Some potted history from Justice Kennedy:
“There is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter. Beginning in colonial times there were prohibitions of sodomy derived from the English criminal laws passed in the first instance by the Reformation Parliament of 1533.
"The English prohibition was understood to include relations between men and women as well as relations between men and men. Nineteenth-century commentators similarly read American sodomy, buggery, and crime-against-nature statutes as criminalizing certain relations between men and women and between men and men.
"The absence of legal prohibitions focusing on homosexual conduct may be explained in part by noting that according to some scholars the concept of the homosexual as a distinct category of person did not emerge until the late 19th century. Thus early American sodomy laws were not directed at homosexuals as such but instead sought to prohibit nonprocreative sexual activity more generally. This does not suggest approval of homosexual conduct (but) it does tend to show that this particular form of conduct was not thought of as a separate category from like conduct between heterosexual persons.
"Instead of targeting relations between consenting adults in private, 19th-century sodomy prosecutions typically involved relations between men and minor girls or minor boys, relations between adults involving force, relations between adults implicating disparity in status, or relations between men and animals."
Lawrence v Texas 519 US 558 (2003)
Generally speaking in Anglo-American law a crime requires a bad act as well as a bad state of mind, so anti-sodomy laws focised on homosexual acts. Status crimes -- being a homosexual, if it ever was a crime -- were not maintainable, at least after the Court struck down the status crime of being a drug addict, Robinson v. California, 370 U.S. 660 (1962); see also Powell v. Texas, 392 U.S. 514, 533 (1968)) (holding that the punishment of "mere status" is unconstitutional: "Criminal penalties may be inflicted only if the accused has committed some act . . . which society has an interest in preventing.").
However, the military continues to make the status of being a declared homosexual in impediment to military service, though not a crime. Square that with Lawrence if you can.
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