As has been widely reported, the GOP health care bill was written in secret by 13 men. What’s shocking about this goes beyond the bad political optics; it’s the revelation that so much of the healthcare debate is really about sex.
The issues that may determine the fate of this legislation, by swaying the votes of moderate GOP Senators like Susan Collins (ME) and Lisa Murkowski (AK), revolve around abortion, contraception, Planned Parenthood, women’s health, and prenatal care.
This is a debate that would likely dismay our founders. According to WhoWhatWhy’s podcast guest this week, constitutional scholar Geoffrey Stone of the University of Chicago, most of the founders rejected the Puritans’ repressive views about sex, which they felt were counter to the rule of reason. According to Stone, the framers warned against the danger of religious views infecting secular legislation.
So why, 240 years later, are we still conflating religious views about sex with public policy? Stone reminds us that the framers rejected the dogmas of denominational Christianity. As a result, in the early years of the republic, there were no laws against obscenity, no laws against abortion or contraception.
During this period, sex was seen as an unexceptional part of everyday life. All that changed early in the 19th century, and we have yet to recover. This history is worth thinking about as the healthcare debate proceeds this week.
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Jeff Schechtman: Welcome to Radio WhoWhatWhy. I’m Jeff Schechtman.
It’s always amazing to realize how many things in Washington that are supposed to be about other policy issues are really about sex. And this isn’t just a concede about sexualized age. It’s been so since the founding of the Republic. Even on this very day as healthcare is being debated with reference to Planned Parenthood, maternity contraception, etc., it’s all really about sex. Our Founders might actually be appalled hearing this debate. To them, they rejected the Puritans repressive views about sex and its sister subject religion. They felt it only was divisive, counter to the rule of reason. So how did we get here, and why after 240 years are we still conflating sex and public policy. We’re going to talk about that with my guest Geoffrey Stone. He is the Edward H. Levi Distinguished Service Professor of Law at the University of Chicago. He is the author of the prize-winning Perilous Times, and he is one of our nation’s leading constitutional scholars. It is my pleasure to welcome Geoffrey Stone here to talk about his new book, Sex and the Constitution: Sex, Religion, and Law from America’s Origins to the Twenty-First Century. Geoffrey Stone, thanks much for joining us.
Geoffrey Stone: Thanks so much for having me Jeff.
Jeff: One of the things that you talk about is the attitudes of our Founders, of the founding fathers, most of them being deist. Most of them really being influenced powerfully by the Enlightenment, the idea of Franklin and Adams and Jefferson, among others. It’s remarkable given that how we got to this idea today of assuming America is a Christian nation. Talk a little bit about that first.
Geoffrey: Well, I mean what you just said is exactly right. I mean the Framers themselves, or at least most of them, were deists – that is they largely rejected the dogmas of what then was seen as traditional Christianity. And this was true across a range of issues, but certainly with respect to sexual issues as well. At the time the Constitution was adopted there were no laws against abortion, there were no laws against obscenity, there were no laws against contraception, and they lived in a world in which sex was seen as a reasonably common part of human life. And that changed, really in the beginning of the 19th century with the Second Great Awakening, an Evangelical movement that had significant influence on the country in the first 40 years of the 19th century, which appalled people like Thomas Jefferson and John Adams, but which basically began the first time to institute laws, for example against obscenity, which had never existed before in Western history and then all of that began to change even more dramatically during the social purity movement of the Victorian era under the influence of Anthony Comstock in the last third of the 19th century. But people don’t remember that there were basically no laws against obscenity in the United States of any consequence until after the 1870s and ‘80s. There were no laws against abortion, at least pre-quickening, that is before the halfway point of pregnancy until the late years of the 19th century. And it came about largely because of a religious revolution and an effort on the part of religious groups to basically conscript the secular law to do exactly what the Framers had warned against. And that is to impose their own religious beliefs upon others who do not share those beliefs. What the Framers wanted was a world in which people who held religious beliefs would be free themselves to exercise them in the absence of very good reason on the part of the government to interfere. But at the same time that the secular law would not conscript the religious faith of one group and impose them on others, and that’s what began to happen in the United States throughout the 19th century. And by the time we get to get to the beginning the 20th century, laws against contraception and abortion, and obscenity are all firmly in place, and homosexuality is come to be viewed much more fervently in opposition than it had been at the time of the Framers. And basically over the last hundred and 25 years, we’ve been kind of fighting ourselves out from under that, and particularly the roles [?] played in the last half-century, has been to me particularly interesting.
Jeff: It’s interesting in trying to understand this and putting it in a larger context that it’s not dissimilar and has interesting parallels with the way the world changed from the pre-Christian period to the Christian period, and the attitudes that shifted at that time.
Geoffrey: Right, the attitudes that we have come to have about sexuality, the awkwardness, the prohibitions, the shame that’s associated with it are not a part of nature, both in Greece and Rome attitudes about sex regarded sexual desire as a natural part of life, and abortion was legal. There were no laws against obscenity. Homosexuality was commonplace and was not prohibited. And that was kind of the world in Western culture, prior to the advent of Christianity. And so what the book does is try to look to have a grand sweep to it, which was largely my own self-discovery. I have to say, when I began this, I did not know very much of the history before the court got involved. And so I learned a lot of this over the course of almost a decade of research to get a sense of on how interesting and how surprising much of this history is. But basically in Greece and Rome, the basic attitudes about sex were pretty much what liberals today would share their own views about sex, but they probably had no idea that this was once the norm.
Jeff: It was also a shift as you talk about, a shift that took place in Christianity beyond just the teachings of Jesus. But, you have to look at Augustine to see how he saw sexual desire is born out of out of evil and as you talk about the passing on of original sin.
Geoffrey: Right, it was mainly Augustine who had the critical effect of defining sexual desire itself as sinful and shameful. And it was Augustine who himself was a young man by the way, who had a very fervent life of sexuality, but it was Augustine who basically took the view that what happened in the Garden of Eden and that the fall of man for which we all bear an ongoing responsibility was not about disobedience of God, as the ancient Hebrews had believed, but it was about sex. And it was Augustine who basically took the view that sexual desire itself is evil is sinful, is shameful and that no sexual behavior is permissible within the understanding of his religion, unless it takes place within marriage unless it takes place only for the purpose of procreation and unless it takes place without any sexual pleasure even in those circumstances – that sex itself and sexual pleasure were evil. And that became the dominant view of the church for a very long time, really until the Reformation, when the Protestant view began to shift and began to recognize sexual desire, at least within marriage is a positive thing, rather than inherently shameful and sinful. And then in the Enlightenment, people like Voltaire and Rousseau and others basically looked at, even doubt those views, and says, “Wait a minute, but those don’t really make any sense. Sex and sexual desire is a natural part of being human and should not be denigrated.” And they basically rejected the notion that sex itself is an evil and sinful thing, and that’s the world the Framers inherited, a world in which from their standpoint, they were not founding a Christian nation. They were founding a nation to believe deeply in the pursuit of happiness and the freedom of man.
Jeff: I mean they were much more interested in We the People rather than rights emanating from God,
Geoffrey: Right, I mean their view clearly as I said was that they fully respected the right of individuals to live their own lives in accord with a religious faith but they completely rejected the idea that people could use the law to impose their religious beliefs about people who don’t share their faith. And that’s what we’ve seen happen in this country beginning of the 19th century, in betrayal of what the Framers themselves believed up until the present. And the debates about abortion or same-sex marriage are deeply bound-up with a certain set of religious views wanting to impose their views upon others, that they don’t want to enter into same-sex marriage themselves, or they don’t want to have abortions themselves is clearly their right. But to tell others that because we have a religious view about these matters, you cannot exercise your freedoms, is directly incompatible with what the Framers themselves thought to be appropriate.
Jeff: And what happened in the Second Great Awakening in this country that began to change this?
Geoffrey: Well, this was partly a response to the French Revolution, partly a response to the sense that secularism and rationalism have gone too far, and with the execution in the French revolution using the guillotine, and so on, people began to look at what had happened about the libertinism of the Enlightenment and to resist that, to move back from that. And so in the early years of the 19th century there was this very strong Evangelical movement to reestablish what had been the case before the Enlightenment, which was a much more religiously based society, and organizations were created across the United States designed to change the law across a range of issues including, for example, Sunday closing laws. So, for example, at that time there were no laws that required businesses to be closed on Sundays and Sunday mail delivery was commonplace and that was the norm because the Framers did not believe in respecting through law the Sabbath. And the Evangelicals of the Second Great Awakening, for example, fought the fervent battle to try to get Sunday mail delivery prohibited, because in their view, that was sacrilegious. Interestingly, they failed. In the end they failed to get Sunday mail delivery prohibited and that only happened the beginning of the 20th century when labor unions demanded that they be able to take a day off. But that was exemplary. Another example is laws against blasphemy. The Framers themselves understood the laws against blasphemy were completely incompatible with their understandings about free speech and freedom of religion. During the second great awakening, the proponents of that religious movement attempted to get laws enacted, and did successfully, get laws enacted that made blasphemy a crime. And there were a number prosecutions of individuals during that era for engaging in blasphemous speech. So that was an example of how the Second Great Awakening came in. And they also demanded that people should only vote for what they regarded as faithful Christians. By 1840s, that movement began to collapse and mainstream Protestants increasingly came to regard it as dangerous and as incompatible with the values the nation was founded on. And by the 1840s, the Second Great Awakening pretty much petered out. But it left its effect in enacting a certain set of laws.
Jeff: But then you had somebody like Anthony Comstock, and do talk about who he was, come along after that, to try and reignite this.
Geoffrey: Right, so after the Civil War, Anthony Comstock, who had been basically an uninteresting person raised in a very religious family who was shocked when he entered the Civil War is as a soldier for the Union, to discover that his colleagues in his troop were reading all this pornography, which he just found horrifying. And after the war, he had a good friend who died apparently of venereal disease and he concluded that he must’ve contracted the disease because he was reading pornography, which was then legal, and he wanted to stamp this out. And so he initiated a movement which was designed to get laws enacted in every state in the nation and by the federal government called ultimately Comstock Laws which made the sale or distribution, or possession of sexual material illegal. And he succeeded. And by the end of the 19th century, every state in the nation had adopted laws prohibiting the sale of sexual material and the concept of obscenity was defined extremely broadly. So any piece of literature that used the word like penis, for example, or even words that talked about pregnancy, were deemed obscene and were prohibited. Even anything that talked about contraception was deemed obscene and prohibited. And indeed, devices that helped with contraception were prohibited under these laws. So Comstock led this movement which led to a profound legal change in the United States, which for the first time resulted in laws prohibiting obscenity, contraception, and ultimately abortion – none of which had previously been illegal.
Jeff: To what extent, and how powerful were those ideas at the time that they held for so long. I mean they waned during various times, but they stayed pretty much in place until what you talk about is really the Third Awakening that took place beginning in the 70s. Well, the pushback against these laws existed from the beginning. There were individuals who strongly opposed the anti-contraception, anti-sexual expression, anti-abortion movements, but they did not win in their battles in the late 19th century. In the early 20th century, there were people like Margaret Sanger, for example, who led the birth-control movement, who began having a more significant impact. And courts began interpreting these laws more narrowly. So they began defining what was obscene much more narrowly, as we moved into the 20th century, than was the case in the late 19th century. But they still were defined pretty broadly. States began eliminating their laws against the sale or distribution of contraception as we moved towards the middle of the 20th century. Abortion of course remained illegal until the 1960s when a number of states finally decided to change that. But the pushback became strong in the early 20th century and people like Margaret Sanger are a great example, and it was not really until the 60s when with the Sexual Revolution and the Women’s Movement that these issues really came more forcefully to the fore. And the Supreme Court began getting involved in these issues, really, in the late 1950s, particularly on the issue of abortion – I’m sorry, the issue of obscenity – when it began looking at that and then gradually it began holding laws against obscenity unconstitutional, holding laws against contraception unconstitutional, holding laws eventually in Roe v Wade against abortion unconstitutional, holding laws against sodomy unconstitutional beginning with Lawrence v Texas. And then now of course holding that there’s a constitutional right to same-sex marriage. This evolution among the Justices was not an easy one, and it was very much supported by social movements during this time. But the product of this change has been to largely reverse the, in my view, the abusive impulse to impose upon people a religious group, the faith of a particular religious group, on others who don’t share that faith. And that’s where we are largely at the moment, but that battle’s not over. It’s obviously an ongoing battle and what’s happening now with Supreme Court is very much bound up with the future of that battle.
Jeff: And yet there’s an irony in all of this because we see Justices on the right. Those like the late Justice Scalia, or Justice Gorsuch, that the originalist view is more repressive than the Founders seem to have been.
Geoffrey: Well, yes, their view is that the Founders, for example, did not affirmatively intend when they adopted the Constitution to make abortion a constitutional right. And it is true that the Framers did not think consciously about that question. Partly, of course, because abortion was legal, and abortion had always been legal. And so it didn’t even occur to them that there was a need expressly to guarantee in the Constitution that there is a constitutional right of a woman to control her own reproductive destiny, because that issue had never been a battle that had previously been fought. On the other hand, the Framers clearly understood that the enumeration of rights, freedom of speech, freedom of religion, freedom from reasonable searches and seizures, should not be thought to be exhaustive. They recognized that there may well be rights that they had not thought about as rights, but that should be understood as rights, and so they adopted the ninth amendment to the Constitution which basically said explicitly that the enumeration of rights in the Constitution should not be taken to deny or disparage other rights held by the people. So they understood that there were other unenumerated rights, rights that they had not explicitly stated that they thought should exist. And abortion, for example, is one that one can make a reasonable case to the fact that even though they did not affirmatively think about the question of abortion, part of the reason they didn’t was because there had never been a fight over the right to abortion. It had always been understood. But the ninth amendment, one can easily say, was meant precisely for this purpose.
Jeff: Putting it into the context of social movements today, it does seem to be that the more the culture is sexualized, that the more these issues tend to play into decisions, or at least considerations, as the court takes up some of these cases.
Geoffrey: Social movements have played a powerful role in shaping laws about sexuality, has been true ever since the Second Great Awakening, in both directions. So the Second Great Awakening, the Victorian era, the Social Purity Movement, Comstock, those were major social movements that had a very repressive view about sexuality and caused the enactment of laws that for the first time prohibited a variety of sexually related activities that had previously been acceptable. More recently, the movements have been in both directions, that as we’ve seen obviously the gay rights movement, the women’s rights movement, the reproductive rights movement, birth control movement, and so on, that have pushed back in the other direction. And then countering that of course have been the Moral Majority and the conservative religious-right today battling over these issues. And the Supreme Court has gotten involved in this, appropriately in my view, because these rights do exist, and because the imposition of religious belief on fundamental decisions that should belong to the individual, does implicate important values within the Constitution. And like other issues, like affirmative action, or campaign-finance, or in the past, segregation – these are issues that sharply divide the American people, but they also deal with fundamental rights of the American people, and it’s appropriate for the Supreme Court to be working them out. And it’s tricky, and it’s difficult, but just as Brown v the Board of Education in my view was clearly correct. I think Roe v Wade was clearly correct. And I think that Lawrence v Texas was clearly correct. They are fundamental decisions protecting essential rights of the American people and that’s the reason the court exists. The Supreme Court exists, and the Framers understood this perfectly, to stand up against majorities that wanted to use the law either to oppress minorities, or to impose their own religious views upon others.
Jeff: It’s interesting and certainly there are other areas, race, you know you mention Brown v the Board of Education, race is certainly one of them, but particularly on all these issues relating to sexuality, that over the years the court has so often been on both sides of the issue – Bowers versus Hardwick, Lawrence v Texas. I mean that’s just one example, but there are so many things where the court has been on both sides at various times.
Geoffrey: So part of the reality, of course, is Justices are on both sides. Bowers v Hardwick, which was decided in late 1980s where the Supreme Court upheld the constitutionality laws prohibiting sodomy, was a 5-4 decision. And one of the fascinating things about Bowers v Hardwick, which I tell in the book, is a story about Justice Lewis Powell, who was the deciding vote in the case. And Powell at the time had a conversation with one of his law clerks, trying to understand homosexuality. Powell was a southern gentleman from Virginia. He told his law clerk, “I’ve never met a homosexual. I don’t understand what it’s about.” The law clerk tried to illuminate and sort of enlighten Powell on this, but what Powell never knew at the time was that the law clerk was gay. And Powell later said… and he voted with the conservatives in the case, 5-4, to uphold the constitutionality of laws against sodomy. And in later years Powell said, “I regretted that decision. At that time I did not understand as much as I should have, and as much as society was beginning to understand about the nature of sexual orientation and homosexuality.” And so part of the answer to your question I think is at first of all even in these individual cases Justices are divided. But second of all, Justices do and should learn over time about society, about values, about norms, and in the same way that they in Brown v Board of Education, overruled Plessy v Ferguson, a prior decision that held separate but equal is constitutional. It was perfectly appropriate in Lawrence v Texas to overrule Bowers v Hardwick, because in those intervening 17 years the nation changed and people came to understand sexual orientation differently. A critical change was brought about by AIDS. At the time of Bowers, most people like Lewis Powell thought they’d never met a homosexual. Gays lived in the closet because not to be in the closet was in many ways dangerous. With the AIDS epidemic, people were forced to reveal their identities and individuals suddenly learned that they had children or parents or cousins or neighbors or teachers or students who were gay, and they never realized that before. And the more people came to know people who were gay, the more their views about homosexuality changed in an appropriate way. And by the time of Lawrence v Texas, the court is able to overrule Bowers, because the Justices too came to understand that this issue was different from the one they thought it was in 1986. So that’s an appropriate thing. And again, in Roe v Wade, when Justice Blackmun wrote his decision in Roe v Wade – people forget by the way that three of Nixon’s four nominees to the court supported the constitutional right to abortion, even though they were conservative Justices. But when Blackmun wrote his opinion he went back and talked about what the law was like at the time of the founding, and that abortion was legal, and that the Framers thought it should be legal. And he went back and he took that and integrated it into his opinion in Roe v Wade, appropriately so. So Justices are learning, and as they learn, that should affect the way they think about constitutional issues.
Jeff: And finally as we look at this whole notion of sex and the Constitution, is there anything you see that is changing, or more dangerous, or more volatile today by virtue of the degree to which politics has so much entered into the court?
Geoffrey: So the court at the present time is more politicized than it has been a long time. And by that I mean two things, one is that people look to the court to decide really profoundly divisive issues – campaign-finance, guns, affirmative action, voting rights, abortion, the rights of gays and lesbians, and so on. But the other part of it is that the Justices tend to divide in a way that is disquieting, very much according to whether they were appointed by a Republican president or Democratic president. And that’s not been true historically, and that’s not been true until very recently in fact. Until very recently, people like Justice Byron White, who had been appointed by President Kennedy, a Democrat, were pretty conservative. And Justices like William Brennan and Earl Warren, who been appointed by Dwight Eisenhower, were fairly liberal. And a number of other Justices like David Souter and John Paul Stevens who were appointed by Republican presidents, were fairly moderate within the court and sometimes voted one way, sometimes voted the other way. At the moment I think we’re seeing a highly politicized nomination confirmation process, and this really came to a head in an unprecedented way when the Senate Republicans refused to hold hearings for or to confirm President Obama’s nomination of Merrick Garland. That was truly to me shocking. There’d been a long practice without a single variation that the Senate confirmed any presidential nominee to the court who was reasonably moderate, clearly qualified, and clearly ethical. And that holds true regardless whether the president was a Republican or Democrat, and regardless whether the Senate was controlled by a Republican or the Democrats. And in the Garland case, the Senate Republicans did something that really was to me unconscionable, and that is without any legitimate justification, refusing to confirm Merrick Garland for the simple reason that they did not like the change in the court that would occur if Garland replaced Scalia. And that politicized the process in a way that we have not seen since Franklin Roosevelt tried to pack the court. And that I think is extremely dangerous and it changes the process in ways that further politicize it, and I think damages the court as an institution.
Jeff: Geoffrey Stone. Geoffrey I thank you so much for spending time with us.
Geoffrey: My pleasure, thank you so much for having me.
Jeff Schechtman: Thank you for listening and joining us here on Radio WhoWhatWhy. I hope you join us next week for another Radio WhoWhatWhy podcast. I’m Jeff Schechtman.
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Related front page panorama photo credit: Adapted by WhoWhatWhy from Doctor (Mississippi Department of Archives and History / Flickr) and Mitch McConnell (Obama White House / Flickr).
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