Justinian I: Novel 77 [538] and Novel 141 [544 CE]
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.
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.
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