I am especially pleased that my friend Eugene Volokh has invited me to write a series of five pieces about the book for the Volokh Conspiracy. Each of these pieces will consist of edited excerpts from the book. This, the first of those pieces, is drawn primarily from the prologue and the epilogue in order to give readers an overall sense of the work. The four subsequent pieces, which will appear each day this week, will focus on representative moments in the vast sweep of history explored in “Sex and the Constitution.” I hope you will find them interesting and illuminating.
We are in the midst of a constitutional revolution. It is a revolution that tests the most fundamental values of the American people and that has shaken constitutional law to its roots. It has bitterly divided citizens, politicians and judges. It is a battle that has dominated politics, inflamed religious passions, and challenged Americans to rethink and reexamine their positions on issues they once thought settled.
In the course of this struggle, American law has called into question the constitutionality of a broad range of government regulations of sexually-related behavior, including contraception, abortion, obscenity, sodomy and marriage. As a consequence, the Supreme Court has found itself confronting fundamental questions about the nature of sexual freedom, the meaning of liberty, equality and privacy, the legitimacy of government efforts to dictate sexual morality and the appropriate role of religion in public life. “Sex and the Constitution” explores the remarkable process through which Americans, and especially the justices of our Supreme Court, have navigated these profoundly divisive and important questions.
Not surprisingly, our social mores and our laws governing sexual behavior are deeply bound up with religious beliefs and traditions. A central theme of “Sex and the Constitution” is that American attitudes about sex have been shaped over the centuries by religious beliefs — more particularly, by early Christian beliefs — about sex, sin and shame. A nettlesome question in constitutional law is how courts should cope with that history in a nation committed to the separation of church and state.
It is a bit of a puzzle that constitutional law has come to play such a central role in shaping our debates over these questions. Nothing in our Constitution expressly guarantees a right to sexual freedom. Supreme Court justices from almost any prior era in American history would be stunned to learn of the role the Supreme Court and our Constitution have come to play in our contemporary disputes — some call them “culture wars” — over such issues as obscenity, contraception, abortion, sodomy and same-sex marriage. The constitutional revolution we are now witnessing is the consequence of a long, complex and fascinating history. It is a history shaped over the centuries by such diverse and antagonistic voices as Saint Augustine, Thomas Aquinas, Voltaire, Thomas Jefferson, Anthony Comstock, Margaret Sanger, Alfred Kinsey, Harry Blackmun, Jesse Helms, Phyllis Schlafly and Anthony Kennedy, to name just a few.
Over the grand sweep of history, social, religious and legal attitudes toward sex have shifted dramatically. These shifts have not been in any one direction. Rather, they have swung back and forth, depending on a range of influences and circumstances. Whereas the Greeks and the Romans did not attach any religious significance to sex, the early Christians came to view sex as inherently sinful. For more than a millennium, the church imposed its beliefs about sex on the faithful, but left those who did not share the faith to their own destinies.
This began to change in the late Middle Ages, as first the church and then Protestant reformers turned increasingly to the secular law to require all people to confirm their behavior to the dictates of the dominant religion. As time passed, enlightenment thinkers came to reject many of the dogmas of traditional Christianity and, more broadly, the assumption that the dominant religion can legitimately conscript the power of the state to impose its own notions of sin on others. This view shaped the understandings of the framers of our Constitution and led ultimately to the principle of separation of church and state.
At the time the Constitution was adopted, there were no laws in the United States forbidding sexual expression, contraception, or pre-quickening abortion, and the long-standing laws against consensual sodomy were rarely, if ever, enforced. This was a reflection of the core values of the enlightenment that both inspired and informed the founding of the American republic.
But then, with the Second Great Awakening, the religious moralism of the Victorian era, and impact of the social purity movement, religious forces throughout the 19th century imposed harsh new restraints on sexual expression, contraception, abortion and homosexuality. Religious leaders unabashedly invoked the Bible as justification for secular laws that sharply restrained the freedom of individuals. As the decades passed, though, social movements demanding a more robust freedom of expression, the right of women to control their own reproductive destinies, and the dignity and equality of gay men and lesbians gradually gained steam. These social movements insisted that the laws they now challenged were incompatible with the most fundamental guarantees of the American Constitution.
“Sex and the Constitution” tells this story.