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Sex and the Constitution: Sex, Religion, and Law from America's Origins to the Twenty-First Century
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.
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.
680 pages, Kindle Edition
First published March 21, 2017
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About the author
Geoffrey R. Stone
91 books45 followersGeoffrey Stone is Edward H. Levi Distinguished Service Professor at The University of Chicago Law School.
Geoffrey Stone has been a member of the law faculty since 1973. From 1987 to 1993, Mr. Stone served as Dean of the Law School, and from 1993 to 2002 he served as Provost of the University of Chicago. Mr. Stone received his undergraduate degree in 1968 from the University of Pennsylvania and his law degree in 1971 from the University of Chicago Law School, where he served as Editor-in-Chief of the Law Review. Mr. Stone served as a law clerk to Judge J. Skelly Wright of the U.S. Court of Appeals for the District of Columbia Circuit and to Justice William J. Brennan Jr. of the Supreme Court of the United States. Mr. Stone was admitted to the New York Bar in 1972.
Mr. Stone teaches and writes primarily in the area of constitutional law. His most recent books are Top Secret: When Our Government Keeps Us in the Dark (2007) and War and Liberty: An American Dilemma (2007). Mr. Stone’s Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism (2004) received numerous national awards, including the Robert F. Kennedy Book Award for 2005, the Los Angeles Times Book Prize for 2004 as the best book in the field of history, the American Political Science Association's Kammerer Award for 2005 for the best book in Political Science, the Hefner Award for the best book on the First Amendment, and Harvard University's 2005 Goldsmith Award for the best book in the field of Public Affairs.
Mr. Stone is currently chief editor of a fifteen-volume series, Inalienable Rights, which is being published by the Oxford University Press between 2006 and 2012. The authors in the series include, among others, Richard Posner, Richard Epstein, Alan Dershowitz, Larry Lessig, Martha Nussbaum, Jack Rakove, Pamela Karlan, Lee Bollinger, and Larry Tribe.
Mr. Stone is working on a new book, Sexing the Constitution, which will explore the historical evolution in western culture of the intersection of sex, religion, and law. His past works include Eternally Vigilant: Free Speech in the Modern Era (2001), The Bill of Rights in the Modern State (1992) (with Mr. Epstein and Mr. Sunstein), Constitutional Law (6th ed. 2009) (with Mr. Sunstein), and The First Amendment (3d ed. 2008) (with Mr. Sunstein). Mr. Stone also serves as an editor of the Supreme Court Review (with Mr. Hutchinson and Mr. Strauss), and he writes frequently for huffingtonpost.com and for such publications as the New York Times, the Chicago Tribune, and the Wall Street Journal.
Among his many public activities, Mr. Stone is a member of the national Board of Directors of the American Constitution Society, a member of the National Advisory Council of the American Civil Liberties Union, a Fellow of the American Academy of Arts and Sciences, a member of the American Philosophical Society, a member of the American Law Institute, a member of the Straight for Equality Project of PFLAG, and a member of the Board of the Chicago Children's Choir.
Geoffrey Stone has been a member of the law faculty since 1973. From 1987 to 1993, Mr. Stone served as Dean of the Law School, and from 1993 to 2002 he served as Provost of the University of Chicago. Mr. Stone received his undergraduate degree in 1968 from the University of Pennsylvania and his law degree in 1971 from the University of Chicago Law School, where he served as Editor-in-Chief of the Law Review. Mr. Stone served as a law clerk to Judge J. Skelly Wright of the U.S. Court of Appeals for the District of Columbia Circuit and to Justice William J. Brennan Jr. of the Supreme Court of the United States. Mr. Stone was admitted to the New York Bar in 1972.
Mr. Stone teaches and writes primarily in the area of constitutional law. His most recent books are Top Secret: When Our Government Keeps Us in the Dark (2007) and War and Liberty: An American Dilemma (2007). Mr. Stone’s Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism (2004) received numerous national awards, including the Robert F. Kennedy Book Award for 2005, the Los Angeles Times Book Prize for 2004 as the best book in the field of history, the American Political Science Association's Kammerer Award for 2005 for the best book in Political Science, the Hefner Award for the best book on the First Amendment, and Harvard University's 2005 Goldsmith Award for the best book in the field of Public Affairs.
Mr. Stone is currently chief editor of a fifteen-volume series, Inalienable Rights, which is being published by the Oxford University Press between 2006 and 2012. The authors in the series include, among others, Richard Posner, Richard Epstein, Alan Dershowitz, Larry Lessig, Martha Nussbaum, Jack Rakove, Pamela Karlan, Lee Bollinger, and Larry Tribe.
Mr. Stone is working on a new book, Sexing the Constitution, which will explore the historical evolution in western culture of the intersection of sex, religion, and law. His past works include Eternally Vigilant: Free Speech in the Modern Era (2001), The Bill of Rights in the Modern State (1992) (with Mr. Epstein and Mr. Sunstein), Constitutional Law (6th ed. 2009) (with Mr. Sunstein), and The First Amendment (3d ed. 2008) (with Mr. Sunstein). Mr. Stone also serves as an editor of the Supreme Court Review (with Mr. Hutchinson and Mr. Strauss), and he writes frequently for huffingtonpost.com and for such publications as the New York Times, the Chicago Tribune, and the Wall Street Journal.
Among his many public activities, Mr. Stone is a member of the national Board of Directors of the American Constitution Society, a member of the National Advisory Council of the American Civil Liberties Union, a Fellow of the American Academy of Arts and Sciences, a member of the American Philosophical Society, a member of the American Law Institute, a member of the Straight for Equality Project of PFLAG, and a member of the Board of the Chicago Children's Choir.
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Displaying 1 - 30 of 90 reviews
June 12, 2018
This is an excellent book outlining the control that religious groups have exerted over sexual behavior – be it contraception, abortion, gay rights, and let us say sex in general (sex outside marriage, consensual adult sex, reading “forbidden” books...).
The author gives us a short history of Christianity and how it brought shame, guilt, and repression to all forms of sexuality. The Christian faith and their various offshoots were able to do this for over one thousand years until the Enlightenment.
Page 80 my book
The twentieth-century historian Crane Brinton once quipped that in the sexual realm we now permit “much that the nineteenth century forbade”, but whether we have yet returned “to eighteenth century standards is a nice point of critical discussion.”
The author then goes on to demonstrate how religious forces in the U.S. have constantly exerted a very strong influence over government legislation. It began in the 19th century with Anthony Comstock who devised a successful campaign to arrest anyone dealing with “lewd” literature, contraceptives, and abortion. What was once legal became a criminal offense. Women no longer had access to abortion, and some, in desperation, resorted to methods which caused many to die.
What is also interesting is how religious forces continually organize to combat what is legal at State and Federal levels. Prime examples are the legality of abortion (obtained in 1973) and the growing acceptance of Gay marriage. Over the years they have constantly narrowed down the parameters by which a woman can have an abortion.
By religious groups I am referring to fundamentalist churches and the Roman Catholic Church. Their use of rhetoric against abortion and gay people has grown increasing vitriolic and hateful.
The author successfully predicts the recent Supreme Court decision on a bakery being permitted to refuse to make a wedding cake for a same-sex couple because the bakery felt it violated their religious beliefs. Where does this all end? I will not cut your hair because it offends my religious beliefs, I will not work with a Muslim individual because of their beliefs, a male will not work with a female because it is against their religion. More and more the religious world is impinging on the secular world. Many religious groups equivocate sin with crime.
The author exposes how different judges on the Supreme Court are being chosen or refused due to their beliefs. Barack Obama had a Supreme Court nominee (Chief Judge Merrick Garland) voted down by Republicans because his views were too moderate (or liberal).
The U.S. is becoming increasingly polarized between conservative-religious states and liberal-tolerant states. This divisiveness continues to grow.
Nevertheless it is truly remarkable the progress that sexuality has made since the 1950’s. Much of this is due to the constant pressure that women’s’ groups made (which also included support from men) to control their lives and bodies. The same can said for the advances Gay people have made. In many ways sex, in all its wonder, came out of the closet. All this is due to long fought efforts against religious and government forces.
I am constantly perplexed by the religious adversaries who want to control other people’s sexual lives.
Of course this book being about sex is very readable and entertaining. Some of the constitution stuff is interesting too!
The author gives us a short history of Christianity and how it brought shame, guilt, and repression to all forms of sexuality. The Christian faith and their various offshoots were able to do this for over one thousand years until the Enlightenment.
Page 80 my book
The twentieth-century historian Crane Brinton once quipped that in the sexual realm we now permit “much that the nineteenth century forbade”, but whether we have yet returned “to eighteenth century standards is a nice point of critical discussion.”
The author then goes on to demonstrate how religious forces in the U.S. have constantly exerted a very strong influence over government legislation. It began in the 19th century with Anthony Comstock who devised a successful campaign to arrest anyone dealing with “lewd” literature, contraceptives, and abortion. What was once legal became a criminal offense. Women no longer had access to abortion, and some, in desperation, resorted to methods which caused many to die.
What is also interesting is how religious forces continually organize to combat what is legal at State and Federal levels. Prime examples are the legality of abortion (obtained in 1973) and the growing acceptance of Gay marriage. Over the years they have constantly narrowed down the parameters by which a woman can have an abortion.
By religious groups I am referring to fundamentalist churches and the Roman Catholic Church. Their use of rhetoric against abortion and gay people has grown increasing vitriolic and hateful.
The author successfully predicts the recent Supreme Court decision on a bakery being permitted to refuse to make a wedding cake for a same-sex couple because the bakery felt it violated their religious beliefs. Where does this all end? I will not cut your hair because it offends my religious beliefs, I will not work with a Muslim individual because of their beliefs, a male will not work with a female because it is against their religion. More and more the religious world is impinging on the secular world. Many religious groups equivocate sin with crime.
The author exposes how different judges on the Supreme Court are being chosen or refused due to their beliefs. Barack Obama had a Supreme Court nominee (Chief Judge Merrick Garland) voted down by Republicans because his views were too moderate (or liberal).
The U.S. is becoming increasingly polarized between conservative-religious states and liberal-tolerant states. This divisiveness continues to grow.
Nevertheless it is truly remarkable the progress that sexuality has made since the 1950’s. Much of this is due to the constant pressure that women’s’ groups made (which also included support from men) to control their lives and bodies. The same can said for the advances Gay people have made. In many ways sex, in all its wonder, came out of the closet. All this is due to long fought efforts against religious and government forces.
I am constantly perplexed by the religious adversaries who want to control other people’s sexual lives.
Of course this book being about sex is very readable and entertaining. Some of the constitution stuff is interesting too!
December 21, 2020
I bought this purely because Dakota Johnson talked about it in her Architectural Digest house tour and I love her and her kitchen. But also so so interesting !!
Read
December 16, 2016Review forthcoming in Publishers Weekly. This is an excellent survey of American law and public attitudes toward the regulation of three aspects of human sexuality: sexual speech/"obscenity", abortion and contraception, and homosexual acts and identities. It races through about 100 pages of "prequel" narrative, discussing attitudes toward sexuality in the ancient world and European legal and Christian traditions. The majority of the text focuses on the period from the Second Great Awakening to the present. While the author, a constitutional scholar, offers a commanding overview of recent scholarship on the legal aspect of regulating sex he somewhat shortchanges the discussion of religion. The book discusses Christianity almost exclusively and its discussion of Christianity focuses on Christian morality as an impetus to regulate human sexuality rather than exploring Christian-based calls for greater personal liberty or freedom of expression. Still highly recommended, particularly for classroom use. Its extensive endnotes provide much by way of further reading.
December 15, 2017
Very good history of the social and cultural context in which the Constitution was written and how American ideas on issues like abortion, homosexuality, contraception, and sex have changed over time. Seems like we used to be more reasonable and got less so over time. Toward the end, there is too much discussion of each individual justice on the court and his or her leanings on each case (which is a personal pet peeve of mine on all supreme court writing) and not enough analysis of the general trends. Also, I think there could have been more focus on legislation instead of all on the court. But I suppose this is a book about the Constitution so the court being its only arbiter is properly placed at the center of the tale. It's just that there is so much more that affects day to day attitudes and regulations than just SCOTUS decisions. This is essential reading though to understand the history of each of our hot button social issues from the founding until today.
February 17, 2023
Wow, that was long! Really, really detailed book about SO much, especially court cases in the US. Really great info in here - sometimes it can be too much! Like so much information! Especially since it’s a lot of history, and I’m more about the analysis. And the analysis is great when Stone does it, so I kinda wish there were more.
Also, it is kinda disappointing that there’s not any attention paid to trans people and not a lot of information regarding POC. Like, yeah, you could argue that information would be in a separate book… but I dunno, would be nice to be in here.
Also, it is kinda disappointing that there’s not any attention paid to trans people and not a lot of information regarding POC. Like, yeah, you could argue that information would be in a separate book… but I dunno, would be nice to be in here.
January 31, 2024
i got this book during my fit of rage following the overturn of roe v wade and, unlike the supreme court, it did not disappoint!!
i’m only giving it a 4 because it took me SO long to get through the first half of the book that focuses on puritan culture and sex in ancient rome and stuff. obviously this historical background was 100% necessary to have a well-developed comprehensive book on sex and the law, i just almost had to give up during this part but i’m glad i didn’t!
otherwise i was actually super engaged with this book. the author did a phenomenal job showing the changes in control over sexual behavior throughout various religious time periods like the enlightenment and the second great awakening. it covered all sex-related topics such as obscenity in media and homosexuality, not just abortion. it talks about specific politicians / presidents / justices and how they switched their stances depending on which one would get them more votes.
i also thought there wasn’t a very obvious political bias by the author which i always appreciate! thanks geoffrey!
i’m only giving it a 4 because it took me SO long to get through the first half of the book that focuses on puritan culture and sex in ancient rome and stuff. obviously this historical background was 100% necessary to have a well-developed comprehensive book on sex and the law, i just almost had to give up during this part but i’m glad i didn’t!
otherwise i was actually super engaged with this book. the author did a phenomenal job showing the changes in control over sexual behavior throughout various religious time periods like the enlightenment and the second great awakening. it covered all sex-related topics such as obscenity in media and homosexuality, not just abortion. it talks about specific politicians / presidents / justices and how they switched their stances depending on which one would get them more votes.
i also thought there wasn’t a very obvious political bias by the author which i always appreciate! thanks geoffrey!
March 27, 2021
I was having a lot of fun listening to this audiobook when, about 14 hours in, the platform I was listening to it on decided to forget the spot where I left off. I don't have the energy to go back and find it.
Overall, this is a very thorough look into everything to do with regulations around sex in the history of the U.S. and I recommend it to anyone interested in the topic.
Overall, this is a very thorough look into everything to do with regulations around sex in the history of the U.S. and I recommend it to anyone interested in the topic.
April 21, 2020
I laughed a little (did you know in the 20s, gay men said YMCA stood for, "why I'm so gay") but mostly I got really angry at literally everyone. But this book is a compelling and detailed journey into the legal side of sex and everything it entails.
July 31, 2023
This book seemed very intimidating at first but was actually quite manageable. If you ever want to spend a lot of time with a book- I think this is a good one. I learned a lot of information that I feel no one ever talks about. Thank you Dakota Johnson for the recommendation:)
April 16, 2017
This is really a 4.5 star review. Based on being more than 500 pages of text this is clearly a deep dive into the subject matter. If you are looking for a basic overview of the themes and concepts, read the 5-page epilogue. It focuses on the First and Fourteenth amendments as they relate to speech and private conduct respectively. Deeply researched, this book tracks history from Greek and Roman times to 2017 just before Neil Gorsuch's nomination to the court.
Although long it's not hard to read at least if you're a lawyer. I'm not sure of the appeal to the lay audience. The author does a very nice job of providing historical context to decisions and how various presidents and state legislatures addressed these issues. In sum a good book if you like the subject matter.
Although long it's not hard to read at least if you're a lawyer. I'm not sure of the appeal to the lay audience. The author does a very nice job of providing historical context to decisions and how various presidents and state legislatures addressed these issues. In sum a good book if you like the subject matter.
April 21, 2018
This may be substituted for anyone who feels lacking in their civics lessons. Sexual expression, obscenity, contraception, and abortion are the focus of this wide-ranging legal, political, and social history; a nation grappling with the moral and legal freedoms that the founders strived to ensure.
Stone offers a broad overview of the nation’s shifting attitudes toward sexuality and the impact of those attitudes on politics and law. Colonists emphatically rejected Puritans’ repressive views about sex. The country’s founders had no interest in regulating sexuality nor in promoting Christianity. Most viewed religious passion as divisive and consistently challenged 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. Those ideas were taken up by Anthony Comstock, who policed sexuality with vigor. In the 1970s, Protestant fundamentalists incited a third awakening, embraced by the Republican Party that coveted the voting power of the Moral Majority. To-date the 14th amendment (equal protection) has prevailed. Let's hope it continues to.
Stone offers a broad overview of the nation’s shifting attitudes toward sexuality and the impact of those attitudes on politics and law. Colonists emphatically rejected Puritans’ repressive views about sex. The country’s founders had no interest in regulating sexuality nor in promoting Christianity. Most viewed religious passion as divisive and consistently challenged 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. Those ideas were taken up by Anthony Comstock, who policed sexuality with vigor. In the 1970s, Protestant fundamentalists incited a third awakening, embraced by the Republican Party that coveted the voting power of the Moral Majority. To-date the 14th amendment (equal protection) has prevailed. Let's hope it continues to.
September 18, 2017
This book is massively overambitious and could easily have split this into two or three books. The introduction is critical to understanding thesis, structure, and avoiding land-mines. There are essentially three sections to the book - the first on the history of sexuality from ancient times, the second on sexuality and law in America before about 1950, and a third on contemporary issues of sexuality (abortion, gay rights, pornography) in the Supreme Court. Stone is at his best where he discusses Supreme Court decisions and case law, is reasonably through in American History (esp his treatment of the Comstock Law). His treatment of non-American pre-modern sexuality ranges from "meh" to "holy shit, you just glossed over a lot." Some of his best points talk to the ways that religious conservative movements have defined and influenced secular law in the US.
June 14, 2017
People's sexual conduct was generally outside the purview of government and court authority until religious reformers (or meddlers) during the Second Great Awakening began extending their reach into private matters. In the post-Civil War era, state intrusion gained momentum with the Comstock Laws, fashioned by ill-intended fanatic Anthony Comstock. Like or not, the Supreme Court would inherit much of the controversy right to the present.
Very detailed, but readable though it occasionally strays into extraneous areas. Excellent background coverage of the famous Griswald and Roe cases and how they have continued to ignite partisan passions.
Very detailed, but readable though it occasionally strays into extraneous areas. Excellent background coverage of the famous Griswald and Roe cases and how they have continued to ignite partisan passions.
July 5, 2017
This book offers excellent factual background and analysis of the trajectory of constitutional law in the areas of obscenity , same sex marriage /gay rights and abortion. It is highly recommended for anyone interested in these topics. The book is both scholarly and written in an entertaining manner, two things that often do not go hand in hand.
November 6, 2017
Based on the title of this book, I wasn't initially sure what to expect, but quickly determined that it wasn't written as an appeal to one's prurient interests. Instead, the book's primary focus is reviewing how many of our laws dealing with individual interests of a private nature, especially items dealing with access to birth control, abortion, gay rights, etc., came to be. There's been a significant shift in how society views and judges on these issues over the years, and "Sex and the Constitution" examines how this came to be.
In thinking of those changes, I remember when, probably in the late 50's and early 60's, television censors made sure that offensive language couldn't be used, that risque behavior would never be aired, even married couples wouldn't be shown in bed together, and certainly there'd be no nudity shown in film or TV. In everyday life, obscenity laws were strictly observed, there was no birth control pill, gays were isolated and shunned, and abortion was only done in illegally dark alleys, much to the detriment of a woman's health. This was a reflection of a conservative time in polite society based on "accepted christian" values.
Today, things are much different. Geoffrey Stone, a University of Chicago Law Professor, takes us through the steps which changed these conservative Christian beliefs and Victorian era norms regarding male/female behavior. Today's laws and acceptible norms of society give individuals much greater freedom of expression in these private matters. In exploring how views have been changing, Mr. Stone explores the basis of the earlier Victorian, puritanical laws that had been in place during the 19th and 20th Century.
You'll be hard pressed to find specific mentions or prohibitions of sexual practices in the Constitution. To examine the background of rules governing "normal" sexual behaviors, Mr. Stone takes us through evolving social attitudes from ancient to recent times, starting with the Greek and Roman empires. Many may have heard stories of Greeks competing naked in the original Olympics, or of Greek soldiers being accompanied by young men during battle campaigns for sexual partnership, and have seen how the naked form of both men and women were celebrated in Greek sculpture. These stories provide some insights as to how these civilizations viewed nudity and sexual practices. Mr. Stone points out that many practices including birth control, abortion, fornication, same-sex sex, etc., were common and "normal" in ancient times. There were few or no laws or condemnations of these activities.
Prohibitions involving sexual activities seemed first to appear in Church teachings based on the writings of St. Augustine, who himself appeared to have had a weakness of the flesh as a young man. Eventually, he tried to correct his earlier prediliction for multiple female partners, and ended up believing and teaching that sex is a weakness, and should be practices only for procreation. This became accepted Church teaching, but rules governing sexual practices were not generally incorporated into secular law.
Jumping forward, when North American colonies were being established, conservative religious groups became established, especially in the colonies of New England, and brought a strict form of puritism with them. Life in their colonies were quite intolerant of deviations from dictated religious practices. One can think of the Salem witch trials as one example of intolerance from established norms. In some cases, intolerance was at such a level that the practices of those revered Pilgrims had parallels to some of the most conservative Islamists today. Both might condemn, ostracize, or even kill those accused of blasphemy, adultery, or not strictly following religious teachings and social mandates. But in those early colonial days, these practices remained governed by religious beliefs, and were not initially mandated under civil law.
Mr. Stone points out that many of these conservative religious beliefs became established to some extent in the New England colonies, but still argues against the idea that the U.S. was founded as a Christian Nation. Religious beliefs remained mostly separate from secular laws, and points out that many of the founding fathers more likely to be deists at best vs. conservative Christian zealots.
As far as the Founding Fathers establishing the Country as a "Christian Nation", not only were they careful to establish separation between church and state, but Mr. Stone pointed out that one of the first Treaties made by our country addressed this very issue. Article 11 of the Treaty of Tripoli establishing shipping rights between the United States and Tripoli declared "the Government of the United States of America is not, in any sense, founded on the Christian religion." This treaty was ratified by the Senate without dissent, and signed by President John Adams in 1797.
Despite an attempt to keep church rules separate from secular law, Christian values did begin to creep into State Laws during the Victorian Age in the early to mid 19th Century, primarily at the prompting of religious activists. Anthony Comstock was one of the key actors in this movement, and politicized the ideas of Victorian morality. Under his influence, the Comstock Act was passed during the Grant Administration, and outlawing indecent and obscene materials, including teaching about birth control. The belief of these conservative social and religious leaders was that if women were allowed to use birth control, it would lead to them becoming promiscuous. Even today, there are politicians who push sex ed programs based on abstinance versus providing education about birth control in order to keep young women "pure".
At any rate, strict rules against obscenity, birth control, abortion, same-sex sex, etc. became part of the legal code at this time. Following enactment of the Comstock Act, one couldn't even say anything dealing with sex, much less teach or inform people about the body, sexual practices, contraception, or abortion. Opponents of these laws fought a losing cause. For example, Margaret Sanger, a social activist who fought to teach women about birth control and abortion, was periodically prosecuted and jailed under Comstock Act regulations.
Eventually, especially after World War I and the Roaring Twenties, social norms evolved, and judicial rulings dealing with Comstock Act violations began to change, ultimately leading to a number of judicial appeals and Supreme Court reviews. The book goes into some detail in the latter sections discussing a number of recent Supreme Court decisions affecting birth control, gay rights, and especially about abortion over the years. Mr. Stone provides an excellent review of these issues, explaining how laws loosening the old rules came to be enacted despite religious objections to the changes. It's interesting to note that, if the public surveys referenced in the book on these issues can be believed, the majority of Americans gradually came to favor teaching about birth control, allowing a woman's right to choose, passing gay right legislation, etc. However, pressure from conservative religious groups (e.g., people who vote) opposed these initiatives, resulting in a Congress reluctant to pass more liberalized legislation.
Mr. Stone provides ample discussion on both sides of these many issues, and the rational for how many of the current court decisions have been made. He also explains that the law may not yet be settled on many of these issues, and that future Supreme Court cases may change how laws are interpreted.
In thinking of those changes, I remember when, probably in the late 50's and early 60's, television censors made sure that offensive language couldn't be used, that risque behavior would never be aired, even married couples wouldn't be shown in bed together, and certainly there'd be no nudity shown in film or TV. In everyday life, obscenity laws were strictly observed, there was no birth control pill, gays were isolated and shunned, and abortion was only done in illegally dark alleys, much to the detriment of a woman's health. This was a reflection of a conservative time in polite society based on "accepted christian" values.
Today, things are much different. Geoffrey Stone, a University of Chicago Law Professor, takes us through the steps which changed these conservative Christian beliefs and Victorian era norms regarding male/female behavior. Today's laws and acceptible norms of society give individuals much greater freedom of expression in these private matters. In exploring how views have been changing, Mr. Stone explores the basis of the earlier Victorian, puritanical laws that had been in place during the 19th and 20th Century.
You'll be hard pressed to find specific mentions or prohibitions of sexual practices in the Constitution. To examine the background of rules governing "normal" sexual behaviors, Mr. Stone takes us through evolving social attitudes from ancient to recent times, starting with the Greek and Roman empires. Many may have heard stories of Greeks competing naked in the original Olympics, or of Greek soldiers being accompanied by young men during battle campaigns for sexual partnership, and have seen how the naked form of both men and women were celebrated in Greek sculpture. These stories provide some insights as to how these civilizations viewed nudity and sexual practices. Mr. Stone points out that many practices including birth control, abortion, fornication, same-sex sex, etc., were common and "normal" in ancient times. There were few or no laws or condemnations of these activities.
Prohibitions involving sexual activities seemed first to appear in Church teachings based on the writings of St. Augustine, who himself appeared to have had a weakness of the flesh as a young man. Eventually, he tried to correct his earlier prediliction for multiple female partners, and ended up believing and teaching that sex is a weakness, and should be practices only for procreation. This became accepted Church teaching, but rules governing sexual practices were not generally incorporated into secular law.
Jumping forward, when North American colonies were being established, conservative religious groups became established, especially in the colonies of New England, and brought a strict form of puritism with them. Life in their colonies were quite intolerant of deviations from dictated religious practices. One can think of the Salem witch trials as one example of intolerance from established norms. In some cases, intolerance was at such a level that the practices of those revered Pilgrims had parallels to some of the most conservative Islamists today. Both might condemn, ostracize, or even kill those accused of blasphemy, adultery, or not strictly following religious teachings and social mandates. But in those early colonial days, these practices remained governed by religious beliefs, and were not initially mandated under civil law.
Mr. Stone points out that many of these conservative religious beliefs became established to some extent in the New England colonies, but still argues against the idea that the U.S. was founded as a Christian Nation. Religious beliefs remained mostly separate from secular laws, and points out that many of the founding fathers more likely to be deists at best vs. conservative Christian zealots.
As far as the Founding Fathers establishing the Country as a "Christian Nation", not only were they careful to establish separation between church and state, but Mr. Stone pointed out that one of the first Treaties made by our country addressed this very issue. Article 11 of the Treaty of Tripoli establishing shipping rights between the United States and Tripoli declared "the Government of the United States of America is not, in any sense, founded on the Christian religion." This treaty was ratified by the Senate without dissent, and signed by President John Adams in 1797.
Despite an attempt to keep church rules separate from secular law, Christian values did begin to creep into State Laws during the Victorian Age in the early to mid 19th Century, primarily at the prompting of religious activists. Anthony Comstock was one of the key actors in this movement, and politicized the ideas of Victorian morality. Under his influence, the Comstock Act was passed during the Grant Administration, and outlawing indecent and obscene materials, including teaching about birth control. The belief of these conservative social and religious leaders was that if women were allowed to use birth control, it would lead to them becoming promiscuous. Even today, there are politicians who push sex ed programs based on abstinance versus providing education about birth control in order to keep young women "pure".
At any rate, strict rules against obscenity, birth control, abortion, same-sex sex, etc. became part of the legal code at this time. Following enactment of the Comstock Act, one couldn't even say anything dealing with sex, much less teach or inform people about the body, sexual practices, contraception, or abortion. Opponents of these laws fought a losing cause. For example, Margaret Sanger, a social activist who fought to teach women about birth control and abortion, was periodically prosecuted and jailed under Comstock Act regulations.
Eventually, especially after World War I and the Roaring Twenties, social norms evolved, and judicial rulings dealing with Comstock Act violations began to change, ultimately leading to a number of judicial appeals and Supreme Court reviews. The book goes into some detail in the latter sections discussing a number of recent Supreme Court decisions affecting birth control, gay rights, and especially about abortion over the years. Mr. Stone provides an excellent review of these issues, explaining how laws loosening the old rules came to be enacted despite religious objections to the changes. It's interesting to note that, if the public surveys referenced in the book on these issues can be believed, the majority of Americans gradually came to favor teaching about birth control, allowing a woman's right to choose, passing gay right legislation, etc. However, pressure from conservative religious groups (e.g., people who vote) opposed these initiatives, resulting in a Congress reluctant to pass more liberalized legislation.
Mr. Stone provides ample discussion on both sides of these many issues, and the rational for how many of the current court decisions have been made. He also explains that the law may not yet be settled on many of these issues, and that future Supreme Court cases may change how laws are interpreted.
September 3, 2019
Excellent history of how society has tried to understand and control sex since ancient times. It's really shocking to me how much effort was spent in controlling the sexual behaviors of consenting adults. The focus could have been concentrated in helping those who did not consent. Rather, so much of society's time, money, and resources were spent on policing things both adult parties enjoyed.
It was not surprising that some laws were constructed for all (e.g. sodomy), and so should have been enforced among all people no matter if they were gay or straight. Indeed, that is how they were written. However, they were selectively enforced to target same sex couples. It is so easy to see what a colossal waste of time, money, and psychological suffering these policies caused. I wonder what people in 50 - 100 years will scoff at when they read about our current laws that attempt to control the sex lives of their citizens.
Well researched and engaging.
It was not surprising that some laws were constructed for all (e.g. sodomy), and so should have been enforced among all people no matter if they were gay or straight. Indeed, that is how they were written. However, they were selectively enforced to target same sex couples. It is so easy to see what a colossal waste of time, money, and psychological suffering these policies caused. I wonder what people in 50 - 100 years will scoff at when they read about our current laws that attempt to control the sex lives of their citizens.
Well researched and engaging.
January 1, 2019
Stone walks the line between responsible academic research and a tone that makes his arguments and facts readily available, and, more importantly, deeply interesting. He traces the pendulum—of liberal and conservative, of secular vs religious control over the relationship between individual liberty (and the privacy of one’s body and sexuality) and conservative religious morality. Sadly, the belief in an always forward march of history is challenged by this ever shifting struggle.
November 20, 2024
5/5 ⭐️ a dense and detailed read, extremely thoughtfully presented that analyzes how ideas and laws about obscenity, sex, homosexuality, abortion, marriage and contraceptives have changed over time. I thought it was especially interesting to understand how the myth of America as a “Christian nation” was generated and how religious ideals have been weaponized against women and queer folk in establishing and maintaining laws around these key topics.
June 18, 2022
Easy to read, eye-opening, and important history on the intersection of sex, faith and government. I was surprised to learn that the practice of legislating morality was constantly in question because of the establishment clause. Morality is inherently religious in nature and subjective. We now have the most religious supreme court in at least a century. Is it unreasonable to expect them to ditch 250 years of judicial precedence to start making rulings based largely on conservative Catholic faith tradition?
December 24, 2022
VERY dense book with tons of political and legal information. I enjoyed learning about the origins/ history of laws in United States related to “sex”. It’s insane how much power and success major religious institutions have had/ do have in influencing our laws. I am disappointed in the lack of an intersectional lens, particularity regarding race & reproductive rights and trans rights.
October 1, 2022
it’s definitely a long one but it was incredibly well done and i really enjoyed it, am literally going to write the author about it
January 5, 2020
One, Inc. v. Olsen (1958)
first SCOTUS ruling to deal with homosexuality and the first to rule in its favor
ONE Magazine (via Mattachine Society) deemed obscene by FBI
Significance: facilitated flourishing of a gay community
Bowers v. Hardwick (1986)
SCOTUS rules 5-4 that right to privacy under Due Process Clause does not give homosexuals the right to engage in sodomy
Romer v. Evans (1996)
SCOTUS rules 6-3 to strike down CO's Amendment 2, which denied gays and lesbians protection from discrimination
Lawrence v. Texas (2003)
Overturns Bowers v. Hardwick. Kennedy in majority: "Cannot demean gays' existence ... by making their private sexual conduct a crime."
United States v. Windsor (2013)
Rules the 1996 Defense of Marriage Act unconstitutional.
Dissenting: Roberts, Scalia, Alito, Thomas
Hollingsworth v. Perry (2013)
Upheld lower court's ruling to overturn CA's Prop 8
Obergefell v. Hodges (2015)
Legalizes same-sex marriage
Our social mores and laws governing sexual behavior are deeply bound up with religious beliefs and traditions
Yet it is puzzling -- founders were acutely aware of the perils of blending religion with policy and so expressly delineated in the Constitution the separation of church and state
Nothing in our Constitution guarantees a right to sexual freedom
In the pre-Christian world (namely Greeks, Romans, ancient Hebrews) regarded most forms of sex as natural and pleasurable facets of human life
Christians forged a new understanding of sex and its relation to sin
Early Puritans in the New World rooted their ideas about sex and sexuality in religion
The Enlightenment ushered in a new wave of tolerant attitudes toward forms of sexual life
PART 1 -- ANCESTORS
Greeks incredibly progressive sexually -- believed it a natural and healthy part of life that enriched the human experience -- same-sex sex not unusual or frowned upon
Romans likewise sex-forward, to a lesser degree (homosexual sex frowned upon insofar as a man takes a submissive role)
Hebrew Bible contains no condemnation of sexual pleasure
But Leviticus writes: "If a man also be with mankind, as he lieth with a woman, both of them have committed an abomination; they shall surely be put to death."
Stone: "This prohibition, of uncertain date, seems to have originated as part of the effort of the Hebrews to separate themselves from the Gentiles by expressly condemning the then-prevalent Greek practice of pederasty (man and boy.)
Although this passage calls for the death penalty, this shouldn't be taken too seriously.
The Hebrew Bible also called for the death penalty for such offenses as witchcraft, failure to observe the Sabbath, and cursing one's parent.
Story of Sodom has been used to justify Biblical opposition to same-sex sex; though in the Jewish tradition, this story has consistently been understood as a moral about the duty of hospitality. Its use as anti-homosexual justification stretches the text and other biblical references to the event.
Other references in the Bible to Sodom (Jesus' included) condemn him for inhospitality, not same-sex sex
It was Augustine (354 AD) who crystallized the early Christian understanding of sex and who, in so doing, helped shape American views of sexuality more than a millennium later
Augustine likened lust to the expulsion of Adam and Eve from the Garden of Eden, and thus sex and the sexual act as the root of all evil in mankind, that must be abdicated save for procreational purposes.
Martin Luther and the Reformation countervailed; he argued that sex was ordained by God and natural
Sodomy was not a crime in England until 1533, when Parliament first declared such conduct unlawful
Enlightenment ideals spurred a new wave of thinking but had its limitations; attitudes toward female sexuality were ambivalent
PART 2 -- FOUNDERS
Puritan rule was staid, austere (think Scarlet Letter)
Later sexual culture proliferated ... Thomas Jefferson and Ben Franklin were known to collect and recommend erotic books
"Not an age of faith, but an age of reason"
*note, the Founding Fathers were highly critical of Christianity and its dictates
Though politically useful with regards to the moral precepts Christianity espouses, the Framers seemed to agree that religious justifications for the fledgling state and Constitution were unwise; instead, "reason" out to prevail. Founders were "deists" -- Washington often referred to some supreme force or higher power, but never identified in name
Jefferson even denied Jesus' divinity though ascribed to him human excellence
Though Franklin spoke to the useful contributions religion could make to a fledgling nation – provides a motive for virtuous action
Framers nevertheless decided to separate church and state … though guaranteed in First Amendment freedom to practice any religion
[Note – fascinating how today conservatives invoke religious belief and Constitutional grounding to justify discrimination against the LGBTQ community, when (a) founders themselves were not strict Christians nor would they find it acceptable to use Biblical doctrine to warrant any argument litigating the public good (b) separation of church and state is expressly delineated in the Founding documents (c) the Biblical evidence used to justify these beliefs is itself tenuous. It is remarkable how much success the Christian Right has enjoyed considering how antithetical its beliefs are to those of our nations’ founding.]
[Note – how the pendulum swings! Progress does not move in a straight line. The most progressive culture with regards to sex and sexuality were the ancient Greeks, centuries ago. Since then the arc has swung back and forth, the dividing line time and time again between religious conservatives and reason-based enlightenment thinkers, progressive ideals.
Even the founding fathers, it seemed, had to debate Christian conservatives as they sought to have religious law codified in the Constitution. Deist but more secular and reason-based themselves, the Framers resisted these advances.
What is most disturbing is that we are still litigating iterations of the same divides the Framers faced – Christian zeal vs. The rational secularists. The Church is the most mighty institution in the planet, by God, as it is confounding to me how these arguments hold any water on issues ranging from same-sex marriage to abortion rights. Clearly the doctrine of Christianity is being used as a weapon to promote the conservative agenda, but the most confounding question to me is: why? For what motivate? To what end? I cannot for the life of me understand what political benefit it serves for an old, white, straight male Congressman to deprive to women the right to love or a woman who was raped the right to abort the fetus.]
The Second Great Awakening (1790s-1840s) marked an era of religious revivalism in America … foreshadowed many of the issues that have risen in contemporary disputes over the appropriate role of religion in efforts to use the secular law to forbid obscenity, contraception, abortion, homosexuality, and same-sex marriage.
Frances Wright, a Scottish woman, was one of the most outspoken opponents of the evangelical movement – the real hero of the freethinking circuit
During the Second Great Awakening (early 1800s), the evangelicals reignited what became a bitter dispute over Sunday Mail Delivery, arguing that delivering mail on the Sabbath violated Christian doctrine. For several years, the evangelical campaign to end Sunday mail service engulfed the nation in controversy. Ultimately, an argument from Congressman Richard Johnson of Kentucky carried the day: “Religious combinations to effect a political object are dangerous.”
[Note: this incident strikes me as far more significant than the attention Stone gives in the book. The litigation of religion and its role in public policy dates back to the early 1800s -- a period of staunch Republican revivalism – and the verdict was against the evangelical movement, and the rationale that carried the day was purveyed by a Congressman from Kentucky of all places. Now, homosexual rights and Sunday mail delivery are vastly different, to be sure. But they are parallel cases when it comes to the extent to which religious justification ought to play a role in its litigation—not at all.
This was understood even then.
Also, this issue boils down to self-interest and convenience. Oh, so why suddenly aren’t we adhering strictly to the Bible? What’s the incentive for cherry-picking? Ah. Simple. People want their mail on Sunday.
And so, to an age-old question: how ought we to reconcile the First Amendment’s explicit freedom to practice religion with the homosexuals’ right to live? How do we make it personal to people, realign the incentives so it inconveniences folks just as much as no mail on a Sunday did?
The answer seems clear to me, and yet we live in a world where a Colorado bake shop can refuse to bake a cake for a gay couple, and be justified in doing so on the basis of religious rights, validated by SCOTUS. To any rational person, this ruling is inane. If religious justification is indeed a valid warrant for committing an act, can I stone my brother for cursing my mother and be let off scot-free? I was just practicing my religion, after all! Can I shoot a man for committing adultery? Can I rightfully murder my neighbor for failing to observe the Sabbath? The Bible and other religious texts proscribe all sorts of acts that today we would find unconscionable. So why on earth is a nation so committed to separation of church and state allowing for religious-based discrimination against homosexuals?
Even further, insofar as the Constitution allows for freedom to practice any religion, we can extrapolate this further—what if I practice a religion that orders me to murder anyone who treats me poorly? Or commit mass genocide? Would SCOTUS protect me then?
And so, the question naturally becomes, where to draw the line? I think the precedent set with regards to limitations of the First Amendment provide a useful example. For instance, there are limitations to freedom of speech – one is barred from shouting ‘fire’ in a movie theater if there is none. This stipulation has been filed under ‘clear and present danger.’ And so, the rationale here seems to be, you are free to speka as you wish, insofar as you do not harm others.
Likewise, the Constitutional provision to freely practice one’s religion should extend only insofar as your religion does not harm another, does not impede upon one’s ability to live freely.
One might argue that the Colorado bake shop case would not fall under such a category insfoar as the gay couples’ freedom to live was not impinged upon; they were not harmed in any way, and they could easily go elsewhere to find a cake.
But then, I would say, would SCOTUS tolerate such behavior if this were a black couple; and the shop owner was discriminating on the base of race?
The qualities are parallel – they are immutable traits – one does not choose to be a homosexual ny more than one chooses to be black. They are biological traits that constitute a minority class that have been historically discriminated against.
And even further; if every cake shop enforced such an upheld policy, then would it not be possible for the couple to find a wedding cake?
And so, here we are. As the laws stand homosexuals remain a legally unprotected class of fragmented citizens.
Not for long.
Fact – during the 20th century civil rights struggle, segregationists invoked Biblical authority. Christian theology was deeply interwoven into the segregationist ideology that supported Jim Crow laws. The parallels between civil rights and gay rights are vast.
Fact -- the Christian Right were uproarious when Jefferson was elected, arguing his deism was perverse and not finding him pious enough. But time has a way of smoothing over rough edges... reimaginingand glorifying reality... and so today, the most conservative evangelical Republicans hold Jefferson in high regard.
The YMCA was established in the 1840s to ‘give God-fearing young men a place for proper leisure activities.’ Paradoxically, the Y became the hotbed for young gay males to meet and have sex.
Anthony Comstock, born 1844, spearheaded a sweeping campaign against public/sexual immorality and largely defined the way sex was seen and regulated in civil life. His impact cannot be understated. The Comstock Act was signed into law by President Grant in 1873. It criminalized the use of a broad swath of items deemed to be obscene: from printed materials to contraceptives. For four decades, Comstock launched a crusade to suppress obscenity.
The changing cultural and societal norms of the Roaring Twenties sharply pivoted from Comstock’s world
The Hicklin Test – the legal test for obscenity established by the English case Regina v. Hicklin (1868). Held that all material intending to deprave and corrupt was obscene, regardless of artistic or literary merit
Perhaps the most pivotal casein the gradual whittling away of the Hicklin standard centered on Joyce’s Ulysses. U.S. Court of Appeals under Judge Hand held that obscenity should be judged in terms of a work’s dominant effect, I.e., context matters, obscenity was in service of a broader story.
Over the course of the century, the primary concern of course was whether any particular work was obscene within the meaning of the common law, Comstock Act, or state statute. It was assumed that obscenity was not protected by the First Amendment.
[Note—again, this is curious to me. Obscenity was for many years viewed as not protected by the First Amendment. Again, this underscores the idea that the First Amendment’s freedoms are not absolute; in many realms it has historically been interpreted by liberal and conservative justices alike to have exceptions. The question is under what circumstances these exceptions apply; in many cases, highlighted by the obscenity point, it does not seem to be grounded in common sense or legality whatsoever but instead by historical contingencies.
Also curious to note that the same folks who twisted the First Amendment to exclude obscenity are the same ones who twist the amendment in the opposite direction to include religious-based speech to discriminate against LGBTQ individuals.]
[Note—the homosexual movement would do well to rebrand itself. Frank Kameny took us a step in that direction with the “Gay is Good” campaign. As the book itself illustrates the LGBTQ movement has historically and legally been tied to issues of sex, of obscenity, of immorality. That is the prevailing tone of the homosexual agenda – the right to have sex. However, we need to reframe the fight as the right to love. We have taken strides in th
first SCOTUS ruling to deal with homosexuality and the first to rule in its favor
ONE Magazine (via Mattachine Society) deemed obscene by FBI
Significance: facilitated flourishing of a gay community
Bowers v. Hardwick (1986)
SCOTUS rules 5-4 that right to privacy under Due Process Clause does not give homosexuals the right to engage in sodomy
Romer v. Evans (1996)
SCOTUS rules 6-3 to strike down CO's Amendment 2, which denied gays and lesbians protection from discrimination
Lawrence v. Texas (2003)
Overturns Bowers v. Hardwick. Kennedy in majority: "Cannot demean gays' existence ... by making their private sexual conduct a crime."
United States v. Windsor (2013)
Rules the 1996 Defense of Marriage Act unconstitutional.
Dissenting: Roberts, Scalia, Alito, Thomas
Hollingsworth v. Perry (2013)
Upheld lower court's ruling to overturn CA's Prop 8
Obergefell v. Hodges (2015)
Legalizes same-sex marriage
Our social mores and laws governing sexual behavior are deeply bound up with religious beliefs and traditions
Yet it is puzzling -- founders were acutely aware of the perils of blending religion with policy and so expressly delineated in the Constitution the separation of church and state
Nothing in our Constitution guarantees a right to sexual freedom
In the pre-Christian world (namely Greeks, Romans, ancient Hebrews) regarded most forms of sex as natural and pleasurable facets of human life
Christians forged a new understanding of sex and its relation to sin
Early Puritans in the New World rooted their ideas about sex and sexuality in religion
The Enlightenment ushered in a new wave of tolerant attitudes toward forms of sexual life
PART 1 -- ANCESTORS
Greeks incredibly progressive sexually -- believed it a natural and healthy part of life that enriched the human experience -- same-sex sex not unusual or frowned upon
Romans likewise sex-forward, to a lesser degree (homosexual sex frowned upon insofar as a man takes a submissive role)
Hebrew Bible contains no condemnation of sexual pleasure
But Leviticus writes: "If a man also be with mankind, as he lieth with a woman, both of them have committed an abomination; they shall surely be put to death."
Stone: "This prohibition, of uncertain date, seems to have originated as part of the effort of the Hebrews to separate themselves from the Gentiles by expressly condemning the then-prevalent Greek practice of pederasty (man and boy.)
Although this passage calls for the death penalty, this shouldn't be taken too seriously.
The Hebrew Bible also called for the death penalty for such offenses as witchcraft, failure to observe the Sabbath, and cursing one's parent.
Story of Sodom has been used to justify Biblical opposition to same-sex sex; though in the Jewish tradition, this story has consistently been understood as a moral about the duty of hospitality. Its use as anti-homosexual justification stretches the text and other biblical references to the event.
Other references in the Bible to Sodom (Jesus' included) condemn him for inhospitality, not same-sex sex
It was Augustine (354 AD) who crystallized the early Christian understanding of sex and who, in so doing, helped shape American views of sexuality more than a millennium later
Augustine likened lust to the expulsion of Adam and Eve from the Garden of Eden, and thus sex and the sexual act as the root of all evil in mankind, that must be abdicated save for procreational purposes.
Martin Luther and the Reformation countervailed; he argued that sex was ordained by God and natural
Sodomy was not a crime in England until 1533, when Parliament first declared such conduct unlawful
Enlightenment ideals spurred a new wave of thinking but had its limitations; attitudes toward female sexuality were ambivalent
PART 2 -- FOUNDERS
Puritan rule was staid, austere (think Scarlet Letter)
Later sexual culture proliferated ... Thomas Jefferson and Ben Franklin were known to collect and recommend erotic books
"Not an age of faith, but an age of reason"
*note, the Founding Fathers were highly critical of Christianity and its dictates
Though politically useful with regards to the moral precepts Christianity espouses, the Framers seemed to agree that religious justifications for the fledgling state and Constitution were unwise; instead, "reason" out to prevail. Founders were "deists" -- Washington often referred to some supreme force or higher power, but never identified in name
Jefferson even denied Jesus' divinity though ascribed to him human excellence
Though Franklin spoke to the useful contributions religion could make to a fledgling nation – provides a motive for virtuous action
Framers nevertheless decided to separate church and state … though guaranteed in First Amendment freedom to practice any religion
[Note – fascinating how today conservatives invoke religious belief and Constitutional grounding to justify discrimination against the LGBTQ community, when (a) founders themselves were not strict Christians nor would they find it acceptable to use Biblical doctrine to warrant any argument litigating the public good (b) separation of church and state is expressly delineated in the Founding documents (c) the Biblical evidence used to justify these beliefs is itself tenuous. It is remarkable how much success the Christian Right has enjoyed considering how antithetical its beliefs are to those of our nations’ founding.]
[Note – how the pendulum swings! Progress does not move in a straight line. The most progressive culture with regards to sex and sexuality were the ancient Greeks, centuries ago. Since then the arc has swung back and forth, the dividing line time and time again between religious conservatives and reason-based enlightenment thinkers, progressive ideals.
Even the founding fathers, it seemed, had to debate Christian conservatives as they sought to have religious law codified in the Constitution. Deist but more secular and reason-based themselves, the Framers resisted these advances.
What is most disturbing is that we are still litigating iterations of the same divides the Framers faced – Christian zeal vs. The rational secularists. The Church is the most mighty institution in the planet, by God, as it is confounding to me how these arguments hold any water on issues ranging from same-sex marriage to abortion rights. Clearly the doctrine of Christianity is being used as a weapon to promote the conservative agenda, but the most confounding question to me is: why? For what motivate? To what end? I cannot for the life of me understand what political benefit it serves for an old, white, straight male Congressman to deprive to women the right to love or a woman who was raped the right to abort the fetus.]
The Second Great Awakening (1790s-1840s) marked an era of religious revivalism in America … foreshadowed many of the issues that have risen in contemporary disputes over the appropriate role of religion in efforts to use the secular law to forbid obscenity, contraception, abortion, homosexuality, and same-sex marriage.
Frances Wright, a Scottish woman, was one of the most outspoken opponents of the evangelical movement – the real hero of the freethinking circuit
During the Second Great Awakening (early 1800s), the evangelicals reignited what became a bitter dispute over Sunday Mail Delivery, arguing that delivering mail on the Sabbath violated Christian doctrine. For several years, the evangelical campaign to end Sunday mail service engulfed the nation in controversy. Ultimately, an argument from Congressman Richard Johnson of Kentucky carried the day: “Religious combinations to effect a political object are dangerous.”
[Note: this incident strikes me as far more significant than the attention Stone gives in the book. The litigation of religion and its role in public policy dates back to the early 1800s -- a period of staunch Republican revivalism – and the verdict was against the evangelical movement, and the rationale that carried the day was purveyed by a Congressman from Kentucky of all places. Now, homosexual rights and Sunday mail delivery are vastly different, to be sure. But they are parallel cases when it comes to the extent to which religious justification ought to play a role in its litigation—not at all.
This was understood even then.
Also, this issue boils down to self-interest and convenience. Oh, so why suddenly aren’t we adhering strictly to the Bible? What’s the incentive for cherry-picking? Ah. Simple. People want their mail on Sunday.
And so, to an age-old question: how ought we to reconcile the First Amendment’s explicit freedom to practice religion with the homosexuals’ right to live? How do we make it personal to people, realign the incentives so it inconveniences folks just as much as no mail on a Sunday did?
The answer seems clear to me, and yet we live in a world where a Colorado bake shop can refuse to bake a cake for a gay couple, and be justified in doing so on the basis of religious rights, validated by SCOTUS. To any rational person, this ruling is inane. If religious justification is indeed a valid warrant for committing an act, can I stone my brother for cursing my mother and be let off scot-free? I was just practicing my religion, after all! Can I shoot a man for committing adultery? Can I rightfully murder my neighbor for failing to observe the Sabbath? The Bible and other religious texts proscribe all sorts of acts that today we would find unconscionable. So why on earth is a nation so committed to separation of church and state allowing for religious-based discrimination against homosexuals?
Even further, insofar as the Constitution allows for freedom to practice any religion, we can extrapolate this further—what if I practice a religion that orders me to murder anyone who treats me poorly? Or commit mass genocide? Would SCOTUS protect me then?
And so, the question naturally becomes, where to draw the line? I think the precedent set with regards to limitations of the First Amendment provide a useful example. For instance, there are limitations to freedom of speech – one is barred from shouting ‘fire’ in a movie theater if there is none. This stipulation has been filed under ‘clear and present danger.’ And so, the rationale here seems to be, you are free to speka as you wish, insofar as you do not harm others.
Likewise, the Constitutional provision to freely practice one’s religion should extend only insofar as your religion does not harm another, does not impede upon one’s ability to live freely.
One might argue that the Colorado bake shop case would not fall under such a category insfoar as the gay couples’ freedom to live was not impinged upon; they were not harmed in any way, and they could easily go elsewhere to find a cake.
But then, I would say, would SCOTUS tolerate such behavior if this were a black couple; and the shop owner was discriminating on the base of race?
The qualities are parallel – they are immutable traits – one does not choose to be a homosexual ny more than one chooses to be black. They are biological traits that constitute a minority class that have been historically discriminated against.
And even further; if every cake shop enforced such an upheld policy, then would it not be possible for the couple to find a wedding cake?
And so, here we are. As the laws stand homosexuals remain a legally unprotected class of fragmented citizens.
Not for long.
Fact – during the 20th century civil rights struggle, segregationists invoked Biblical authority. Christian theology was deeply interwoven into the segregationist ideology that supported Jim Crow laws. The parallels between civil rights and gay rights are vast.
Fact -- the Christian Right were uproarious when Jefferson was elected, arguing his deism was perverse and not finding him pious enough. But time has a way of smoothing over rough edges... reimaginingand glorifying reality... and so today, the most conservative evangelical Republicans hold Jefferson in high regard.
The YMCA was established in the 1840s to ‘give God-fearing young men a place for proper leisure activities.’ Paradoxically, the Y became the hotbed for young gay males to meet and have sex.
Anthony Comstock, born 1844, spearheaded a sweeping campaign against public/sexual immorality and largely defined the way sex was seen and regulated in civil life. His impact cannot be understated. The Comstock Act was signed into law by President Grant in 1873. It criminalized the use of a broad swath of items deemed to be obscene: from printed materials to contraceptives. For four decades, Comstock launched a crusade to suppress obscenity.
The changing cultural and societal norms of the Roaring Twenties sharply pivoted from Comstock’s world
The Hicklin Test – the legal test for obscenity established by the English case Regina v. Hicklin (1868). Held that all material intending to deprave and corrupt was obscene, regardless of artistic or literary merit
Perhaps the most pivotal casein the gradual whittling away of the Hicklin standard centered on Joyce’s Ulysses. U.S. Court of Appeals under Judge Hand held that obscenity should be judged in terms of a work’s dominant effect, I.e., context matters, obscenity was in service of a broader story.
Over the course of the century, the primary concern of course was whether any particular work was obscene within the meaning of the common law, Comstock Act, or state statute. It was assumed that obscenity was not protected by the First Amendment.
[Note—again, this is curious to me. Obscenity was for many years viewed as not protected by the First Amendment. Again, this underscores the idea that the First Amendment’s freedoms are not absolute; in many realms it has historically been interpreted by liberal and conservative justices alike to have exceptions. The question is under what circumstances these exceptions apply; in many cases, highlighted by the obscenity point, it does not seem to be grounded in common sense or legality whatsoever but instead by historical contingencies.
Also curious to note that the same folks who twisted the First Amendment to exclude obscenity are the same ones who twist the amendment in the opposite direction to include religious-based speech to discriminate against LGBTQ individuals.]
[Note—the homosexual movement would do well to rebrand itself. Frank Kameny took us a step in that direction with the “Gay is Good” campaign. As the book itself illustrates the LGBTQ movement has historically and legally been tied to issues of sex, of obscenity, of immorality. That is the prevailing tone of the homosexual agenda – the right to have sex. However, we need to reframe the fight as the right to love. We have taken strides in th
This entire review has been hidden because of spoilers.
July 29, 2024
The book takes a BIG view of the topic of sex, so it includes homosexuality, birth control, obscenity and abortion rights. It divides the books into six sections, roughly chronological but mainly divided by subject. (I have put my summaries of them below.) Overall, this is an outstanding piece of work. It is well-researched and well-written. It doesn't pull any punches from its view point (clearly pro-sexual rights) and creates a very convincing analysis. I highly recommend it.
Stone's overall point is that attitudes towards sex (including homosexual and heterosexual sex, birth control, obscenity and abortion) can be divided into three sections, both socially and legally.
1. The Framers were firm in believing that the majority should not dictate morality to the minority, so even if there were laws about sex, abortion, homosexuality and obscenity, they were rarely enforced.
2. The 2nd Great Awakening changed all that with "moralists" deciding that the state should dictate morals for the good of the community. This led to more social stigma as well as strong legislation on what is sexually permissible.
3. Starting in the 1960s with 2nd wave feminism and the gay rights movement, there has been a movement to get the government out of our bedroom, culminating in court decisions on gay marriage, strengthening abortion rights, and less restrictive obscenity laws.
Stone cautions that while it seems a victorious march of progress, a change in the makeup of the Supreme Court could reverse all of those gains. The book was written in 2016, so he new Trump had won but didn't know he would get to nominate three justices.
Here are my notes on each section:
1. It starts with a look at sexuality in ancient civilizations, specifically those that impacted the United States. They were ancient Greeks, Romans, Jews and eventually Christians. He argues that most of these religions accepted heterosexual sex as natural but sometimes condemned gay sex. (I use this term because the term Stone uses is "same-sex sex" and is just awkward.) Jews began to condemn homosexual intercourse after the Babylonian captivity when they were trying to reestablish their identity, so highlighted what made them different. Christians didn't say much about sex except for adultery until St. Augustine condemned all pleasures of the sex, insisting that sex was only for reproduction. He was reinforced by Saint Thomas Aquinas centuries later.
2. The second section gets to North America finally and starts with Puritans view of sex. They believed that sex was natural but must occur within marriage. Puritan influence was largely lost by 1700, with the colonists views being more open about sex. The Framers usually were also open about sex, condemning religious superstition about it. Many were Deists who believed in rationality and the right to pursue one's own happiness. So while there were laws against some sexual acts, like sodomy, they were never enforced. His overall point in this section is that the Framer's never considered the United States a "christian nation" so putting prohibitions on sex because of religious belief never crossed their mind.
3. The third section covers the "moralist" come back starting at the second great awakening. They condemn sex outside of marriage, as well as profanity and homosexuality (not the term they used at the time). Moralists argued that the United States was a Christian nation and the laws should respect Christian values. They were successful in getting the Comstock Act passed (Anthony Comstock was the Moralist leader) which banned mailing pornography or anything promoting abortion. Abortion became a target partly because of the rise of religious fervor following the 2nd Great Awakening, but also as a way for the newly established AMA to take power away from midwifes. The abortion debate blurred into condemning birth control, until people like Margaret Sanger fought to say that women should control whether they decided to be mothers, while opponents said essentially said that birth control was unnatural and went so far as to say that sex for pleasure was essentially legalized prostitution.
The third section also includes a large section on homosexuality, which was always frowned upon by society but was viewed as actually dangerous in WW2 and the early Cold War. There was no movement to combat homophobia because that would require the organizers and participants to acknowledge that they were gay. The Stonewall riots started the gay-rights movement where gay men and women advocated openly to stop discrimination against gays, but it was a slow march of progress, including Ronald Reagan refusing to do anything about the AIDS epidemic because it mainly affected gays.
4. Part four look at obscenity laws. These started in the 19th century as any literature referring to sex, like Lady Chatterly's Lover, but the definition of what was obscene shifted with time. Ulysses was deemed to not be obscene because it was culturally relevant and valuable. The Warren Court made a mess of it by not defining pornography except "I know it when I see it", meaning they had a lot of porn cases as they were the arbiter of what was porn and what wasn't. The Berger Court offered a tighter definition of pornography, but soon found that neither local nor federal law enforcement wanted to devote resources to dirty movies. Cable and the internet made enforcement even more difficult so that by the time of the Obama Administration, prosecution for obscenity was largely over. As one anti-porn crusader put, the war is over. We lost. As a result, nearly anything is permissible as long as only consenting adults see it. Non-consenting adults and children need not see such things so they cannot be publicly displayed. The exception is child pornography, which is forbidden even to consenting adults.
5. Part five is about abortion and its legality. Stone argues that the Framers probably didn't think much about abortion, but it was legal and generally accepted until the 2nd Great Awakening. During that time, "moralists" moved to ban the procedure. This gained extra traction because of the creation of the American Medical Association, which was trying to take over birthing medical care from mid-wives, who usually performed abortions. This stayed the norm until the 1960s when some states started to make abortion legal again, but only slowly. The majority of Americans believed abortion should be legal but those that opposed it were often one-issue voters. Then Roe was decided and the political calculus changed. Initially, Democrats (who were closely associated with the Catholic Church) were against abortion and Republicans were generally in favor of it, but Republican leaders and strategists realized that by making an anti-abortion platform, they could bring the growing evangelical christians into their camp. As a result every Republican president has promised to stack the court with anti-Roe justices, although they had limited success with that initially. Instead Roe was upheld through several SCOTUS decisions. This book was written in 2016, so it missed out on the Dobbs decision.
6. Part six is about gender and sexuality. It traces the laissez-faire attitude of the Framers (sodomy was often illegal but the law was rarely enforced) to the more rigid enforcement of moral standards in the 2nd Great Awakening. Homosexuality remained both a crime and and violation of strong social norms until the latter part of the 20th century. Beginning with the Stonewall riots in the 1960s, there has been a slow acceptance of homosexuality. This is reflected in the Supreme Court. In the 1980s it ruled that anti-sodomy laws were legal, but it reversed itself in the 1990s, declaring that what happened between consenting adults in the privacy of their how was not the governments' business. Then came the striking down of DOMA followed by Obergefell, which legalized gay marriage.
Stone's overall point is that attitudes towards sex (including homosexual and heterosexual sex, birth control, obscenity and abortion) can be divided into three sections, both socially and legally.
1. The Framers were firm in believing that the majority should not dictate morality to the minority, so even if there were laws about sex, abortion, homosexuality and obscenity, they were rarely enforced.
2. The 2nd Great Awakening changed all that with "moralists" deciding that the state should dictate morals for the good of the community. This led to more social stigma as well as strong legislation on what is sexually permissible.
3. Starting in the 1960s with 2nd wave feminism and the gay rights movement, there has been a movement to get the government out of our bedroom, culminating in court decisions on gay marriage, strengthening abortion rights, and less restrictive obscenity laws.
Stone cautions that while it seems a victorious march of progress, a change in the makeup of the Supreme Court could reverse all of those gains. The book was written in 2016, so he new Trump had won but didn't know he would get to nominate three justices.
Here are my notes on each section:
1. It starts with a look at sexuality in ancient civilizations, specifically those that impacted the United States. They were ancient Greeks, Romans, Jews and eventually Christians. He argues that most of these religions accepted heterosexual sex as natural but sometimes condemned gay sex. (I use this term because the term Stone uses is "same-sex sex" and is just awkward.) Jews began to condemn homosexual intercourse after the Babylonian captivity when they were trying to reestablish their identity, so highlighted what made them different. Christians didn't say much about sex except for adultery until St. Augustine condemned all pleasures of the sex, insisting that sex was only for reproduction. He was reinforced by Saint Thomas Aquinas centuries later.
2. The second section gets to North America finally and starts with Puritans view of sex. They believed that sex was natural but must occur within marriage. Puritan influence was largely lost by 1700, with the colonists views being more open about sex. The Framers usually were also open about sex, condemning religious superstition about it. Many were Deists who believed in rationality and the right to pursue one's own happiness. So while there were laws against some sexual acts, like sodomy, they were never enforced. His overall point in this section is that the Framer's never considered the United States a "christian nation" so putting prohibitions on sex because of religious belief never crossed their mind.
3. The third section covers the "moralist" come back starting at the second great awakening. They condemn sex outside of marriage, as well as profanity and homosexuality (not the term they used at the time). Moralists argued that the United States was a Christian nation and the laws should respect Christian values. They were successful in getting the Comstock Act passed (Anthony Comstock was the Moralist leader) which banned mailing pornography or anything promoting abortion. Abortion became a target partly because of the rise of religious fervor following the 2nd Great Awakening, but also as a way for the newly established AMA to take power away from midwifes. The abortion debate blurred into condemning birth control, until people like Margaret Sanger fought to say that women should control whether they decided to be mothers, while opponents said essentially said that birth control was unnatural and went so far as to say that sex for pleasure was essentially legalized prostitution.
The third section also includes a large section on homosexuality, which was always frowned upon by society but was viewed as actually dangerous in WW2 and the early Cold War. There was no movement to combat homophobia because that would require the organizers and participants to acknowledge that they were gay. The Stonewall riots started the gay-rights movement where gay men and women advocated openly to stop discrimination against gays, but it was a slow march of progress, including Ronald Reagan refusing to do anything about the AIDS epidemic because it mainly affected gays.
4. Part four look at obscenity laws. These started in the 19th century as any literature referring to sex, like Lady Chatterly's Lover, but the definition of what was obscene shifted with time. Ulysses was deemed to not be obscene because it was culturally relevant and valuable. The Warren Court made a mess of it by not defining pornography except "I know it when I see it", meaning they had a lot of porn cases as they were the arbiter of what was porn and what wasn't. The Berger Court offered a tighter definition of pornography, but soon found that neither local nor federal law enforcement wanted to devote resources to dirty movies. Cable and the internet made enforcement even more difficult so that by the time of the Obama Administration, prosecution for obscenity was largely over. As one anti-porn crusader put, the war is over. We lost. As a result, nearly anything is permissible as long as only consenting adults see it. Non-consenting adults and children need not see such things so they cannot be publicly displayed. The exception is child pornography, which is forbidden even to consenting adults.
5. Part five is about abortion and its legality. Stone argues that the Framers probably didn't think much about abortion, but it was legal and generally accepted until the 2nd Great Awakening. During that time, "moralists" moved to ban the procedure. This gained extra traction because of the creation of the American Medical Association, which was trying to take over birthing medical care from mid-wives, who usually performed abortions. This stayed the norm until the 1960s when some states started to make abortion legal again, but only slowly. The majority of Americans believed abortion should be legal but those that opposed it were often one-issue voters. Then Roe was decided and the political calculus changed. Initially, Democrats (who were closely associated with the Catholic Church) were against abortion and Republicans were generally in favor of it, but Republican leaders and strategists realized that by making an anti-abortion platform, they could bring the growing evangelical christians into their camp. As a result every Republican president has promised to stack the court with anti-Roe justices, although they had limited success with that initially. Instead Roe was upheld through several SCOTUS decisions. This book was written in 2016, so it missed out on the Dobbs decision.
6. Part six is about gender and sexuality. It traces the laissez-faire attitude of the Framers (sodomy was often illegal but the law was rarely enforced) to the more rigid enforcement of moral standards in the 2nd Great Awakening. Homosexuality remained both a crime and and violation of strong social norms until the latter part of the 20th century. Beginning with the Stonewall riots in the 1960s, there has been a slow acceptance of homosexuality. This is reflected in the Supreme Court. In the 1980s it ruled that anti-sodomy laws were legal, but it reversed itself in the 1990s, declaring that what happened between consenting adults in the privacy of their how was not the governments' business. Then came the striking down of DOMA followed by Obergefell, which legalized gay marriage.
September 2, 2021
Don't read this right now.
Give it... a couple of years? For the wound of what happened yesterday to scab over.
...But what if it gets worse?
You know what? Eff it. Read this book. Right now. Get angry.
Sex and the Constitution, a book about our laws and how they've been interpreted to both oppress and liberate us, was published in early 2017.
That was before Kavanaugh.
That was before Coney Barrett.
That was before September 1, 2021, when Texas effectively banned all abortions.
Geoffrey Stone worked incredibly hard to pull together a book like this. One that begins in Ancient Greece and Rome, and then hovers over the 1970s - present day. He's here to tell us how we got where we're going; how fragile our rights are. He backs up his opinions in the few places where his opinions come through (he's a lawyer through-and-through, after all), then backs up those sources with more sources. He talks us through laws on obscenity, women's rights, sodomy, abortion rights, and LGBTQ+ rights.
I devoured this book, and I didn't think I would. I figured some of it would be dull/outside my scope of interest. I was wrong. I also, shockingly, cried when I finished reading it last night. Why? Because we've taken so many steps backwards since this book was published 4 very long years ago. Stone was tentatively hopeful that we wouldn't land where we are today.
So get angry.
Get up.
Fight for your rights.
EAT THE RICH.
(I've decided all of my book reviews are going to end like this. Why? BECAUSE IT'S NECESSARY. AND YOU'RE NOT READING ANYWAY. AND THE FRENCH HAD IT RIGHT. AND I'M NOT YELLING YOU'RE YELLING).
Give it... a couple of years? For the wound of what happened yesterday to scab over.
...But what if it gets worse?
You know what? Eff it. Read this book. Right now. Get angry.
Sex and the Constitution, a book about our laws and how they've been interpreted to both oppress and liberate us, was published in early 2017.
That was before Kavanaugh.
That was before Coney Barrett.
That was before September 1, 2021, when Texas effectively banned all abortions.
Geoffrey Stone worked incredibly hard to pull together a book like this. One that begins in Ancient Greece and Rome, and then hovers over the 1970s - present day. He's here to tell us how we got where we're going; how fragile our rights are. He backs up his opinions in the few places where his opinions come through (he's a lawyer through-and-through, after all), then backs up those sources with more sources. He talks us through laws on obscenity, women's rights, sodomy, abortion rights, and LGBTQ+ rights.
I devoured this book, and I didn't think I would. I figured some of it would be dull/outside my scope of interest. I was wrong. I also, shockingly, cried when I finished reading it last night. Why? Because we've taken so many steps backwards since this book was published 4 very long years ago. Stone was tentatively hopeful that we wouldn't land where we are today.
So get angry.
Get up.
Fight for your rights.
EAT THE RICH.
(I've decided all of my book reviews are going to end like this. Why? BECAUSE IT'S NECESSARY. AND YOU'RE NOT READING ANYWAY. AND THE FRENCH HAD IT RIGHT. AND I'M NOT YELLING YOU'RE YELLING).
May 10, 2017
Having taught such Constitutional Law topics as contraception, abortion, homosexual status/relationships, and gay marriage, I found this book irresistible.
Stone's approach to the topic is to start with a bunch of history -- what sexual behaviors and rules were in the formative days of western culture. He starts with the Greeks and Romans, and then works his way up through early Christianity, the Middle Ages, the Reformation, and then the initial settling of the US by the early Puritans, Pilgrims & others. As you might expect, when religious "awakenings" occur at periodic intervals, they're accompanied by clamor for repressive laws against sexual behaviors & sexually explicit speech. What is said to have ALWAYS been the case or ALWAYS proscribed turns out not to have been so universal. Good case in point: no laws against abortion in the US until the 20th century, when the AMA joined forces with the religious folk in an effort to eliminate competition from midwives.
As you might expect, the prose is clear and direct, and the topics are logically organized. The entire book was a pleasure to read. One quibble: I wish he hadn't ended the book with the "victory" of gay marriage, but had gone on to discuss in a final chapter the subject of the legal treatment of transgender individuals. I realize he probably wanted to end it on a high note, but there's enough water under the bridge at this point on transgender rights to have elucidated those issues for the reader.
Stone's approach to the topic is to start with a bunch of history -- what sexual behaviors and rules were in the formative days of western culture. He starts with the Greeks and Romans, and then works his way up through early Christianity, the Middle Ages, the Reformation, and then the initial settling of the US by the early Puritans, Pilgrims & others. As you might expect, when religious "awakenings" occur at periodic intervals, they're accompanied by clamor for repressive laws against sexual behaviors & sexually explicit speech. What is said to have ALWAYS been the case or ALWAYS proscribed turns out not to have been so universal. Good case in point: no laws against abortion in the US until the 20th century, when the AMA joined forces with the religious folk in an effort to eliminate competition from midwives.
As you might expect, the prose is clear and direct, and the topics are logically organized. The entire book was a pleasure to read. One quibble: I wish he hadn't ended the book with the "victory" of gay marriage, but had gone on to discuss in a final chapter the subject of the legal treatment of transgender individuals. I realize he probably wanted to end it on a high note, but there's enough water under the bridge at this point on transgender rights to have elucidated those issues for the reader.
May 22, 2017
This is quite a good read considering how dry much of the subject matter could be in the wrong hands. The central reason to read this is found right at the beginning, though.
Much is now known about the early history of the U.S. and the framers of the constitution. The book makes a compelling argument that the early settlers were not the prudish Puritanical people we are often taught about in school. Their thoughts on sex, erotic materials, and even sodomy were much more lax.
It was only later, after the Second Great Awakening, that laws like the Comstock Act came into being. These laws were later overturned as unconstitutional, but more importantly, they were unconstitutional even from an originalist perspective. The Puritanism and Evangelical views that still pervade the country were not present at the time of the writing.
The later chapters are fine, but if you're interested in this book, you probably lived through much of it and paid attention to what was happening. Not much is added if this describes you.
Much is now known about the early history of the U.S. and the framers of the constitution. The book makes a compelling argument that the early settlers were not the prudish Puritanical people we are often taught about in school. Their thoughts on sex, erotic materials, and even sodomy were much more lax.
It was only later, after the Second Great Awakening, that laws like the Comstock Act came into being. These laws were later overturned as unconstitutional, but more importantly, they were unconstitutional even from an originalist perspective. The Puritanism and Evangelical views that still pervade the country were not present at the time of the writing.
The later chapters are fine, but if you're interested in this book, you probably lived through much of it and paid attention to what was happening. Not much is added if this describes you.
July 10, 2021
Really excellent overview of the topic. Starts with ancient mores, even goes into Pelegianism and Augustine (as it should) and continues all the way to modern times. Unfortunately, I learned basically nothing new due to my particular background. So if you have a background in the classics, patristic theology, an intermediate knowledge of the history of Protestantism and Catholicism, and you’ve also finished a law school level con law class, you’ll probably learn nothing from this text. However, I definitely recommend it to everyone else. Good overview of the rise of the culture wars especially. I did learn that Phyllis Schlafly was at least suggested to the president as a Supreme Court appointment. The horror.
Also I don’t know if it’s just the edition I listened to but it needs an afterward or update to include Bostock.
Also I don’t know if it’s just the edition I listened to but it needs an afterward or update to include Bostock.
February 19, 2023
Only partially read this book - basically just "Part II - Founders" which explained their spiritual/religious background/culture. What documents did they draw on when writing the Constitution, etc.
Very interesting, easy to read. Would be easy to pick up and learn more. . .
UPDATE - Feb 19, 2023: picked this book up again and read Part I and started Part IV. Gives an excellent historical background about the view on abortion, homosexuality, "obscenity", etc. Worthwhile read, no matter what sections you read.
Very interesting, easy to read. Would be easy to pick up and learn more. . .
UPDATE - Feb 19, 2023: picked this book up again and read Part I and started Part IV. Gives an excellent historical background about the view on abortion, homosexuality, "obscenity", etc. Worthwhile read, no matter what sections you read.
July 20, 2017
An enormous lot of content, much of which was new to me. Interesting to learn that most of the prohibitions of "obscenity", contraceptives, abortion, non-marital sex, etc., only date from the post-Civil War era, and were brought about by a combination of Protestant fundamentalism and the increasing political power of the Church of Rome. The author clearly favors the widening of individual freedom in all these areas, but does an excellent, straightforward discussion of all the important cases over the past sixty years.
December 15, 2024
"...we must have the courage and the integrity to challenge the accepted wisdom, and we must fully embrace our moral, legal, and constitutional responsibility to respect the rights of others."
I honestly think that it's the civic duty of everyone to arm themselves with information. Information and the ability to analyze both it and the past are perhaps our greatest weapons in a fight against ignorance. We're living in a time in our country where, for the most part, books like this are allowed to be published and we are allowed access to these materials. Ironically, Sex and the Constitution informs us of a large part of our history in which this book would not even be allowed to be published because of its "obscene" subject matter. There's very few excuses to stay uninformed in a country and time where ignorance both weaponized and not are some of the greatest threats to our liberty and where we are blessed with ease of access to information. It allows us to have the ability to analyze, form our own convictions and ideologies, and engage in meaningful discussion/debate no matter where you end up on the ideological spiderweb.
I bought this from Strand just because I happened to see it on the shelf and thought it would be a fun compilation/analysis of the legal history of sex and sex-related topics in regards to the Supreme Court. And I did get that towards the end! But, and possibly more importantly, I got a super insightful and thorough education on the rise of Judeo-Christian religions and consequential changing attitudes towards sex and its related subjects in Europe throughout its history extending to modern day America. This book strengthened and gave a truly deep nuance to a lot of my beliefs through with my analysis of the information that was presented (my copy is littered with annotations and writing in the margins).
Oddly enough, there's a lot of very funny moments in this book. The author seems to possess some level of sass in regards to things that he finds a bit ridiculous, and it pokes through his academic professionalism every now and then. I mention this because, with such serious and emotionally delicate topics in it, the moments of humor and brevity in celebratory moments for the queer community go a long way in keeping this book from hopelessness. One of my favorites personally was the moment wherein the book shares with us the story of the lawyer who defended Windsor in United States vs. Windsor, Robbie Kaplan, through her words at the Stonewall Inn after the victory.
There are lots of moments where I wish the book went into deeper analysis though — especially in regards to the racial plights and contributions of the different issues that it covers. It feels so incredibly necessary to me to acknowledge the amount of legislative discrimination faced by people of color throughout history in regards the book's topics. Yes, Sex and the Constitution sits at 540 pages (Goodreads says 700 but a good 160 pages of that are purely a works cited page). But I can't imagine that anyone willing to commit to that many pages would bemoan a couple more going further into a very important aspect the intersectionality of sex-related law. I also find myself wishing that certain parts were a little more brief. Towards the last 200 pages, a lot of the book felt as if it was repeating itself with information that we have already gone over instead of simply referencing. The organization of the book as well caused issues where we jump back and forth between points on a timeline in a way that starts to make it feel overly cyclical.
My problems with the book don't amount to anything in relation to its importance and what I learned from it. It's a long read and definitely one that would incur some difficulty for those who aren't very familiar with legal and highly formally academic language, but I highly encourage and recommend others to read this book and others like it.
I honestly think that it's the civic duty of everyone to arm themselves with information. Information and the ability to analyze both it and the past are perhaps our greatest weapons in a fight against ignorance. We're living in a time in our country where, for the most part, books like this are allowed to be published and we are allowed access to these materials. Ironically, Sex and the Constitution informs us of a large part of our history in which this book would not even be allowed to be published because of its "obscene" subject matter. There's very few excuses to stay uninformed in a country and time where ignorance both weaponized and not are some of the greatest threats to our liberty and where we are blessed with ease of access to information. It allows us to have the ability to analyze, form our own convictions and ideologies, and engage in meaningful discussion/debate no matter where you end up on the ideological spiderweb.
I bought this from Strand just because I happened to see it on the shelf and thought it would be a fun compilation/analysis of the legal history of sex and sex-related topics in regards to the Supreme Court. And I did get that towards the end! But, and possibly more importantly, I got a super insightful and thorough education on the rise of Judeo-Christian religions and consequential changing attitudes towards sex and its related subjects in Europe throughout its history extending to modern day America. This book strengthened and gave a truly deep nuance to a lot of my beliefs through with my analysis of the information that was presented (my copy is littered with annotations and writing in the margins).
Oddly enough, there's a lot of very funny moments in this book. The author seems to possess some level of sass in regards to things that he finds a bit ridiculous, and it pokes through his academic professionalism every now and then. I mention this because, with such serious and emotionally delicate topics in it, the moments of humor and brevity in celebratory moments for the queer community go a long way in keeping this book from hopelessness. One of my favorites personally was the moment wherein the book shares with us the story of the lawyer who defended Windsor in United States vs. Windsor, Robbie Kaplan, through her words at the Stonewall Inn after the victory.
There are lots of moments where I wish the book went into deeper analysis though — especially in regards to the racial plights and contributions of the different issues that it covers. It feels so incredibly necessary to me to acknowledge the amount of legislative discrimination faced by people of color throughout history in regards the book's topics. Yes, Sex and the Constitution sits at 540 pages (Goodreads says 700 but a good 160 pages of that are purely a works cited page). But I can't imagine that anyone willing to commit to that many pages would bemoan a couple more going further into a very important aspect the intersectionality of sex-related law. I also find myself wishing that certain parts were a little more brief. Towards the last 200 pages, a lot of the book felt as if it was repeating itself with information that we have already gone over instead of simply referencing. The organization of the book as well caused issues where we jump back and forth between points on a timeline in a way that starts to make it feel overly cyclical.
My problems with the book don't amount to anything in relation to its importance and what I learned from it. It's a long read and definitely one that would incur some difficulty for those who aren't very familiar with legal and highly formally academic language, but I highly encourage and recommend others to read this book and others like it.
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