Sex is a word that will sell whatever you want – be it clothes, shoes, cars … or the constitution.
I must admit when I went through a list of the latest books published this year by Chicago authors to review in our paper – Sex and the Constitution stood out. Sex and our laws, now there’s an interesting topic to explore.
Sex and the Constitution written by University of Chicago law professor Geoffrey Stone explores the history of sex, religion, law and constitutional law from the ancient world to the 21st century. One quick warning – it is long, over 500 pages, but it is filled with good prose in understandable language that paints an interesting historical picture of society and sex.
Stone explains how American attitudes about sex have been shaped over the centuries by religious beliefs, primarily by the Christian religion here, about sex, sin and shame, and how it affects people’s constitutional rights.
He notes that at the time the Constitution was adopted, there were no laws in the U.S. forbidding sexual expression, contraception or pre-quickening abortion (before you feel the fetus kicking), and old laws against sodomy were rarely if ever enforced. This was thanks to the Enlightenment which inspired our Founding Fathers. But with the Second Great Awakening, the social purity movement and the reign of Anthony Comstock, religious forces imposed harsh new restraints on sexual expression, contraception, abortion and homosexuality.
The battle to regulate sex is intense between the religious right and progressive forces, with the Supreme Court playing a big role.
Where Stone shines, in my opinion, is his history of the gay-rights movement. Wow, were these people persecuted no differently than the black people brought over here in chains and considered mere property. His vast research and anecdotes have you scratching your head at the barbarism of our country. Stone begins with ancient Greece and Rome where there was no concept of sexual sin, prostitution was taxed and male prostitutes even had their own holiday. “In these ancient cultures, sex was regarded as a natural part of life. By the end of the fifth century, however, Christianity came to condemn sexual desire as inherently shameful.” The Church prosecuted women more often than men for fornication, and taught that sexual passion had no place in Christian marriage.
Stone writes that homosexuality first became a crime during the Inquisition in the 13th century when the Church persecuted heretics. And it was the Puritans who declared it the duty of the courts to enforce religious principals, including execution for such serious offenses as blasphemy, sodomy, murder, adultery and witchcraft.
For a brief period of the early 20th century leading up to the Roaring 20s, there was a subculture of “fairies and queers” who in many places were hired to sing, dance and entertain crowds until the Depression led to a general societal withdrawal from cultural openness and experimentation. “Within a few years, the vibrant pre-Depression homosexual subculture of queers, fairies, cross-dressers, and pansies was so completely obliterated and then blotted out of the nation’s consciousness that later generations of Americans – gay as well as straight – ‘were all but unaware of their existence.’”
Then the witch hunt began – Hollywood eliminated any reference to gays or lesbians in the movies, homosexuals became potentially dangerous psychopaths capable of committing unspeakable crimes, and gays and lesbians disappeared into the closet, “giving special power to the negative public depictions.”
The pervasive religious condemnation of the homosexual’s ‘sinful’ desires, compounded by a steady stream of stories in the media and in popular literature depicting homosexuals as sexual psychopaths, degenerates and social misfits – forced gay people to loath themselves, Stone writes.
In the 1950s when the country sought to restore its sense of family values, women were pushed back into their traditional roles in the homes and gays were perverts outside the norm. The army discharged more than 9,000 gay men and lesbian soldiers, destroying their careers and lives. Sen. Joseph McCarthy’s witch-hunt against suspected communists included suspected gays and lesbians as well and the FBI compiled lists of gay bars around the country to monitor suspected homosexuals. The government actually expended more resources in its anti-homosexual witch-hunts than against communists, and President Dwight Eisenhower declared “sexual perversion” a serious security risk. During the Lavender Scare, some 5,000 gays and lesbians lost their federal jobs as a result of the witch hunt. The tactics here would make the Nazis proud – in Baltimore the police arrested 162 gay men on a single day! Thousands of gay people lost their jobs and were imprisoned in jails and mental hospitals.
The media, Stone writes in the chapter titled Coming Out, contributed to the purge of homosexuals from government positions by writing lots of lurid and fearmongering articles and editorials. At this time in the 1950s, civil rights groups refused to support the gay people.
The first crack in the ice of terror for gay people came when Dr. Alfred Kinsey published his ground-breaking work – Sexual Behavior in the Human Male. “Kinsey was confident that Americans would abandon their ‘superstitions’ about homosexuality ‘once they considered the scientific evidence he had assembled.’” For the gay people, it was a “watershed moment.” Kinsey’s findings were of course vilified by clergy and conservative journalists and politicians. FBI Director J. Edgar Hoover, himself suspected to be gay, launched an investigation and harassment against Kinsey’s Institute for Sex Research.
The thaw then started. Illinois in 1961 became the first state in the nation to decriminalize consensual homosexual sodomy, where it was noted, “The police in Chicago were harassing homosexuals outrageously.” While the issue of gay rights was largely drowned out in the 1960s by the civil rights movement, Vietnam and the woman’s movement, in 1969 gay and lesbian activists formed the Gay Liberation Front, which like their black brothers and sisters fighting police harassment, took a militant stance to enforce their rights. Black Panther leader Huey Newton said homosexuals were possibly “the most oppressed people in the society.”
By the end of the 1970s, 29 cities had enacted laws prohibiting employment discrimination on the basis of sexual orientation. But the fight didn’t end as a religious right battled the gays, with bumper stickers proclaiming, “Kill a Queer for Christ.” Suddenly, those laws that had been enacted to protect gays from discrimination were repealed in cities across the nation.
Stone writes that it was after 1980 when a “profound transformation” took place in the standing of gays and lesbians in American society. AIDS brought homosexuality into the light. Hollywood films like Philadelphia addressed their plight. Suddenly it became impossible for hundreds of thousands of gay men to lead their lives in the closet. And the American public started to realize gays were not “freaks of nature,” but normal people. By 2013, 75 percent of Americans had been told personally by friends, relatives, neighbors, or co-workers that they were gay or lesbian. And according to recent polls, 89 percent of Americans now believe that gays and lesbians should have equal rights in employment and 77 percent thought gays should be able to serve openly in the military.
But it was the homosexual’s right to marriage that made them turn to the Supreme Court and the U.S. Constitution. The conservative justices led by Antonin Scalia reasoned that if states choose to permit or deny homosexuals to marry, that’s their right, and not the Court’s business. In what Stone called a bitterly divided five-to-four decision, the Court invalidated a part of the Defense of Marriage Act (DOMA) in which the federal government could not constitutionally discriminate against couples who were legally married in another state because they were the same sex. Justice Anthony Kennedy, a conservative, said DOMA humiliates tens of thousands of children now being raised by same-sex partners. “Gay and lesbian people are equal. They deserve equal protection of the laws, and they deserve it now,” he stated. It was a stunning, and liberal, decision to grant gays and lesbians the right to marry and be recognized everywhere.
What changed in America was a new awareness of gays and lesbians in society and the new public and legal understanding of the morality and wisdom of law discriminating against homosexuals. Stone can’t explain why a conservative court gave gay people their ultimate victory.
He writes that the four dissenting justices – Alito, Thomas, Scalia, and Robertas – were deeply and morally offended by the very idea of same-sex marriage. He notes that these four justices have embraced aggressive interpretations of the Constitution in order to hold unconstitutional laws regulating campaign expenditures, regulating guns, protecting voting rights of racial minorities and promoting racial integration.
In the four months after the Court’s decision, some 200,000 gays and lesbians got married, bringing to one million homosexual marriages, and more than a quarter of these families are already raising their own children.
Sex and the Constitution is a well-written, powerfully researched and fascinating account of the fight between the left and right to regulate sex in this country. Where Stone shines are his accounts of the gay-rights movement and the abortion debate in Roe v. Wade. It is that story we would like to bring to you next week in a second part of our review of this book.
By Jim Vail