for a strictly secular state” and denounced:
“…sodomy laws as carry-overs from the days when canon law concerned itself with ‘original sin, the devil, and witches.’ Instead, Kertbeny hopes the new German nation will be a “modern constitutional state” [Rechtsstaat], ‘the strict opposite of the theocratic-hierarchical autocratic state [Pflichstaat] of feudalism.’ A classical liberal, Kertbeny argues that the constitutional state’s only duty is ‘to protect the rights of its citizens.’ According to Kertbeny, ‘the constitutional state is only concerned with questions of sexuality insofar as the rights of others are infringed upon.’ To back up his point, Kertbeny cites a series of liberal legal theorists including: Johann Jacob Cella, who had argued in 1787 that the law should only punish carnal crimes if they hurt others; Jean-Jacques-Régis de Cambacérès, who had moved forward Napoleon’s liberal legal code; and Anselm von Feuerbach, who had attempted to distinguish between things that were immoral, like witchcraft, heresy, blasphemy and sodomy, and things that were illegal, like murder or rape, when he reworked Bavaria’s penal code in 1813.”
Historian Clayton Whisnant wrote Kertbeny’s “arguments drew on an older, Enlightenment tradition.”
“He argued that modern notions of justice ‘necessarily proceeding from human justice through acknowledgment of the subjectivity of human nature’ required a radical rethinking of old laws. Modernization of social and political conditions called for a state that no longer played ‘the role of guardian, which is, anyhow, a thankless and irritating role.’ Instead, it needed to recognize the right to ‘one’s own life, with which one may do as one pleases, fully free from the start to finish as long as the rights of other individuals of society or of the state are not injured by these actions.’”
Kertbeny extolled the virtue of the “equality of legal rights of life.” Tobin writes that, “In the tradition of classical liberalism, Kertbeny generally envisions the right to sexuality negatively — that is to say, he argues the state should stay out of the bedroom and should not impinge on the sexual freedom of his new category of homosexuals. As he remarks, the liberal state does not meddle uninvited in bad marriages, unless someone is being harmed — what should it interfere in ‘the possible relationship between man and man?’”
According to Takacs, Kertbeny and Ulrichs corresponded often between 1864 and 1868. She finds Kertbeny’s coining of the word homosexual unique because it “was introduced in the course of the struggle for homosexuals’ rights in a surprisingly modern human rights argumentation.”
“Kertbeny did not seek biological arguments to use for the liberation of homosexuals, — i.e. a relatively small social group with limited power to further their own interests — instead, he made the point that the modern state should extend the principle of non intervening in the private lives of citizens to cover homosexuals, too.”
In a sketch of a letter, most likely to Ulrichs, Kertbeny wrote:
“To prove the innate nature is not at all useful, especially not quickly, what’s more it cuts both ways, let it be a very interesting riddle of nature from the anthropological point of view. The legislation does not examine whether this inclination is innate or not, it merely focuses on the personal and social dangers of it, on its relation to society. There are, for example, people who are bloodthirsty, pyromaniac, monomaniacal etc. from birth, but they are not allowed to act out their inclinations even if these are medically proven ones…, they are still isolated, and in this way their extremes are isolated from society. Thus we wouldn’t win anything by proving innateness. Rather we should convince our opponents that exactly according to their legal notions they do not have anything to do with this inclination, let it be innate or voluntary, because the states does not have a right to intervene in what is happening between two consenting people aged over 14, excluding publicity, not hurting the rights of any third party.”
Kertbeny was unique in that he “constructed a whole theoretical system around the case for homosexual emancipation,” according to Takacs. He argued from a classical liberal, or libertarian, framework about the natural rights of individuals and legitimate, versus illegitimate, uses of state power. For Kertbeny, Takacs argues, “the main issue was not whether same-sex attraction be innate or not, but that people ought to have the right to be left alone by the state in their intimate lives. As he told Ulrichs it is immaterial whether sexual orientation was “innate or voluntary” because the “state does not have the right to intervene in what is happening between consenting people.”
What he wouldn’t have appreciated was how the medical establishment appropriated the term to make homosexuality a “medical problem” as opposed to a “legal” one. Takacs writes, “many perceive the word homosexual to be a medical term, mainly because of the fact that from the late 19th century until the 1970s this expression was monopolised by the medical approach interpreting same-sex attraction to be a pathology, degeneration or illness.” It is fitting to then recognize this monopolization of homosexuality, by the medical establishment, was destroyed largely thanks to the works of another Hungarian-born libertarian, Dr. Thomas Szasz.
Certainly, well before Stonewall, Mattachine and Harvey Milk, the libertarian tradition defended the rights of homosexuals in ways rarely found at the time. Libertarians were not Johnny-come-latelies to the argument LGBT individuals must be afforded the same and equal rights of their heterosexual counterparts. Long before modern Progressive “evolved” on this issue, some great libertarians were already there.
Note: The gay publication Der Eigene (1896–1932) in Berlin means The Self-Owner and was inspired by the libertarian writings of Max Stirner and some of the history is found in this piece: Bigotry and Liberty: We’ve Been Here Before
This is a section from a project in process which outlines the libertarian history of the gay rights movement. Too often the role of classical liberals and libertarians in fighting for LGBT equality has been overlooked or is unknown. No such history has been compiled, if you would like to see this project published please consider joining our Patreon support team with either a monthly or a one-time donation.
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