Sex and the Civitas

By ANDREW KOPPELMAN

Review of Sex and the Constitution: Sex, Religion, and Law from America’s Origins to the Twenty-First Century, by Geoffrey Stone

New York: Liveright, 2017

The Supreme Court has held that the Constitution protects most pornography, abortion rights, and same-sex marriage. That would have astonished the framers, and it would have astonished almost all Americans 100 years ago. How did it happen?

Geoffrey Stone’s Sex and the Constitution is, for the most part, a breezy and fast read. It is packed with entertaining stories and revealing details. It chronicles a major shift in the tectonic plates of constitutional law. It is also important for a second reason: it is a remarkably clear articulation of a very common, crude view of the appropriate relation between politics and religion.

The book begins with a brief survey of the emergence of sexual repression and guilt in early Christianity, and the Enlightenment attempt to revive a secular appreciation of sex as one of life’s innocent pleasures. We then turn to America, where Stone shows that by the time of the Revolution, the repressiveness of the Puritans had been eclipsed by the framers’ determination to separate church and state. Then the Second Great Awakening, a reemergence of religious zeal that lasted from the 1790s to the 1840s, brought religion back into politics, producing a stultifying conformity that lasted until the sexual revolution of the 1960s. The last part recounts the emergence of the popular movements that resisted these laws, and their paths to victory in the Supreme Court.

As the subtitle reveals, the book is not only about sex and the Constitution. It is also about the political role of religion. Stone thinks that the controversies over legal regulation of sexuality were, at their core, religious:

Battles over obscenity, contraception, abortion, sodomy, and same-sex marriage sharply divided Americans along religious lines. Those holding certain religious beliefs about the sinfulness of such behavior . . . vigorously insisted that such conduct must be forbidden as “immoral,” whereas those holding a different set of beliefs . . . insisted with equal vigor that government cannot constitutionally restrict . . . freedom merely because some -- or even most -- people believe their conduct to be “sinful.” (532)

The struggle is one between good secularism and bad religion. Lately the good guys have been winning. The struggle is not only about sexual freedom. It is also about containing the dangerous power of religion.

Stone is a professor of law (and former Dean) at the University of Chicago, and the book reads like an indictment of the dangerous and tyrannical impulses of religious dogma. Yet the religious are not the bad guys in the story of modern sexual liberation. Here are some bits of evidence that the story is more complicated than the one Stone tells.

For “the pre-Christian world,” a term Stone uses to refer to the elites of Greece, Rome, and the Jews, sex was regarded as “a natural and positive part of human experience.” (4) That sounds nice. It’s too nice. It’s true that the Romans felt no guilt about sex, but they felt no guilt about a lot of things. If you were a rich Roman, one of the pleasures of life was the convenience of having slaves to rape.

Stone declares that “the early Christian perspective . . . came to view sex as a sinful temptation that must be suppressed.” (12) That’s true of some early Christian views. But Christianity also broadcast to the Roman world the idea of the equal dignity of human souls, that “[t]here is neither Jew nor Greek, there is neither bond nor free, there is neither male nor female: for you are all one in Christ Jesus.”[1] One of the most important achievements of the sexual revolution is its insistence on authentic consent to sex, and a sometimes painful sensitivity to the varieties of sexual coercion. The Romans would have regarded all of that with pitiless indifference. The modern ideology of sexual liberation has partly Christian roots.

     There were periods of enormous sexual repression in the middle ages, notably an obsessive focus on homosexuality after the twelfth century. But that followed centuries of tolerance.[2] Christian views of sexuality evidently come in flavors.

The Enlightenment can’t take sole credit for positive attitudes toward sex. Such attitudes had been around for centuries. The Enlightenment just made such views articulate among the literate classes. Nor is its secularism the sole source of disestablishment. Stone emphasizes the framers who sought to contain religion for rationalistic reasons, but American disestablishment was equally the creation of dissenting Protestants who thought that state support tended to corrupt the true faith. Religious fanatics like John Milton and Roger Williams advocated disestablishment a century before the Enlightenment.[3]

The Christians’ indispensable role in disestablishment presents a problem for Stone’s vision of a politics purged of religious influence. Stone reads the First Amendment as holding that “although religions have a right to set their own rules of behavior for those who share the faith, they cannot constitutionally enlist the authority of the state to compel others to conform their behavior to the commands of a religion that they do not accept as their own.” (532) It would be good if he said more about this principle. A lot of laws are the product of mixed motives, religious and secular.

     Stone laments the Second Great Awakening, which led to movements for alcohol prohibition and for the elimination of Sunday mail delivery. But he barely mentions the most important consequence of that religious movement: abolitionism. The deepest roots of antislavery thought were religious. The Quakers and John Wesley condemned slavery just as Voltaire, Hobbes, Locke, and Montesquieu were devising clever new justifications for it.[4] The Second Great Awakening also led courts to relax their rigid protection of vested property rights, allowing new morals laws to destroy the economic value of breweries and lotteries. Thus began the living constitutionalism that Stone relies on.[5]

There was hardly any effort to restrict pornography until soon after the Civil War, when governments began to censor on a massive scale. Stone claims that “the rationale for forbidding obscenity is rooted in particular religious beliefs.” (342) Actually, the pornography scare was a reaction to the massive migration of unsupervised young people to cities. Anxieties about masturbation – Stone includes a scary picture of harnesses designed to prevent children from doing it (148) – were based as much on secular science as religion: the medical consensus, beginning in the early 1700s, was that it was a great physical and moral danger to youth, leading to lassitude, weakness, crime, insanity, and early death. In Europe, some parents sent their sons to prostitutes as a means of preventing it.[6] (In the middle ages, Stone acknowledges, it was regarded as a minor sin.) Stone claims that these fears were “fed by the evangelical view of sex during the Second Great Awakening.” (148) But the Awakening burned out decades earlier. (There was a sexual panic before the Civil War, but it focused on Mormon polygamy.) We now know that these beliefs were nonsense, but not all nonsense is religious.

Of course, there have been times in American history when the religious mobilized to impose their own moral vision on the country. Reading Stone, you would think that this has consistently been an obstacle to human liberty. But abolitionism is the single most important religious intervention in American public life. Stone grudgingly acknowledges that, but points out that defenders of slavery also made religious arguments. Before abolitionism, though, slaveowners had no need to think of Biblical justifications. They felt no pressure to do so. Without the Social Gospel movement and the influence of Catholic communitarianism, there would have been no New Deal: Catholics were as important a part of Roosevelt’s coalition as evangelicals were of Reagan’s.[7] The Civil Rights movement originated in African-American churches. It was Martin Luther King Jr.’s adversaries who argued that religion had no place in politics.[8] Liberal churches were an important part of the movement for same-sex marriage.[9] America is a religious country, and the American left has never accomplished anything without religious allies.

One of Stone’s great strengths is his capacity to make complex legal questions clear to the general reader. His earlier book, Perilous Times: Free Speech in Wartime, is fabulous, and indispensable for readers with no legal training.

Yet Sex and the Constitution breezes over the deepest question presented by the abortion and gay rights questions: in an era in which the judiciary is broadly deferential to legislative choices, how can court intervention be justified here? Very late in the book, Stone acknowledges the problem: “the recognition of unenumerated rights is always a tricky business, because it gives the justices potentially broad authority to override the democratic process by imposing on the people their own judgments about what rights are fundamental.” (518) But not to worry: “the court has sensibly decided over time that just as expressly guaranteed constitutional rights must evolve over time in order to preserve their vitality, the same must be true of unenumerated rights.” (519) That’s all we get.

Even if one stipulates that weighty constitutional claims are at stake, courts still are required, under settled doctrine, to decide whether the laws in question are justified by a compelling interest. With pornography, the case is easy: the scientific arguments for suppressing masturbation turned out to be hooey, and free speech has always meant the right to advocate evil ideas, such as the notion (implicit in a lot of porn) that people are mere objects of appetite whose own feelings and desires don’t matter. Same-sex marriage is similarly easy: the arguments against it (once states were required to state them) were weirdly inarticulate or esoteric. As soon as these cases turn on whether the law satisfies the compelling interest test, the state has already lost. Courts could and did invalidate these laws without impugning the motives of their sponsors.

Abortion is tougher. Secular philosophers have made little progress justifying the boundaries of moral concern, and so it’s hard to prove that a state’s interest in keeping fetuses alive is not compelling. Here the exclusion of religion is crucial to Stone’s argument. “The justices clearly understood the central role that religion played in the opposition to abortion, and this concern may well have made them more reluctant than usual to defer to the ‘ordinary’ workings of the legislative process.” (398) Nineteenth century doctors’ opposition to abortion was largely based on their accurate understanding that a fetus is an organism independent from the woman carrying it, and modern arguments against abortion trade on that fact. Whatever the merits of such arguments, they do not rely on religious premises.

How bad is it if a law’s supporters are religious? Stone notes that when Californians voted against same-sex marriage in 2008, “the voting patterns made crystal clear” that the law was “a successful effort by persons holding a specific religious belief to use the authority of the law to impose their belief on their fellow citizens”: self-identified evangelicals, and those who attended church weekly, supported Proposition 8 by more than 80 percent, while non-Christians opposed it by the same margins. (466) The argument implies that the support of religious people is a kind of constitutional poison, contaminating and invalidating otherwise legitimate statutes. Of what use then is their right to vote?

Stone correctly observes that, under settled Establishment Clause doctrine, a law must have a secular legislative purpose. That matters, not because religious people aren’t allowed to participate in democratic politics, but because religious justifications aren’t available to defend otherwise unconstitutional laws.[10]

Stone acknowledges that not all religious Christians are conservative. “Most mainstream Protestants and Jews found ways to adapt their religious beliefs to changing social mores.” (259) The question whether they adapted to changing mores, or whether they developed deeper insight into the requirements of their own core beliefs, is a hard theological problem that Stone does not pause to consider. Quaker opposition to slavery in the 1730s wasn’t based on secular considerations, and it didn’t give a damn about adapting to changing social mores. They wanted to impose their religiously based views on their fellow citizens. So did the Catholic New Dealers, and so did the black churches in the civil rights movement.

Religious people sometimes support legislation based on inarticulable moral intuitions, which are causally tied to their more general views about the meaning of life. So do the nonreligious. Modern secularism, Charles Taylor has shown, began when medieval clerics started to worry about tensions between Christian benevolence and Christian doctrines and practices. It remains, in large part, a mutated form of Christianity. Intense concern about human suffering does not automatically emerge in the human psyche when religion is subtracted.[11] Stone writes with admirable moral fervor. He hates cruelty and stupidity. The enemies of human happiness are his enemies. That fervor is not necessarily inherent in a secular politics. Many who share his commitments think in religious terms.

We all have core convictions, and most of us are not moral philosophers. Either it’s acceptable to legislate on the basis of these moral hunches or it isn’t. Secularists and religious believers are in the same boat.

Stone’s evolving constitutionalism, which assigns to sex a moral importance that would have surprised the framers, rests on exactly this kind of foundation. Opponents of pornography, abortion, and gay rights weren’t troubled by sexual ignorance and frustration or by the pain they inflicted on gay men and accidentally pregnant women. Stone thinks they were wrong, and so do I, but by what logic could we prove it?

Posted on 3 July 2017

ANDREW KOPPELMAN is John Paul Stevens Professor of Law at Northwestern University.