'Sex and the Constitution': A Review

Sex and the Constitution: Sex, Religion and Law From America's Origins to the Twenty-First Century, by Geoffrey R. Stone; Liveright Publishing Corp., 500 Fifth Avenue, New York, NY 10110; 669 pgs. including end notes; $35 list price. There are only a few books that are "must-haves" for the library of any progressive person who's interested in how sex and related topics are treated in the United States. The first is America's War on Sex by Dr. Marty Klein, which deals with the ongoing "war" between conservative religious activists, modern sex-positive culture and the adult industry. The other is Girls Lean Back Everywhere by Edward de Grazia, which traces the development of obscenity law in the U.S. from its beginnings in the late 1800s with the persecution of James Joyce's Ulysses through the 1990 Cincinnati Mapplethorpe bust and conservatives' attempts to defund arts considered (by them) to be too risqué. But now there's a new mandatory read for sex-positive activists: Attorney Geoffrey Stone's examination of how secular law has been subverted over the centuries by religious activists to create the "sex crimes" of publishing/selling/transporting/reading erotic literature and films, being and/or patronizing a sex worker; prescribing and/or providing contraception or abortion services; having sex with and/or marrying the "wrong person"; and more. The value of Stone's work is easily seen from the beginnings of the first chapter, where Stone states, "Perhaps surprisingly, the pre-Christian world generally thought of sex as a natural and positive part of the human experience. It did not see sex as predominantly bound up with questions of sin, shame, or religion." He follows that statement with examples from Greek culture as early as 500 B.C., where "eros was a primal force which permeated all facets of life." This included Aphrodite's priestesses frequently having sex with strangers "as a form of worship"; Greek architecture, vases and terra-cottas featuring "explicit scenes of vaginal and anal intercourse, masturbation, and fellatio"; and Greek playwrights dealing easily with such subjects as "masturbation, fellatio and male-male anal sex," and women masturbating by hand or by use of primitive sex toys. The Greeks even had their own forms of birth control, and practiced abortion "as long as it occurred prior to quickening"—a position supported, interestingly enough, even by the Catholic Church until fairly recently. In fact, before the Christians came along, western culture generally considered sex in most of its manifestations as close to divinity. Even the early Romans, who had little love for the Greeks, used phalluses in religious iconography and even jewelry, and Stone reports that "Prostitution also flourished in Rome," and that "there were as many as thirty-four brothels in Pompeii" alone, or about one for every 300 inhabitants. Skipping forward a few centuries to the Middle Ages, Stone reports that, "It was in this setting that the Church implanted in Western culture its judgments about sex and sin. Sexual desire gradually became linked to guilt, humiliation, failure and shame," and Stone goes into much detail regarding the Church's thoughts on all subjects sexual, including masturbation, sex outside of marriage, homosexuality, etc.—but still, secular law took little notice until the late 13th century, when "Criminal statutes against same-sex sex were suddenly enacted throughout Europe," thanks to Church-spread rumors that "same-sex sexual conduct was rampant." Roughly two centuries later, during the Reformation, Martin Luther "encouraged the state to prohibit and punish prostitution, fornication, adultery and other sexual immoralities, explaining that if the State 'wishes to be Christian' it should punish such behavior in order to maintain an orderly society." Guess what? Over time, that's exactly what governments did! And it was in part due to religious repression, sexual and otherwise, that Europeans took their lives in their hands to cross the Atlantic and colonize the "New World"—and guess what? Aside from the Puritans, who largely remained in Massachusetts, the colonists were a fairly randy bunch. "[C]olonial bookstores in the eighteenth century contained an 'amazing variety of erotica,'" Stone reports, adding that "Americans could find pretty much whatever they wanted. Cultural and political leaders like Thomas Jefferson and Benjamin Franklin collected many of these works. Jefferson counted among his library Boccaccio's The Decameron, several bawdy Restoration plays, and Charles Johnstone's Chrystal, which portrayed vivid scenes of sexuality, lust, and sexual scandal ... In a less literary vein, a broad range of bawdy humor was sold by hawkers throughout the colonies, and sexually-explicit anti-papist tracts were especially popular ... There were no prosecutions for obscenity during the entire colonial era... The first true obscenity prosecution in the United States did not occur until well into the nineteenth century. Throughout the colonial era, the distribution, exhibition, and possession of pornographic material was not thought to be any of the state's business." Of course, not everyone thought this way, and early in the 19th century, the country experienced a religiously-based "Second Great Awakening," which pushed religious views on sexuality onto many state law books—but one phrase that Stone mentions several times in regard to the fledgling Americans' sexual rights is "pursuit of Happiness," which those who are familiar with their Declaration of Independence will recall is part of the phrase "all men ... are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness." Without actually stating it outright, Stone definitely implies that the use of the word "happiness" in that phrase was meant to refer to Americans' right to pursue sexual intercourse! Take that, Jefferson Beauregard Sessions III! It's impossible for this review to catalog all of the excellent points Stone makes about the "war on sex" that's even now taking place in this country, even though he does go into great detail regarding the 1873 Comstock Act, which prohibited the mailing of "obscene literature," of which birth control information was considered a part; the persecution of sex researcher Alfred Kinsey; the Supreme Court's decision in Miller v. California regarding obscenity; the high court's FCC v. Pacifica Foundation "seven filthy words" and Barnes v. Glen Theatre nude dancing cases; the persecution of adult entrepreneur Reuben Sturman; the Extreme Associates case; and many, many more—and that's just the sections on sexual speech! He gives equally incisive dissections of the cultural and legal issues surrounding religious conservatives' fight against the legalization of contraception, abortion, gay rights and same-sex marriage. In short, Sex and the Constitution belongs on the bookshelf of every person who's even the least bit interested in how sex has been treated by American laws, and the impacts of religion on that treatment.