JUNE 10, 2017
UNLIKE THE BOOKS usually prescribed for Constitutional Law classes, Geoffrey R. Stone’s Sex and the Constitution is rather titillating and humorous. From descriptions of ancient Greek dildos to a charming story of Supreme Court law clerks having to describe, out loud, the erotic films that were being screened in preparation for various obscenity cases to Justice Harlan, who was losing his eyesight, there is something for everyone — including the legal practitioner, the history buff, and the casual reader. The vivid descriptions of hard-core pornography can become tiresome, though, and even detract from the focus of the book: the application of the Constitution to “sex” laws.
Sex and the Constitution is divided into two sections. The first deals with the history of how we have celebrated, condemned, and attempted to control sex and sexual expression from the Ancient Greeks to the legacy of Anthony Comstock (more on him later). The second half focuses on the real question posed by the book: how has the Constitution, which says nothing expressly about sexual rights and freedoms, become the primary method by which reproductive and homosexual rights are established and protected in the United States? One might ask why Stone spends so much time exploring the sexual norms of ancient civilizations and early America, but it is precisely because the Constitution does not enumerate sexual rights that historical context has become increasingly relevant. In fact, multiple Supreme Court justices have turned as far back as antiquity to ground their decisions in historical and traditional cultural precedents.
We quickly learn in the first few chapters of Sex and the Constitution that the idea of the United States as a Judeo-Christian Nation founded on concepts of Christian, Greek, and Roman morality is wrong. Ancient Greeks did not see the world in a binary of gay or straight. Abortion was commonplace in antiquity as a way to preserve the legitimacy of heirs and to control population growth. Early Christians focused not on whether one engaged in gay sex versus straight sex, but rather on whether one engaged in oral or anal sex instead of procreative sex.
While the Puritans, who we often consider the founders of America, indeed had strict sexual rules, other American settlers had different views on sex, marriage, and erotica. In fact, the Puritans were a minority group and the Founding Fathers, such as Benjamin Franklin and Thomas Jefferson, often had large collections of erotic literature. Philadelphia was even known as the free sex city of America.
It is with this backdrop that Stone begins to emphasize that the Constitution was written based on core Enlightenment concepts. The drafters believed in the importance of the pursuit of happiness and in having freedom from religious morality codes. Many of these men were even Deists and not traditional Christians. They never intended for the United States to be a “Christian Nation” and went through great efforts to ensure the separation of religion from the state.
It was only after the United States had gained its independence and was facing the potential of a Civil War that the myth of America as a Christian Nation began. The man who led this charge was Anthony Comstock. He quickly learned that he could exert great power by attacking sexual freedoms, both through obscenity laws and through direct attacks on the providers of contraception. Basing his arguments on the need to protect society through morality, he was able to push forward a cultural shift in the country as a whole.
Similarly, the crusade against abortion came into being when the American Medical Association saw it as a way to gain power through promoting a need for the licensing of doctors and driving out midwives and other “non-professionals” from reproductive medicine and family practices. Religious organizations and leaders later jumped onto the anti-abortion bandwagon and co-opted the movement as a way to garner influence in politics.
Though Stone does not directly spell it out, he leads us to the obvious conclusion that throughout history, the regulation of sexual acts and expression has been about controlling others and gaining power. Examples include: Societal norms that branded women as inferior via an emphasis that penetration makes one weak and powerless; the development of anti-same-sex sex laws during the Inquisition; Henry VIII’s use of sodomy laws to embarrass and attack papists, thereby ridding himself of enemies of the crown; or, in more modern times, McCarthy and the Republican Party’s use of the “Lavender Scare” — a witch hunt against gays in the 1950s — to root out dissident individuals from the government and to further strengthen their authority after expelling alleged communists. A few years later, Nixon exploited the anti-abortion leanings of previously Democratic-voting Catholics and the developing Christian Right to create a large number of committed one-issue voters to grow the Republican Party.
So when and why did people turn to the Constitution to answer questions regarding laws governing sex? According to Stone, this is a rather recent invention dating only to the 1950s. The first big “sex” case to make it to the Supreme Court was Roth v. United States, which decided that obscenity is not protected by the First Amendment. And despite years of attempting to explain the boundaries of “obscenity,” we have not been able to get much farther than “I know it when I see it.” So why do we no longer see the rampant obscenity prosecutions that swamped the Supreme Court during the 1950s and ’60s? As Stone concisely states: “The law has simply been overwhelmed by technology and by changing social mores.” In short, the law cannot keep up with the realities of modern life.
As a millennial, I was born after many of the initial battles over freedom of speech, contraception, and abortion were already fought and won. It is hard for me to fathom a time when the United States simultaneously found it acceptable to forcibly sterilize “imbeciles” but unacceptable for married or single women to obtain contraceptives. And yet that is the United States that my parents were raised in.
So, how does a document that was drafted when there were no laws restricting contraceptives or pre-quickening abortions and which does not even mention such things come to protect me and my right to choose when and if I will have a child? As Stone explains, the due process clauses of the Fifth and Fourteenth Amendments and the unenumerated rights protected under the Ninth Amendment have provided a foundation from which the Supreme Court has been able to slowly expand reproductive rights back to what they were during the founding of the United States. First, in Griswold v. Connecticut, the Supreme Court found that married couples had the right to access birth control because marital intimacy was a right that was older than the Bill of Rights. Then under Eisenstadt v. Baird, this right was expanded from married couples to unmarried individuals because targeting only unmarried individuals under anti-contraceptive laws created an unconstitutional inequality.
A similar argument was put forth by Justice Blackmun in Roe v. Wade when he used history to argue that the Founding Fathers were not against abortion and, thus, there is a fundamental right to privacy that allows a woman to decide, at least until a certain date, whether or not she can terminate her pregnancy. (Interestingly, as Stone informs the reader, when Roe v. Wade was first issued, it was not considered radical or leftist.) And since Roe, the determination of how far this right to control one’s body goes, and how limited it can be, has swung back and forth in several often contradictory “clarifying” decisions that appear to hinge almost entirely on the political and religious leanings of the Supreme Court at the time each decision is issued.
In the last segment of Sex and the Constitution, we turn to the rights of gay individuals. Once again, we come to an area of the law where the Constitution is silent. Beginning with the 1986 decision of Bowers v. Hardwick, the Supreme Court grounded their finding that a state anti-sodomy law was not unconstitutional because of a long history of Judeo-Christian societies viewing sodomy, both heterosexual and homosexual, as immoral. (The last half of Stone’s book is particularly amusing for those of us who have tired of the glorification of Justice Scalia’s “originalism,” as Stone frequently points out the hypocrisy of the late justice’s obsession with imposing Catholic sexual morals via the Constitution despite that it has always been clear that the Constitution was originally intended to do just the opposite.)
Bowers, however, was not the law of the land for long and was overruled less than 20 years later in Lawrence v. Texas. Why the change? Stone gives us two reasons. First, changing societal opinions on gayness brought about by the forced “outing” of numerous homosexual individuals during the AIDS epidemic. Second, there was a change in the composition of the Supreme Court. The result was that Justice Kennedy wrote an opinion that sex, in general, is a “most private human conduct” and one’s freedom and liberty to engage in private sexual acts is protected under the Constitution. While the Bowers analysis focused on historical religious norms, the Lawrence analysis focused on whether anti-sodomy laws had actually been enforced through the ages and emphasized that a key concept of the Constitution is that you cannot use the law to impose religious views and beliefs on others.
In contrast, the issue of gay marriage was approached more delicately and in the same manner as contraception, with incremental steps toward a finite goal of sexual liberty. Beginning with United States v. Windsor, the Supreme Court found that because marriage is a right traditionally controlled by the states, the Defense of Marriage Act was unconstitutional. Then, just a couple of years later in Obergefell v. Hodges, the Supreme Court found that laws restricting gay marriage were unconstitutional because marriage is a fundamental right and one cannot use the law to impose religious beliefs.
Are these hard-fought precedents that preserve sexual liberty and freedom here to stay? Can they change if the Supreme Court changes? That is where Stone leaves us at the end of Sex and the Constitution. Were we to enter a more restrictive society where consumption was better controlled, would we once again live in an era where obscenity prosecutions were the norm? After all, thanks to FCC v. Pacifica Foundation, it is still constitutional for the FCC to control what can be broadcast between certain hours. Nude dancing, although considered an art form that would normally be entitled to First Amendment protection, can still be lawfully prohibited pursuant to Barnes v. Glen Theatre, Inc.
Could a Supreme Court of Trump appointees overturn Roe v. Wade? Or will science and the ability of modern medicine to push back viability farther and farther make the protections offered by Planned Parenthood v. Casey immaterial and the right to an abortion nonexistent? Will we finally have a Supreme Court decision that states that homosexuals are a “suspect” class with the same protections as people of color and women under the Equal Protection Clause? Or will the Supreme Court grant credence to obvious homosexual discrimination cloaked under the title of religious freedom laws? During this past election cycle, when many if not all of the Republican presidential candidates emphasized that the United States was a Judeo-Christian Nation, the stage was set for the Supreme Court to be a battleground for casting our country, once and for all, as either a Christian Nation or as a beacon of personal sexual freedom and liberty.
As Stone notes, the framers left us some wiggle room in the Constitution because they recognized that future generations might see then current legal norms and rules as oppressive. And while this flexibility in interpretation can lead to progress, equality, and liberty, it can also be used to discriminate and enforce outdated religious mores. Will liberty prevail over morality? Will sexual freedom continue to be a way to assert freedom from authoritarians? Stone does not give us the answers to these questions, but he does give us the tools to recognize the trends and the arguments that can be used to both grant and take away our sexual rights.