PROL OGU E

W
e are inthe midst of a constitutional revolution. It is a revo-
lution that has tested the most fundamental values of the
American people and 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. It is a story that has never before been told in its
full sweep. And, best of all, it is about sex.
In the course of this struggle, American law has called into question
the constitutionality of a broad range of government regulations of sexual
behavior, including contraception, abortion, obscenity, and sodomy. As a
consequence, the United States 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 pro-
foundly divisive and important questions.
Not surprisingly, our social mores and our laws governing sexual behav-
ior 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 “Cul-
ture Wars”—over such issues as obscenity, contraception, abortion, sod-

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omy, 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. It
is, dare I say, a great story.
Sex and the Constitution proceeds in six parts, each of which explores a
pivotal era in the historical evolution of sexual mores and of American con-
stitutional law.

P art I, “Ancestors,” exploresthe history of sex, and especially

its relation to religion, from the ancient world through the Enlight-
enment. These chapters lay the foundation for our journey. We can under-
stand the present only if we know how and why we got here and only if
we understand that different cultures approach these questions quite differ-
ently. It would be a mistake to assume that our own attitudes toward sex,
sin, and the law are natural and inevitable.
“Ancestors” begins by exploring what the Greeks, the Romans, and the
ancient Hebrews thought about sex. In the pre-Christian world, these soci-
eties regarded most forms of sex as natural and properly pleasurable facets
of human life. None of these cultures regarded sex as inherently immoral,
sinful, or shameful.
Under the powerful influence of Augustine of Hippo at the turn of the
fifth century, however, early Christians forged a new understanding of sex
and its relation to sin. Over time, the Church came to condemn as “mor-
tal sins” masturbation, fornication, sodomy, and even intercourse in mar-
riage for any purpose other than procreation. Although the Reformation
brought with it new religious conceptions of sexuality, especially within
marriage, it also led to a successful campaign by Protestant reformers to
conscript the authority of the state to enforce their religious precepts about
sex, even against those who did not share their faith. The Enlightenment
then led to a deep skepticism about Christian doctrine, particularly in the
realm of sex. With a new focus on reason rather than faith, a culture of
freethinking took hold in some quarters, and by the middle of the eigh-
teenth century London came to be known as a mecca of sexuality. It was
against the background of this cultural and social milieu that the Ameri-
can nation was born.

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• • •

P art II, “Founders,” crossesthe Atlantic and examines the evo-

lution of sexual attitudes in the New World from the crossing of the
Mayflower to the framing of our Constitution. It explores the rigid sexual
attitudes of the Puritans, who believed that governments were instituted
to serve God’s commands and to restrain man’s sin. Over time, though,
the temptations of life’s pleasures and the bold new ideas of the Enlight-
enment gradually eclipsed the world of the Puritans, yielding a set of atti-
tudes about sex in the colonies that was surprisingly tolerant of sexual
freedom. This was, after all, a generation deeply committed to “the pur-
suit of happiness.”
What, though, are we to make of contemporary claims that the United
States was founded as “a Christian nation”? “Founders” explores this ques-
tion. Many of the Framers were skeptical of traditional Christianity, and
their fascination with deism and their commitment to creating a nation
dedicated to the separation of church and state belie the assertion that they
intended to establish a Christian nation. To the contrary, the United States
was conceived, not in an age of faith, but in an age of reason.
“Founders” next turns to the Constitution itself and to what the Fram-
ers thought to be “the fundamental maxims of free government.” Here,
we dig deeper into the founding generation’s understanding of the proper
relation between government and religion and explore the critical issue of
“unenumerated” rights. If the Constitution does not expressly guarantee a
right of sexual freedom, can the Supreme Court legitimately interpret the
Constitution to constrain the authority of government to forbid contra-
ception, abortion, sodomy, and same-sex marriage? Almost two centuries
later, the challenge of identifying such unenumerated constitutional rights
will become a critical pivot point in the judicial battles over constitutional
interpretation that have bitterly divided the justices of the Supreme Court.

P art III, “Moralists,” exploresthe resurgence of Protestant reli-

giosity in the United States between the beginning of the nineteenth
century and the mid-twentieth century. During this time, various social and
religious movements sought once again to enlist the law in a campaign to
impose sectarian religious values on society, especially in the realm of sex.
This part of the story begins with the explosion of religious zeal during
the Second Great Awakening in the early nineteenth century when a pow-

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erful evangelical movement sought to capture the authority of the state to

command observance of the Sabbath, outlaw blasphemy, and squelch sex-
ual expression and behavior. It was in this era that laws against obscenity
appeared for the first time in the United States.
Then, after the Civil War, Anthony Comstock burst upon the scene and
initiated a nationwide campaign to root out the “evils” of sexual expression.
Comstock’s late nineteenth-century crusade left a powerful legacy. Perva-
sive censorship at every level of government ensured that books, theater,
newspapers, magazines, and movies were purged of any hint of sexual con-
tent for most of the next century.
The moralists of this era did not limit themselves to issues of sexual
expression. Concepts of sin and sexual shame also played a central role in
their campaigns to outlaw contraception and abortion, which previously
had been legal. As one mid-nineteenth century zealot declared, if women
had access to contraception or abortion, what “would keep them chaste?”
As a result of such attitudes, laws dealing with contraception and abortion
became much more repressive over the course of the nineteenth century
than ever before in history.
“Moralists” also explores the history of homosexuality in the United
States from the founding through the mid-twentieth century. It was not
until the late nineteenth century that persons drawn to same-sex sex came
for the first time to be seen as having a distinctive psychological identity. In
a society in which the dominant religion deemed homosexuality a heinous
sin, the law branded homosexuals as criminals, and the medical profession
diagnosed homosexuals as “strange freaks of nature,” the vast majority of
individuals who harbored same-sex desires did their best to hide their secret
shame from family, friends, neighbors, and associates. Even the nation’s
most committed civil rights organizations in this era turned their backs on
homosexuals.

T he secondhalf of Sex and the Constitution turns to the process,

beginning in the late 1950s, through which judges, and especially
the justices of the Supreme Court, interpreted and applied the Consti-
tution to constrain the ability of religious conservatives to censor sexu-
ally-oriented expression, ban contraception and abortion, and persecute
homosexuals. It has been a long, sometimes halting, often bitterly divisive
process, as the guardians of our Constitution have gradually felt their
way forward in an effort to come to grips with complex issues of free
speech, equality, religion, individual liberty, and unenumerated rights

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in the politically charged and often emotionally fraught realm of sexual

freedom. The stakes have been high, both for the Court as an institution
and for the nation.

P art IV, “Judges: Sexual Expression,”traces the history of laws

regulating sexual expression from the 1950s to the present. Begin-
ning in the mid-1950s, the justices struggled with the vexing challenge of
defining “obscenity,” and with the question of whether obscenity, however
defined, is “speech” within the meaning of the First Amendment. The bat-
tle over the regulation of sexually-explicit expression eventually became a
central issue in the nation’s “Culture Wars,” as the newly emergent Chris-
tian Right damned such expression as a fundamental threat to the moral
decency of the nation.
Despite the concerted efforts of religious leaders, judges, politicians, and
presidents to stem the tide of sexually-explicit material, this was not to be.
The social changes unleashed in the 1960s, combined with the advent of
new communications technologies such as cable television and the Inter-
net, overwhelmed the capacity of the law to constrain sexual expression.
But although the Christian Right’s campaign to prevent consenting adults
from accessing sexual expression failed to win the day, its war on obscenity
helped energize a powerful religious and political movement that would vig-
orously combat the legal recognition of reproductive rights, women’s rights,
and gay rights. The creation of this powerful movement was an important
legacy of the failed crusade to stamp out obscenity.

P art V, “Judges: Reproductive Freedom,”addresses the

Supreme Court’s struggle to grapple with the issues of contraception
and abortion. This process ultimately led the Court to recognize a funda-
mental right of individuals to decide for themselves “whether to bear or
beget a child.” After first addressing the issue of contraception, the justices
then turned to the question of abortion. In Roe v. Wade, the Court plunged
into the “right to choose”/“right to life” controversy in a way that later
divided the nation, energized the Christian Right, reframed the contours of
American politics, and profoundly influenced the Supreme Court appoint-
ment and confirmation process.
In the years since Roe, religious leaders from the Catholic Church and
the evangelical community, including such figures as Jerry Falwell, Pat
Robertson, and Phyllis Schlafly, have played a critical role in the political

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and judicial battles over the regulation of abortion. The continuing con-
flict has seen calls for constitutional amendments to overrule Roe, violence
directed at abortion providers and clinics, legislative efforts to undermine
and circumvent the decision, and partisan efforts to appoint judges and jus-
tices at all levels of the federal judiciary who are committed either to sup-
porting or overruling Roe. To this day, the future of Roe remains uncertain.

P art VI, “Judges: Sexual Orientation,”returns to the issue

of homosexuality, but now in the realm of constitutional law. What,
if any, are the constitutional rights of homosexuals? Are they “freaks of
nature” and criminal degenerates, or are they a historically oppressed
group deserving of constitutional protection? Part VI traces the history of
gay rights movements, the fierce pushback from the Christian Right, the
ravages of the AIDS epidemic, the gradual evolution of public opinion
toward toleration of same-sex love, and the role of the Supreme Court as it
has cautiously recognized the fundamental constitutional rights of liberty,
dignity, and equality of gays and lesbians.
As an often furiously divided Supreme Court has wrestled with these
issues, it has struggled to distinguish between religious conceptions of sin
and morality, on the one hand, and constitutionally impermissible animus,
on the other. The divide within the Court over these issues has been partic-
ularly fierce, as one group of justices tries to give meaning to constitutional
concepts like equality and dignity, while the other accuses them of capit-
ulating to political correctness and the “homosexual agenda.” On issues
ranging from sodomy prosecutions to discrimination against gays and lesbi-
ans to same-sex marriage, the Court has once again placed itself at the very
center of constitutional controversy.

S ex and the Constitution tells the vital story of our nation’s ongoing
struggle to reconcile centuries-old religious beliefs with evolving con-
ceptions of individual liberty, personal privacy, and human equality. It illu-
minates the Supreme Court’s quest to find sound answers in the often vague
words of our eighteenth-century Constitution to complex and often highly
emotional social, political, moral, and legal questions that have been with us
from the beginning. And it traces the fundamental way in which our nation
evolves with changing circumstances, values, mores, and understandings.

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