March 6, 2017

Sex and the Constitution

by Geoffrey Stone, ACS Board of Advisors Member and Edward H. Levi Distinguished Service Professor at the University of Chicago Law School

My new book, Sex and the Constitution, will officially be released on March 21, but is now available for pre-order on Amazon at a discount. I have worked on this book, on-and-off, for roughly a decade. My goal was to explore the history of sex, religion, law and constitutional law from the ancient world to the 21st century. It was probably a crazy goal, which is no doubt at least partly why it took so long to complete. Now that it is complete, though, I have to admit that I am quite pleased with the result, and the early reviews have been glowing, including from such folks as Lawrence Tribe, Linda Greenhouse, Cass Sunstein, Erwin Chemerinsky, David Cole and George Chauncey.

I have been invited to write this ACS BookTalk in order to inform readers about the work and, hopefully, to entice your curiosity. Rather than writing something “new” for this purpose, I decided that the best way to accomplish the goal is simply to set forth below the opening paragraphs of the Prologue. Hopefully, that will give you a sense of what this work is all about.

We are in the midst of a constitutional revolution. It is a revolution that tests the most fundamental values of the American people and that 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. Sexing the Constitution explores the remarkable process through which Americans, and especially the justices of our Supreme Court, have navigated these profoundly divisive and important questions.

Not surprisingly, our social mores and our laws governing sexual behavior are deeply bound up with religious beliefs and traditions. A central theme of Sexing 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 “culture wars” – over such issues as obscenity, contraception, abortion, sodomy 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 Schafly and Anthony Kennedy, to name just a few. It is, dare I say, a great story.

Sexing the Constitution proceeds in six parts, each of which explores a pivotal era in the historical evolution of sexual mores and of American constitutional law.

The six parts referred to above focus on what I call Ancestors, Founders, Moralists, and then three parts on Judges (one each on Sexual Expression, Reproductive Right and Sexual Orientation).

In conclusion, let me say that when I wrote this book I new that the central themes were important to understand, but in light of recent events, my sense is that this work is, unfortunately, more timely and more important today than I ever imagined.