Sex and the Constitution: Sex, Religion, and Law from America's Origins to the Twenty-First Century

by Geoffrey R. Stone

Overview

A New York Times Book Review Editors’ Choice Selection

A “volume of lasting significance” that illuminates how the clash between sex and religion has defined our nation’s history (Lee C. Bollinger, president, Columbia University).

Lauded for “bringing a bracing and much-needed dose of reality about the Founders’ views of sexuality” (New York Review of Books), Geoffrey R. Stone’s Sex and the Constitution traces the evolution of legal and moral codes that have legislated sexual behavior from America’s earliest days to today’s fractious political climate. This “fascinating and maddening” (Pittsburgh Post-Gazette) narrative shows how agitators, moralists, and, especially, the justices of the Supreme Court have navigated issues as divisive as abortion, homosexuality, pornography, and contraception. Overturning a raft of contemporary shibboleths, Stone reveals that at the time the Constitution was adopted there were no laws against obscenity or abortion before the midpoint of pregnancy. A pageant of historical characters, including Voltaire, Thomas Jefferson, Anthony Comstock, Margaret Sanger, and Justice Anthony Kennedy, enliven this “commanding synthesis of scholarship” (Publishers Weekly) that dramatically reveals how our laws about sex, religion, and morality reflect the cultural schisms that have cleaved our nation from its founding.

Product Details

ISBN-13:	9781631494284
Publisher:	Liveright Publishing Corporation
Publication date:	07/03/2018
Edition description:	Reprint
Pages:	704
Sales rank:	515,675
Product dimensions:	6.00(w) x 9.10(h) x 1.30(d)

About the Author

Geoffrey R. Stone is the author of the prize-winning Perilous Times. He is the Edward H. Levi Distinguished Service Professor of Law at the University of Chicago and one of our nation’s leading constitutional scholars.

Table of Contents

List of Illustrations xix

Acknowledgments xxiii

Prologue xxvii

Part I Ancestors

Chapter 1 The Ancient World: The Triumph of Augustine 3

"The Things of Aphrodite" 5

The Roman Way 9

The Hebraic Tradition 12

Early Christianity 15

Saint Augustine and the Pelagian Controversy 17

Chapter 2 The Power of Revealed Truth 25

"The Badge of Moral Authority" 27

Medieval Carnality 29

Self-Pollution and Fornication 31

Holy Wedlock 33

Concubitus ad non Debitum Sexum 34

"In No Way Superior to the Beasts" 40

Challenging the One True Church 41

Chapter 3 England, the Enlightenment, and "the Age of Eros" 47

Puritans and Libertines 48

Mollies and Tribades 53

Sexual Literature: "Punishable Only in the Spiritual Court" 55

Memoirs of a Woman of Pleasure 60

"The Age of Eros" 64

Part II Founders

Chapter 4 From Puritanism to the Pursuit of Happiness 73

The Puritan Way 75

"Life's Pleasures" in Eighteenth-Century New England 80

Sex in the Carolinas, the Chesapeake, and the Mid-Atlantic Colonies 82

"An Amazing Variety of Erotica" 83

The City of Brotherly Love 84

We Must Guard Against "Our Own…Licentiousness" 87

Chapter 5 The World of the Framers: A Christian Nation? 89

"Not in an Age of Faith, but in an Age of Reason" 91

Franklin: A "Thorough Deist" 94

Jefferson: A "Deliria of Crazy Imaginations" 95

Adams: "Be Just and Good" 99

Washington: "A Roman Stoic Rather Than a Christian Saint" 101

Paine: "A Villain and an Infidel" 103

"The Civil Morality Necessary to Democracy" 106

Chapter 6 "The Fundamental Maxims of Free Government" 109

"The Care of Each Man's Salvation Belongs Only to Himself" 111

One of the "Glories of the New Constitution" 112

"To Pursue the Common Good" 113

"The People Themselves": The Bill of Rights and the Origins of Judicial Review 115

Unenumerated Rights: The "Immutable Maxims of Reason and Justice" 122

"A Wall of Separation" 124

The End of the Enlightenment 127

Part III Moralists

Chapter 7 The Second Great Awakening 131

"A Spasm Among the Populace" 133

"Moral Militia" 134

Sunday Mail: "To Restore Godly Order" 136

Blasphemy: "A Gross Violation of Decency" 140

The Temperance Movement 143

Slavery: "The Blood of Souls" 144

"Aroused Lust" 145

Freethinkers and Free Love 149

The End of the Second Great Awakening 151

Chapter 8 "Tending to Corrupt the Public Morals": The Meaning of Obscenity 153

"There Ought to Be a Law" 156

Enter Comstock 157

In Defense of the "Canker Worm" 160

Serious Literature and the Standards of the Day 165

Banned in Boston 167

After Comstock 168

Theater and Film 171

"Dirt for Dirt's Sake" 174

The "Evil Stench" of Obscenity 177

Chapter 9 Contraception and Abortion: From the Founding to the 1950s 179

What Would Keep Them Chaste? 181

"The Evil of the Age" 184

The American Medical Association 187

Enter Comstock (Again) 189

Margaret Sanger and the Birth of the Birth Control Movement 194

"God Must Have Sent You to Us" 200

Contraception: A Mortal Sin? 202

Birth Control in the Twenties 204

"Many People Have Changed Their Minds" 206

Chapter 10 "Strange Freaks of Nature" 211

Looking the Other Way 212

"Strange Freaks of Nature" 214

Fairies, Queers, and Trade 220

World War I, Prohibition, and the Twenties 223

Depression 228

Chapter 11 Coming Out 231

The Good War 233

The Lavender Scare 238

"A Particularly Vicious Circle" 243

Alfred Kinsey, Evelyn Hooker, and the American Law Institute 246

Coming Out 250

Stonewalled 252

Backlash 256

Part IV Judges: Sexual Expression and This Constitution

Chapter 12 Obscenity and the First Amendment: "A Corrupting and Debasing" Influence 263

The New Purity Crusade 265

"More Speech, Not Enforced Silence" 267

"Papa Knows Best" 269

"A Great and Mysterious Motive Force" 272

Memoirs of a Woman of Pleasure Revisited 278

"Dirty Books Day" 280

"Private Thoughts" 282

Redrup 283

"A Magna Carta for Pornographers" 284

Miller and Paris Adult Theatre 287

Chapter 13 The End of Obscenity? 295

The Meese Commission 297

CEOS 298

Shifting Realities 301

"To Advance the Cause of Justice" 303

"The War Is Over and We Have Lost" 308

Porn and the Birth of the Christian Right 311

Chapter 14 Sex and Speech in the Twenty-First Century 313

"Burn the House to Roast the Pig" 314

"Filthy Words" 317

Putting the Burden Where It Belongs 322

"People Should Not Expose Their Private Parts Indiscriminately" 325

Child Pornography 332

Public Museums, Libraries, Schools, and Arts Programs 334

What Have We Wrought? 340

Part V Judges: Reproductive Freedom and The Constitution

Chapter 15 The Constitution and Contraception 351

Getting to Griswold 355

The Right to "Marital Privacy" 360

Whether "To Bear or Beget a Child" 363

Sanger's Triumph 366

Chapter 16 The Road to Roe 369

The American Law Institute, the Thalidomide Scare, and the Dark World of "Back-Alley" Abortions 370

Religion and Politics 374

The Rising Voice of the Women's Movement 376

The Battle for Legislative Legalization 378

Turning to the Courts 382

Roe 385

Reaction 393

To Boldly Go … or Not? 397

Chapter 17 Roe and Beyond 399

Rise of the Christian Right 401

Resisting Roe 406

Refining Roe 409

"Our Worst Fears Have Just Been Realized" 412

Planned Parenthood v. Casey: "I Fear for the Darkness" 415

"Partial-Birth" Abortion 420

"In the Mold of Scalia and Thomas" 422

"Partial-Birth" Abortion Revisited 425

Abortion Today 428

"Undue Burden" and the Future of Abortion 434

Part VI Judges: Sexual Orientation and The Constitution

Chapter 18 "The Gay Moment" 443

"The Plague of the Century" 445

"We Die/They Do Nothing" 447

"We Are Less Than We Ought to Be" 448

"Quit Discriminating Against People Just Because They're Gay" 450

"The Right to Serve the Country They Love" 455

"Going to the Chapel"? 459

Bombshells Across America 463

Defense of Marriage 466

Chapter 19 A Right to "Retain Their Dignity" 469

Bowers: "Homosexual Sodomy Is Immoral" 471

"Judeo-Christian Values … Cannot Provide an Adequate Justification" 474

Romer: "A Bare Desire to Harm" 477

Lawrence: "An Emerging Awareness" 481

The Court and the "Homosexual Agenda" 484

An Occasion for Dancing in the Streets 487

Chapter 20 Same-Sex Marriage and the Constitution 491

The Terms of the Debate 494

"The Right to Marry the Person of One's Choice" 497

"We're Going to Take You Out" 499

The Long and Winding Road to … the Supreme Court 501

Windsor: DOMA's Demise 505

In the Wake of Windsor 508

"The Other Shoe" 511

"The Constitution… Had Nothing to Do with It" 515

So, Who Is Right? 516

Looking to the Future 521

Epilogue 531

Notes 539

Index 639

Editorial Reviews

01/02/2017
Constitutional scholar Stone (Perilous Times) explores how the United States has regulated human sexuality from the colonial period to the present day. Beginning with a brief discussion of attitudes toward sexuality in the ancient world, medieval Europe, England, and Puritan New England, the author then outlines the Enlightenment-era concerns regarding government, religion, and individual freedom that shaped the U.S. constitutional law, and the lasting influence of the Second Great Awakening on morality laws. After providing this background, the work combines a thematic and roughly chronological survey of Christian attitudes toward, and U.S. legal treatment of, three areas of human sexuality: sexual speech and obscenity, abortion and contraception, and homosexual acts and identity. This title is a commanding synthesis of scholarship on over two centuries of American legal debate and practice regarding these issues, and would work well as the core text for a course of the subject. Less developed is the history of Christian attitudes regarding sexuality, with the work repeatedly situating American Christianity in opposition to more tolerant secular values. The work also lacks any substantive discussion of non-Christian religious approaches to sexuality and liberty. Despite these limitations, Stone’s analysis is highly recommended for anyone seeking an introduction to the history of U.S. law and sexual expression. (Mar.)

Publishers Weekly

"This fascinating account of how sexual mores, religion, and law have intersected or—more often—collided throughout American history is really about even more than that. It’s about the role of law in maintaining a civil society in a diverse twenty-first-century America, and a call to the Supreme Court to step up to the challenge."

Linda Greenhouse

"A comprehensive history and analysis of our law's fitful and frequently schizophrenic treatment of sex…A story that is both fascinating and maddening…This book brings us all the way up to the controversies of our day (including gay marriage) and offers tantalizing glimpses of some of the legal battles that lie ahead…Those interested in adding historical context to their thinking about these hot button issues would be well-advised to add Stone's book to their summer reading list."

Pittsburgh Post-Gazette - David Wecht

"Sex, which has simultaneously inspired and eluded regulation through the ages, has been the focus of many of our greatest constitutional controversies. No one is better suited than the always erudite and lucid Geoffrey Stone to provide the panoramic treatment that the subject deserves. Unless you are the rare person who has no interest in either the Constitution or sex, you will want to read this book."

David Cole

"Magnificent and monumental—a stunning blend of dispassionate analysis and deep moral conviction. Think that the United States was born as a Christian nation? Think again."

Cass R. Sunstein

"A volume of lasting significance that quickly will become essential reading not only for law students and scholars but for all who want to better understand sweeping cultural transformations that continue to roil society."

Lee C. Bollinger

"A superb examination of the history of how the law has regulated sexual behavior and sexual expression from the ancient world to today."

Erwin Chemerinsky

"This masterpiece is the rarest of combinations: a page-turner that is also a magisterial font of wisdom."

Laurence H. Tribe

"Writing confidently and expertly about several centuries of American laws regulating sex, Stone shows that the line between moral and religious reasoning was almost always illusory. . . . Sex and the Constitution is most persuasive when Stone turns to America, and his comprehensive knowledge of constitutional law is put on full display. He is especially good on the eighteenth century, bringing a bracing and much-needed dose of reality about the Founders’ views of sexuality. . . . [A] very important book."

New York Review of Books - Annette Gordon-Reed

★ 02/15/2017
In this impressive study, renowned constitutional scholar Stone (Edward H. Levi Distinguished Service Professor of Law, Univ. of Chicago Law Sch.; Perilous Times: Free Speech in Wartime) investigates the evolving nature of sexual mores as they are shaped by religion and the law. Stone accomplishes this gargantuan, decadelong project through assiduous interdisciplinary research, organizing the material into six parts: "Ancestors," "Founders," "Moralists," "Judges: Sexual Expression and the Constitution," "Judges: Reproductive Freedom and the Constitution," and "Judges: Sexual Orientation and the Constitution." Part 1 is a history of sex and religion from antiquity through the Enlightenment. Devoting attention to U.S. founders and the creation of the Constitution, Part 2 explores the history of sexual mores and religion in early America. Part 3 examines the role of Protestant "moralism," particularly as it has shaped beliefs about homosexuality. The next two sections examine the role of judicial decision-making regarding sexual expression, reproductive freedom, and sexual orientation. VERDICT The definitive work on the topic and indispensable for readers of Sarah Barringer Gordon's The Spirit of the Law. [See Prepub Alert, 9/12/16.]—Lynne Maxwell, West Virginia Univ. Coll. of Law Lib., Morgantown

Library Journal

★ 2017-01-04
Sexual expression, obscenity, contraception, and abortion are the focus of this wide-ranging legal, political, and social history.Stone (Law/Univ. of Chicago; Speaking Out!: Reflections on Law, Liberty and Justice, 2010, etc.), a constitutional scholar whose previous books include an award-winning history of free speech, offers a broad, fascinating overview of the nation's shifting, often incendiary, attitudes toward sexuality and the impact of those attitudes on politics and law. Colonists "clearly and emphatically rejected" Puritans' repressive views about sex, and the country's founders, Stone asserts, had no interest in regulating sexuality nor in promoting Christianity. Most were "broad-minded skeptics who viewed religious passion as divisive and irrational, and who consistently challenged, both publicly and privately, traditional Christian dogma." The claim that America is a "Christian nation" originated in the Second Great Awakening, which swept the country from the 1790s to the 1840s. At a time of unsettling social change, "charismatic preachers" excited religious passions that infused "politics, culture, education, relations between the sexes, attitudes about sex," and, most significantly, views on the relationship between religion and government. Believing sex to be sinful, evangelicals mounted a campaign against masturbation and contraception; without fear of pregnancy, they claimed, women's inherent lasciviousness would be uncontrollable. After the Civil War, those ideas were taken up by Anthony Comstock, who policed sexuality with unabated vigor, specifically the dissemination of obscene material through the postal service; obscenity laws persisted even after his death in 1915. In the 1970s, Protestant fundamentalists incited a third awakening, embraced by the Republican Party that coveted the voting power of the Moral Majority. Stone enlivens his narrative with deft portraits of the many judges involved in cases on obscenity, contraception, abortion, and same-sex marriage. Some Supreme Court justices, appointed to uphold the views of the Christian right, disappointed their constituencies. The author applauds decisions that reflect the "protection of human dignity and equality" and believes, maybe too optimistically, that religious groups are now "on the defensive." A compelling history of a nation grappling with the moral and legal freedoms that the founders strived to ensure.

Kirkus Reviews