Thackeray once stated that the two most engaging powers of an author are to make new things familiar, familiar things new. As America’s endless culture wars fester, Prof. Geoffrey R. Stone of the University of Chicago Law School has published a powerful history of the constitutional battles over sexual expression, reproductive freedom, and sexual preference. It is a compelling book that masterfully melds together sex, religion, and law into a topical narrative that is readily accessible to both lay readers and lawyers.
Richly researched and a decade in the making, the book argues that Christian conservatives, long accustomed to imposing their beliefs on members of the body politic who do not share them, are no longer in a position to do so. Instead, they now seek protection to act in accord with their beliefs. “This,” posits the author, “is a stunning and, indeed, historic, shift in our culture and in our law.”
The backdrop of constitutional history typically begins in 17th-century England. To provide the proper context for a discussion of sex, religion, and law, however, the author travels back much further to explore what the pre-Christian world “thought about sex.” In a sentence that would have made George Santayana proud, the author notes that “[w]e can understand the present only if we know how and why we got here and only if we understand that different cultures approach these questions quite differently.”
In Part I of the book, the author explains that pre-Christian Greeks, Romans, and Hebrews “regarded most forms of sex as natural and properly pleasurable facets of human life[,]” and none “ regarded sex as inherently immoral, sinful, or shameful.”
Beginning in the fifth century, however, Christians formed “a new understanding of sex and its relation to sin.” As explained by the author, Christian doctrine over the centuries condemned as shameful fornication, masturbation, sodomy, and non-procreative intercourse during marriage. By the time of the Protestant Reformation, reformers “conscripted the authority of the state to enforce their religious precepts about sex, even against those who did not share their faith.”
Christian conservatives typically argue that America was formed as a Christian nation. Part II of the book thoroughly debunks this myth. The Enlightenment produced “a deep skepticism about Christian doctrines, particularly in the realm of sex.” Promoting tolerance and science, the Enlightenment gave rise to a new moral philosophy, Deism, which believed in a deity based on reason, not religious dogma.
By the late 1700s, Deism had greatly influenced Founding Fathers such as John Adams, Thomas Jefferson, Benjamin Franklin, and George Washington. During the “age of reason,” they created a constitution and “nation committed to the separation of church and state.” As chronicled by the author, the Enlightenment yielded “a set of attitudes about sex in the colonies that was surprisingly tolerant of sexual freedom.”
The age of reason did not last. Titled “Moralists,” Part III of the book chronicles the emergence of “Protestant religiosity” in the early 19th century, which enlisted “the law in a campaign to impose sectarian values on society, especially in the realm of sex.”
Throughout the 1800s, evangelical movements “sought to capture the authority of the state to command observance of the Sabbath, outlaw blasphemy, and squelch sexual expression and behavior.” This portion of the book explores the most significant figure of the “Second Great Awakening,” Anthony Comstock, and his “nationwide campaign” of “pervasive censorship,” a “powerful legacy” that lasted well into the 1900s.
Parts IV through VI analyze the process through which judges in the late 1950s began interpreting the Constitution “to constrain the ability of religious conservatives to censor sexually-oriented expression, ban contraception and abortion, and persecute homosexuals.”
The most tedious portion of the book “traces the history of the laws regulating sexual expression from the 1950s to the present.” The author posits that “social changes” and “the advent of new communications technologies” served to overwhelm “the capacity of the law to constrain sexual expression,” regardless of the “Christian Right’s campaign to prevent consenting adults from accessing sexual expression.”
Although this is no great revelation, the author adroitly observes that the importance of the Christian Right’s “war on obscenity” has not been its failure. Rather, it is the prodigious spur this failure provided to energize a political movement “that would vigorously combat the legal recognition of reproductive rights, women’s rights, and gay rights.”
The penultimate part of the book deals with the Constitution, the right to privacy, contraception, abortion, and reproductive freedom. Enhanced by portraits of important historical figures such as Comstock, Phyllis Schlafly, Margaret Sanger, Pauline Poe, Estelle Griswold, and Bill Baird, the narrative expertly examines the “Supreme Court’s struggle to grapple with the issues of contraception and abortion,” which led the court to recognize a fundamental right of individuals to decide for themselves “whether to bear or beget a child.”
This portion of the book also analyzes the ways in which Roe v. Wade has changed the country. In plunging into the “right to choose/right to life” controversy, the court has “divided the nation, energized the Christian Right, reframed the contours of American politics, and profoundly influenced the Supreme Court appointment and confirmation process.”
As explained in 1985 by then-Circuit Court Judge Ruth Bader Ginsburg in the North Carolina Law Review, Roe ventured too far in the change ordered, stimulated the mobilization of the right-to-life movement, and slowed the progress that women’s rights advocates had steadily been gaining from the majoritarian institutions.
The best part of the book addresses sexual orientation. With originality and balance, the author analyzes the origins of “the gay rights movement, the fierce pushback from the Christian Right, the ravages of the AIDS epidemic, the gradual evolution of public opinion toward the toleration of same-sex love, and the role of the Supreme Court as it has cautiously recognized the fundamental constitutional rights of liberty, dignity, and equality of gays and lesbians.” It is a tour de force that highlights the first obligation of citizenship: “embrac[ing] our moral, legal, and constitutional responsibility to respect the rights of others.”