SEX AND RELIGION: UNHOLY BEDFELLOWS.

• Author: Papandrea, Mary-Rose
• Position: Book review

SEX AND THE CONSTITUTION: SEX, RELIGION, AND LAW FROM AMERICA'S ORIGINS TO THE TWENTY-FIRST CENTURY. By Geoffrey R. Stone. New York and London: Liveright Publishing Corporation. 2017. Pp. xxxii, 529. $35.

INTRODUCTION

In a lecture delivered in 2008, University of Chicago professor Geoffrey Stone (1) confessed to the audience that he had been working on a book tentatively titled "Sexing the Constitution," a project of "reckless ambition." (2) Almost ten years later, the book has hit the stands, renamed Sex and the Constitution: Sex, Religion, and Law from America's Origins to the Twenty-First Century, at a time when debates about sex and religion are more heated than ever. Beginning with a survey of law and sexuality in Greek and Roman times, the book ends with an analysis of the Supreme Court's same-sex marriage decisions and their aftermath. The breadth of the work is staggering.

Stone covers so much territory in this book, including (but definitely not limited to) Saint Augustine's role in the evolution of Christianity's views on sexuality and sin; Anthony Comstock's role in the widespread passage of repressive laws banning pornography, birth control, and abortion; the limited role Roe v. Wade (3) actually played in fermenting the rise of the pro-life movement; the history of the gay rights movement in the United States; the dramatic increase in public toleration for same-sex relationships and marriages; changes in communications technology that have undermined efforts to control explicit sexual images; methods of constitutional interpretation--the list goes on and on. Any of these topics could be--and have been--the subject of their own books. In the final analysis, though, Stone's primary thesis becomes clear: religious groups and individuals have, at various times throughout Western history, used the secular law to foist their beliefs upon nonbelievers.

Stone suggests that he disapproves of this religious influence in the law, but he wisely recognizes the limits of any argument that this influence is unconstitutional. The Supreme Court has never struck down a law because religious groups and individuals have advocated for the law on religious grounds, and Stone contends that to do so would violate both the Free Exercise and the Freedom of Speech Clauses of the First Amendment. He argues that courts should--and do--consider whether there is any justification for a law aside from religious reasons, and some laws will fail under this inquiry. But he recognizes that the universe of such cases is very small. His most ambitious argument is that laws that are based on "morality" alone are unconstitutional "[b]ecause of the clear religious overtones implicit in such 'moral' justifications" (p. 331). But this leaves open the possibility that laws will survive constitutional scrutiny as long as the government can come up with some other justification.

A second, much less developed theme that emerges from the history Stone shares with us is that many of the laws discussed in the book reflect anxiety and apprehension about the appropriate gender roles of men and women. Many organized religions, especially those that are most active and influential in our political debates, reflect rigid views of sexuality and gender. This suggests that rather than attack sex-related laws as attempts by religious groups to foist their beliefs on secular society--an endeavor Stone himself recognizes is largely doomed to failure--it may be more productive to attack these rigid conceptions of gender roles directly through equal protection challenges. Although this approach will not necessarily lead to the results that progressives desire in every case, it is more promising as a practical matter.

Part I of this Review focuses on Stone's attempt to correct some common misunderstandings regarding the history of laws relating to sex. Stone's focus on history naturally raises the larger issue of what role history should play in interpreting the Constitution. This Part focuses specifically on some unresolved questions regarding the proper role of history in the Court's freedom-of-expression jurisprudence. Part II turns to Stone's examination of the role that religion and religious organizations have played in the political process and sometimes the judicial process. Part III argues that Stone's history of laws relating to sex reflects anxiety about the proper roles of men and women in society and supports a more robust role for the Equal Protection Clause as a means of attacking laws relating to sex.

1. THE ROLE OF HISTORY

   The first half of Stone's book focuses on the history of laws relating to sex centuries before the Supreme Court issued a single decision in this area. Very readable and endlessly fascinating, Stone's historical work is a treasure trove of information for any scholar, law student, or interested citizen wondering how we got where we are today.

   In addition to the pure educational value of this history, the most obvious reason a constitutional law scholar would dive into the history of sex-related laws is that this history is arguably relevant for interpreting the Constitution. And as Stone has said elsewhere, if that history is going to matter, we should get that history correct. (4) Stone's book points out various historical errors the Court has made, while also making the case for a more expansive view of fundamental liberties that does not rest on the identification of narrowly defined traditions for support.

   Because Stone's book sweeps broadly to include a discussion about laws restricting the freedom of expression, his history covers laws restricting obscenity, child pornography, profanity, and nudity. While Stone does argue that there is no relevant historical tradition prohibiting sexually explicit speech, Stone does not specifically address what role history should play, if any, in interpreting the First Amendment. To date, the Court has not been clear what role history should play in determining the scope of the First Amendment. Frequently, the Court has ignored or discounted history and has instead relied more heavily on various theories that justify protections for speech and expressive activities. In recent decisions, however, history has played a greater role. If this trend continues, the Court's First Amendment jurisprudence could change dramatically.

   1. Correcting History

      Debates about the role of history with respect to substantive due process and, to a lesser extent, equal protection, have played a significant role in the Court's decisions and in the scholarly literature. Even the Court's progressives have frequently said that history is a starting point for constitutional interpretation, even if it is not determinative. (5) One of the goals of Stone's book is to set us all straight on the history of laws relating to sex.

      In the case of sex-related laws, the relevant history helps progressives in some instances but not others. In many instances, the usefulness depends on whether the relevant history is the time of the nation's founding or when the Fourteenth Amendment was ratified. For example, as Justice Blackmun recognized in his summary of the history of abortion laws in Roe v. Wade, restrictions on abortion, at least before "quickening," did not exist at the founding; (6) in dissent, Justice Rehnquist pointed out that the majority of states did have laws against abortion when the Fourteenth Amendment was ratified. (7) Although the Court did not discuss the history of laws banning contraception in Griswold v. Connecticut, (8) Stone points out that, at the time of the nation's founding, there were no laws banning the use of contraceptives; like laws banning abortion, however, such laws became common during the Second Great Awakening. (9)

      In other cases, members of the Court have disagreed about what the relevant history is or how to characterize it. In Bowers v. Hardwick, the majority, rejecting a constitutional challenge to Georgia's antisodomy law, explained that laws against sodomy had "ancient roots" and existed in all or most states both at the time of our founding and when the Fourteenth Amendment was ratified in 1868. (10) In Lawrence v. Texas, however, Justice Kennedy explained in his opinion for the majority that "there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter." (11) In some instances, the history is not at all helpful for progressives--for example, there is an almost total lack of history of same-sex marriages until relatively recently. In such instances, the more progressive justices have embraced a broader view of fundamental rights rather than the specific laws or traditions that existed at our founding. (12)

      As these foregoing examples illustrate, even if history matters, determining what the relevant history is can be debatable. Historical inquiries are often inherently difficult, and as an institution, the Court is not particularly competent at undertaking these inquiries. But one possible takeaway from Stone's book is that liberals should not be too quick to concede that history and tradition are against them, because in many instances, history and tradition are on their side. This is particularly true if the relevant history is what was going on when our nation was founded (and not what was going on in 1868, following the religious fervor of the Second Great Awakening).

      Stone argues that in the sexual-expression cases where the Court has looked to history for guidance, it has often gotten that history wrong or at a minimum misinterpreted it. For example, the Court has declared that history and tradition support its recognition of obscenity as a category of unprotected speech. (13) In Roth v. United States, Justice Brennan, writing for the Court, explained that at the time of the adoption of the First Amendment, thirteen of fourteen states allowed for the prosecution of libel and all states criminalized blasphemy...