Geoffrey R. Stone

​​​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 would​​n'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 ​mention​s​ or prohibition​s​ of sex​ual practices​ in the Constitution. ​To ​examine the background​ of rules governing "normal" sexual behaviors​, ​Mr. Stone take​s 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-se​​x 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 ​w​ere 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 ​no​​t ​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 actor​s​ in this movement, and politicized the ideas of Victorian morality. Under his influence, the Comstock Act was passed during the Grant Administration, and outlaw​ing 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, sex​ual​ 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. I​t's i​nteresting 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) ​​oppose​d​ 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​.… (meer)