People gather outside the Supreme Court in Washington, DC on June 26, 2015 after it ruled in a narrow 5-4 decision that the US Constitution requires all states to carry out and recognize marriage between people of the same sex.

People gather outside the Supreme Court in Washington, DC on June 26, 2015 after it ruled in a narrow 5-4 decision that the US Constitution requires all states to carry out and recognize marriage between people of the same sex.

Over the last two centuries, sex has been at the center of many American legal battles – from contraception and abortion to same-sex marriage.

The reasons behind these conflicts can be found in the tension between American attitudes about sex, which have been shaped by centuries of religious beliefs, and the constitutionally mandated separation of church and state. This history is laid out in a new book by Geoffrey Stone, one of the nation’s leading constitutional law professors.

In the book, Stone tells the story of the Supreme Court’s continuing quest to reconcile deeply rooted religious beliefs with evolving conceptions of individual liberty, personal privacy and human equality.

Guests

  • Geoffrey Stone Professor of law, University of Chicago; author of "Perilous Times."

Read The Prologue Of "Sex And the Constitution" By Geoffrey Stone

Copyright © 2017 by Geoffrey Stone. Published by permission of Liveright Publishing Corporation.

Interview Highlights

Why We Should Start Talking About Sex In Public 

“Sex is an important part of our lives, in a whole range of different activities. Whether it be issues like abortion, and contraception, and same-sex marriage, and marriage itself. Second of all, because the law interferes with the liberty of individuals with respect to sexual-related behavior. Therefore for us not to talk about it, would simply be inconceivable. I understand why some people might be shy about it, but that’s no reason not to talk about it.”

How The Book Came About

“It was a curiosity-driven project. I had begun thinking about the Supreme Court’s decisions involving issues like contraception, and obscenity, and abortion, and sodomy and so on — and was interested in how the framers might have thought about these issues. I didn’t know much about that particular history, and as I said curiosity drove my inquiry. The more I began to look into it, the more I realized this is a really fascinating story involving a whole series of developments both before and after the framing of the constitution, that I and most other people didn’t know about.” 

On Anthony Comstock

“Comstock was a deeply religious individual who was shocked by the availability of sexual expression in New York when he moved there. One of his friends died of what probably was a venereal disease. Comstock decided this was no doubt because he was reading some dirty books which were legal at the time, there were no laws about obscenity at this time. Comstock went out to basically lead a movement to ban obscenity in the United States. He was extraordinarily successful in the latter half of the nineteenth century. Largely because of his efforts, by the end of the nineteenth century, every state in the nation plus the federal government had laws against obscenity.” 

“The United States had no laws against obscenity at the time the Constitution was adopted. The framers of the First Amendment would have assumed that sexual expression was in the context of what the First Amendment protected. But leading this moralist charge, deeply rooted in religious values, Comstock effectively enacted these laws. They were extremely broad. They did not limit what we might have thought of in the 1970s as obscenity — they basically prohibited any reference to sex, or sexuality, or reproduction in any materials whatsoever.”

On Abortion Becoming Illegal

“Abortion was legal throughout western culture, and in the United States until the late nineteenth century. It became illegal particularly because of a group of very religious, moralist doctors took the lead in the founding of the American Medical Association after the Civil War to basically create the idea that the fetus was a person from the moment of conception. Before that and historically, the standard view among protestants and among all civilizations was that abortion was perfectly legal until quickening. [Quickening] was the time when a woman first feels movement which is roughly at 4 1/2 months.” 

“Horatio Storer, who was the leader of this movement, took the view that science — even though there was no science, in fact, to support it — demonstrated that a fetus was a person, and conscious and could think at the time of conception. This movement which connected to the social purity movement at the end of the nineteenth century wound up leading to the adoption of laws prohibiting abortion.” 

On Roe v. Wade

“One of the things people forget is that when Roe v. Wade was decided, it was not seen as a highly ideological decision.”

“The American people generally supported the decision. Only 41% of the American people thought Roe was wrongly decided.” 

“The general reaction to Roe v. Wade in the media, and more broadly was supportive. That began to change at the end of the decade with the equal rights amendment, with the beginning of the gay right’s movement, and with changes in sexual attitude and family attitudes generally in the country.” 

When Did The National Attitude On Abortion Change?

“Beginning in 1979 or ’80 with the creation of the moral majority, evangelicals became for the first time—at least since the early nineteenth century—became a powerful political group in the United States. The Republican party decided to align itself very explicitly with [evangelicals] and Ronald Reagan became the first president explicitly to call for Roe v. Wade to be overruled. Begging at that time, there was this coalition between the moral majority, between the evangelicals and the Republican party that has produced the division in the country which exists to this day.”

Laws Repressing The LGBTQ Community

“I don’t think we are going to be moving backwards to laws that prohibit sodomy in our country, not in any foreseeable time period anyway. I do think the issues for the future have to do with discrimination against gays and lesbians and whether states are allowed to do that. The Supreme Court hasn’t ever addressed that question, and I do hope it’s something the court addresses while Justice Kennedy and the others are still on the court.” 

“The other issue today has to do with transgender persons and issues of discrimination. Those are very deep and profound issues.”

How Would The Framers React To The Bathroom Bill? 

“The framers didn’t know there was any such thing as being transgender. So, the whole concept would have been bizarre to them frankly. I think they would have seen it as an inequality that would have been seriously problematic. There was no equal protection clause in the original constitution. The framers, if they understood the world as we understand it today, they would have said that this is unconditional inequality, that the state should not be allowed to impose and that individuals who are transgender are like individuals who are gay, who are like women, who are like African Americans — and that the characteristics that make someone transgender are immutability, a history of discrimination, a lack of political power to protect themselves; therefore, laws that disadvantage them are unconstitutional.”

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