Sex and the Constitution: Sex, Religion, and Law from America’s Origins to the Twenty-First Century by Geoffrey R. Stone. Liveright, 668 pp., $35.00
In early spring, reports began to appear in the international press that authorities in Chechnya were rounding up and detaining gay men. Tales of torture, starvation, and murder soon emerged after some of the men were released and described their ordeals in captivity. According to one survivor, officials had instructed the families of captives to act preemptively and kill their gay sons, telling parents, “Either you do it or we will.” The Russian-backed government of this predominantly Muslim region declared the crackdown fake news, while Chechen leader Ramzan Kadyrov issued a flat denial. (Gathering and detaining gay men was impossible, Kadyrov insisted, because there were “no gay men in Chechnya.”) As shocking as the Chechen campaign appears, it is nothing humans have not seen, or done, before. Ethnic groups, religious or racial minorities, and individuals who are different in some way have far too often become the objects of hatred and murderous intent. What is happening in Chechnya most immediately brings to mind the depredations of the Third Reich, which sought to rid Europe of Jews, Gypsies, gays, and others considered to be undesirables.
Even with knowledge of the human propensity to oppress fellow human beings, most readers would find the news of a violent repression of gays in 2017 particularly shocking. We in the United States, and some other countries in the West, have just experienced one of the quickest turnabouts in attitudes toward a disfavored minority in modern history. After Stonewall in 1969 and the AIDS crisis of the 1980s, the pace of the movement for LBGTQ rights in the United States accelerated swiftly, much more swiftly than similar movements for blacks and women. The pollster Nate Silver, who is gay himself and has studied attitudes about gay rights over time, put it this way:
In the United States, gay marriage has gone from unthinkable to the law of the land in just a couple of decades. Homosexuality has gone from “the love that dare not speak its name”—something that could get you locked up, beat up, ostracized or killed, as is still the case in much of the world—into something that’s out-and-proud, so to speak.
Of course, terrible things still happen to gays in the West. Prejudices have not entirely disappeared. The specter of change, which forces people to reassess sometimes deeply held beliefs, often causes violent reactions.
Whether or not the success of the gay rights movement in Western countries provoked the barbarity in Chechnya, this social revolution has had an interesting consequence in the West itself: those who continue to maintain that same-sex activity is wrong are today subjected to the searching scrutiny— albeit without the same level of accompanying moral outrage—that was applied in previous centuries to those who condoned homosexuality. The change has been fascinating to watch, and as so often happens after the end of a long battle fought for dubious reasons, a question arises after the smoke has cleared: What was that all about, anyway?
Why the visceral hatred of the idea of men having sex with men, and women having sex with women? Why would the hostility be so strong that in Great Britain until the mid-nineteenth century, in the early American colonies, and in Chechnya in 2017, death would be considered a suitable punishment for those who engaged in this activity? Beyond homosexuality, what interest did (and do) people living in a supposedly secular and liberal society have in regulating perhaps the most intimate aspect of an adult’s life—consensual sexual behavior with another adult? How do people decide which sexual acts, conducted in private, have a public impact and, therefore, become the public’s business? For our purposes, why do Americans think as we do about sex, and how have we used the Constitution, and the laws of the fifty states, to instantiate those beliefs? In his deeply researched new book, Sex and the Constitution: Sex, Religion, and Law from America’s Origins to the Twenty-First Century, Geoffrey R. Stone gives his answer to these and other questions about our country’s regulation of sex, with a special emphasis on same-sex activity. According to Stone, a scholar of constitutional law at the University of Chicago, Christianity has exerted the biggest influence on how we have addressed the issue from colonial times to today. The “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.”
This history, Stone argues, has created “a nettlesome question” for the practice of constitutional law. Over the years, courts have accepted Christian traditions on matters relating to sex despite our nation’s commitment to the separation of church and state. When confronted with cases regarding restrictions on sexual behavior, or activities related to sexual behavior like contraception, abortion, or consuming pornography, judges have had to dress up in secular garb what were essentially religious principles. They did this by distinguishing between the “moral views” they said they drew on and the “religious views” they claimed they did not. Writing confidently and expertly about several centuries of American laws regulating sex, Stone shows that the line between moral and religious reasoning was almost always illusory. For much of our history, legislators and judges drew on religious beliefs to decide what was moral and right for all citizens—and what ought to be legal or illegal. Christianity, as the country’s dominant religion, provided an obvious source of moral doctrine. These ideas are so deeply embedded in our culture, Stone believes, that to truly understand American attitudes about sex we have to go back to the very beginning of the Christian religion itself:
For more than two centuries, Americans have fought divisive social, political, and constitutional battles over laws regulating sex, obscenity, contraception, abortion, homosexuality, and same-sex marriage. These conflicts have been divisive in no small part because of the central role religion has played in shaping our laws governing sex. As the Framers of our Constitution anticipated, the incorporation of religious beliefs into the secular law inevitably poses fundamental questions about individual freedom, the separation of church and state, and the meaning of our Constitution. To understand the roots of these conflicts, it is helpful to have some sense of the ways in which different societies addressed these issues in the past and how our own attitudes toward sex came into being. How did social, cultural, religious, and legal views of sex evolve from the ancient world to the founding of the American republic?
To answer this last question Stone set himself an extremely ambitious project. In a brief survey of sexual attitudes in the ancient world, he blames the early Christians for having taken all the fun out of sex. In pre-Christian times sex was considered “a natural and positive part of human experience” and not “predominantly bound up with questions of sin, shame, or religion.” He echoes previous scholars in finding that “classical Greek morality and law focused not on sexual sin, but on whether an individual’s conduct was harmful to others.” Stone quotes Arno Karlen’s claim that the early Romans thought the Greeks “cunning, effeminate, and degenerate,” while noting that they themselves were, in their own way, generally relaxed about sexuality. Indeed, they were so relaxed that “early Christian writers . . . attributed the fall of Rome in the fifth century AD to sexual depravity.”
That erroneous assumption lived on into modern times, and the ancient Romans’ blasé attitude toward same-sex activity in particular has been offered routinely as a cautionary tale for our own society. Even the ancient Hebrews, Stone suggests, were more freewheeling than the pietistic early Christians:
The Hebrew Bible contains no condemnation of sexual pleasure, “no
paeans to celibacy,” and no suggestion that the sin of Adam and Eve was sex, rather than disobedience of God. Like the ancient Greeks and Romans, the ancient Hebrews did not prohibit masturbation, premarital sex, oral or anal sex, prostitution, contraception, pornography, lesbianism, or abortion.
In truth, in Christian Bibles, both the sex-affirming parts, such as the Song of Solomon and Proverbs, and the condemnations of certain sexual practices that can be found in the Epistles of Paul, derive from the Hebrew Scriptures. One must consider the ways that religious practices and interpretations of texts diverge from the texts themselves— divergences that exist in every religion. What, for example, of Onan and Sodom and Gomorrah and the passages in Leviticus that condemn male same-sex activity? Stone convincingly invokes a wide range of scholarship to demonstrate that the stories of Onan (from which came the use of the word “onanism” to mean masturbation) and Sodom and Gomorrah have been distorted in order to condemn masturbation and sodomy.
Stone’s handling of the passages in Leviticus— “If a man also lie with mankind, as he lieth with a woman, both of them have committed an abomination: they shall surely be put to death”—is weaker. Essentially, Stone argues, the ancient Hebrews didn’t really mean it. The language was just put there in opposition to “the then-prevalent Greek practice of paederasty” and “shouldn’t be taken too seriously.” Well, why not? The language, unlike many passages in religious texts, is remarkably clear and to the point. And what did the ancient Hebrews have against pederasty? Why would it be wrong for adult males to have sex with teenage boys and fine for them to have sex with teenage girls, unless there was some underlying cultural hostility toward male same-sex activity?
The problem is that it is very difficult to speak of the “early Christians” or the “ancient Hebrews” as if these terms describe fixed, monolithic groups. There were, within both religions, sects that had their own practices and their own, often competing, interpretations of religious texts. Some of those interpretations and practices live on in the shadow of more generally accepted views—even into modern times. A man of the Enlightenment, like Thomas Jefferson, for example, living on a mountaintop in eighteenth-century Virginia, could call himself a follower of Jesus and a “primitive Christian” in contravention of the most common understandings about Christianity. Jefferson looked to the ancient Christian faith for his own unorthodox religious views, which concentrated on the beauty of Jesus’s teachings while denying his divinity and capacity to perform supernatural feats. The historian Peter Brown has written of a sect of early Hebrews—in pre-Christian times—who did, in fact, practice celibacy and evidently influenced Jesus and his disciples:
When Jesus of Nazareth preached in Galilee and Judaea after 30 AD, the options open to him and his followers were already clearly mapped out on the landscape of Palestine. Toward the Dead Sea, the wilderness of Judaea harbored sizable settlements of disaffected males. Ascetic figures whose prophetic calling had long been associated, in Jewish folklore, with sexual abstinence, continued to emerge from the desert to preach repentance to the nearby cities. One such, John the Baptist, was reputedly a cousin of Jesus. The fact that Jesus himself had not married by the age of thirty occasioned no comment. It was almost a century before any of his followers claimed to base their own celibacy on his example. At the time, the prophetic role of Jesus held the center of attention, not his continence. His celibacy was an unremarkable adjunct of his prophet’s calling.*
The early Christians did not think up religiously inspired sexual continence all by themselves. The odds that any people adopting new traditions would do so without reference to stories, beliefs, and practices that already existed around them are decidedly slim.
What the early Christians did have was a set of highly effective salesmen for their beliefs, beginning with Saul of Tarsus, later Saint Paul the Apostle, who, a number of theologians believe, brought to Christianity many of the beliefs about women and sex that he had learned from the Judaism he left behind. But it was Saint Augustine, Stone argues, “who crystallized the early Christian understanding of sex and who, in so doing, ultimately helped shape traditional American views of sexuality more than a millennium later.”
Augustine’s story is well known. After a youth of debauchery, he experienced a conversion and used his scholarly influence to preach the gospel of sex’s inherent evil. Fixating on Adam and Eve, he turned aside the Hebrew notion that the story of the pair’s fall and expulsion from the Garden of Eden was about disobedience. It was instead a cautionary tale about sex. Stone explains Augustine’s view as follows:
*Peter Brown, The Body and Society: Men, Women, and Sexual Renunciation in Early Christianity (Columbia University Press, 2008), pp. 40–41. Every sexual act is born out of evil, and every child born out of evil is born into sin. It is through sex that man passes on sin from one generation to the next.
Even marriage was not enough to cure the evil. Under the influence of Augustine’s teachings, couples were cautioned that marital relations were for procreation only, not for pleasure. Augustine’s view triumphed over other competing, less baleful views of human nature and sexuality.
If Stone holds Augustine responsible for promoting the idea of sex as an evil force, he presents Saint Thomas Aquinas as “the man most responsible for the hardening of the Church’s attitude toward same-sex sex.” Aquinas “systematized and expanded upon Augustine’s thinking.” His Summa Theologica (1265–1275) “rewrote the whole of Christian moral theology” and pronounced same-sex activity, which could not be for procreation, “especially contemptible in the sight of God.” Aquinas distinguished sinful acts carried out by opposite-sex couples from the sexual activity of same-sex couples. The latter activity was per se the “more grievous sin.” The church conferred formal authority on Aquinas’s views on these and other matters at the Council of Trent in 1563.
Stone’s suggestion that there is a direct line to be drawn from these ancient and medieval teachings to modern American attitudes is greatly complicated by his own research and erudite presentation. As a current example, consider contraception. Stone ends an excellent chapter on the subject with a section entitled “Sanger’s Triumph,” suggesting that Margaret Sanger, the famous proponent of birth control, has won the battle. Almost unbelievably, there is still cause for concern on this front. One would have thought that Griswold v. Connecticut (1965)—the landmark case that upheld a couple’s right to use contraception—and its successors would have settled the matter. Yet as the recent fights over the Affordable Care Act show, the issue is not settled for some segments of the population. Many who continue to oppose birth control on religious grounds were adamantly opposed to the ACA’s requirement that employers cover contraception for female employees.
Stone’s survey of the history of sex in Europe up to colonial times in America presents a world in which the teachings of Augustine and Aquinas were contested and defeated in some eras, only to rise again in other forms and be defeated again. What are we to make of those long stretches, described with great skill in this book, when people on both sides of the Atlantic were not listening to Augustine and Aquinas, and in fact soundly rejected the ideas they espoused? What of Martin Luther, who with Protestantism brought a different dispensation?
Luther believed (as did the American Puritans, by the way) that sex was a normal and joyous part of life for married couples. The mutual pleasure it brought existed to bind husband and wife to each other. For Luther it was celibacy that was devilish, while sex was as “necessary to the nature of man as eating and drinking.” If the early
Christians had especially dire views on these matters, then Protestantism, which has been the dominant religious tradition in America from the beginning, rejected those views.
Sex and the Constitution is most persuasive when Stone turns to America, and his comprehensive knowledge of constitutional law is put on full display. He is especially good on the eighteenth century, bringing a bracing and much-needed dose of reality about the Founders’ views of sexuality. No prudes were they:
At the time when Americans adopted their Constitution, a time when they fervently believed in “the pursuit of happiness,” there were no laws in the United States against obscenity, there were no laws restricting the use of contraceptives, there were no laws forbidding the dissemination of information about contraception, and, following the English common law, there were no laws restricting abortion pre-quickening. Moreover, although there were still laws on the books against consensual sodomy, those laws had not been enforced anywhere in the United States for almost a century. That was the world of the Framers.
The Second Great Awakening, from the 1790s to the 1840s, effectively ended this situation. According to Stone, it set off a “nationwide campaign to transform American law and politics through the lens of evangelical Christianity. Indeed, it was in this era that the claim that the United States is a ‘Christian nation’ first took root.” In Stone’s discussion of the early nineteenth century, readers can begin to discern an American religious identity that is almost totally familiar. Legislators, egged on by their constituents, looked to Christian teachings to assess the issues of the day. Prosecutions for blasphemy, which had fallen into desuetude, “suddenly reemerged.” Some argued that the common law was divinely inspired, thus making law (and government) the vehicle for transmitting and maintaining religious values. The first laws seeking to control the dissemination of “obscene literature” were also enacted during this period.
Curiously, Stone pays scant attention to perhaps the most consequential issue for many of the nineteenth-century moralists—their crusade against slavery, in which sex figured prominently. The widespread southern practice of concubinage was one of the principal targets of their brief against the institution. Stone’s decidedly northern emphasis leaves the sexual habits and preoccupations of the South largely out of the picture. Sex and the Constitution has almost nothing to say about the topic of interracial sex, although outlawing it was one of the earliest examples of the regulation of sexuality in North America. Those laws almost certainly affected more people than prohibitions of same-sex sodomy, and it was to them that courts and activists looked for analogy during debates about gay rights. So-called antimiscegenation laws grew out of and helped cement racial attitudes that have affected the course of American law and history for centuries. The 1967 Supreme Court case that struck down these laws, Loving v. Virginia, is mentioned only in passing. Stone’s neglect of this history probably grows out of his determination to see religion as the driving force shaping sexual attitudes. While opponents of interracial sex often tried to justify their views by citing the Bible, those efforts come across, at best, as lame covers for white supremacy.
This raises an important issue. If you believe that the religious views espoused by the early Christians were divinely inspired, that God set these notions forth, then there are no more questions to ask about them. If you think, however, that religious rules likely grew out of extrareligious concerns (such as the desire for racial purity), then you must try to understand what some of those concerns were and from whence they came.
One of the tortures described by the Chechen men who were detained earlier this year was that their tormentors, in addition to subjecting them to beating, starving, and electrical shocks, called them by women’s names. This in fact is another example of a way of thinking that is pervasive in the regulations described in Sex and the Constitution: nearly all—if not all—of them, in one way or another, implicate the status of women in society and give evidence of the recurrent misogyny in views about sex that has been present and powerful throughout history and across cultures. Consider the swinging Greeks and Romans. They had no problem with same-sex activity, but the participants were not viewed equally. The receptive partner during anal or oral sex was cast in that most dreaded role: woman. That was fine for a boy before he reached manhood. It was not so great for an adult to have his manhood taken from him by being made to resemble the inferior female. Even during the most sexually open periods described in Stone’s book, women were judged by a different standard than men. They were given less freedom and suffered for their participation in sex even in cultures that were supposedly sexually progressive.
Many of the regulations described in Sex and the Constitution could be found in places and among people who had never heard of—or certainly can’t be said to have been affected by—the early Christians, Augustine, or Aquinas. This suggests that we may have to look beyond the influence of any one religion to understand how and why we have set the rules of sex by which we have lived. What does it mean to be a man? What does it mean to be a woman? These are questions humans have struggled to answer, probably from the beginning of human history. Religion is only one way we have attempted to establish answers to them. Engaging with other possible influences more fully—specifically efforts throughout history to control women and perpetuate negative attitudes about womanhood—would have made Stone’s very important book longer, but it would have brought a needed perspective to his analysis.
Supreme Court Justice Ruth Bader Ginsburg officiating at the wedding of David Hagedorn and Michael Widomski, Washington, D.C., 2013
Michael Pacher: The Devil Presenting St. Augustine with the Book of Vices, circa 1480