An­nette Gordon-Reed

The New York Review of Books - - Contents - An­nette Gordon-Reed

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

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