In the field of law, Constitutional Law holds an integral position, it is the area which governs every aspect of an individual’s existence in a nation; it is a foundation in the construction of any nation’s development, the safeguard of rights and more importantly, the evaluator of the justice system of a nation. In the words of A.E. Samman, “History could not be any clearer: Rights given by fad and fashion are just as easily taken away. The Constitution matters.” Time and again, legal scholars have discussed the American Constitution regarding various aspects of society and policy. Geoffrey Stone’s book ‘Sex and the Constitution: Sex, Religion, and Law from America’s Origins to the Twenty-First Century’ is one of its kind in the constitutional domain for discussing sex concerning the American Constitution. Stone, a law professor and an expert on the First Amendment, takes us through the history of governance of sex by the Constitution in Ancient Greece to modern-day America.
The author narrates the content in a jocular and whimsical tone which distinguishes it from other books in the constitutional genre. Stone has qualitatively established that this book is not only meant for legal practitioners and scholars but also caters to historians, sociologists and even avid readers. It takes us to Ancient Greece and acquaints us with humorous stories where a law clerk had to describe, out loud, the erotic cinemas being screened to determine standards for ‘obscenity’. However, the unnecessary lucid descriptions of pornographic material deviate from the purpose of the book.
The book is divided into two broad sections – the first part of the book extensively and precisely takes us through the history of sex law. The journey starts in Ancient Greece and takes us to mid-eighteenth-century America flooded with ideas of Victorian morality led by Anthony Comstock. It discusses how every aspect of sex has been celebrated, condemned and controlled through the shenanigans of law. The second part is more relevant to today’s day and age, and attempts to answer the question – how does the constitution which has no mention of sexual rights and also governs reproduction and homosexuality prove as a protection of the former?
Stone has spent an exuberant amount of time studying the applications of the Constitution to the sex laws. In recent years, Supreme Court Justices have moved towards a historical analysis of issues dealing with gender laws and the book surfs a reader through the history of the same. In the primary chapters of Sex and the Constitution, Stone brilliantly explains how America was perceived to be a Catholic nation due to the emergence of potential civil war and how Puritan ideas were imbibed in the United States through the emergence of Anthony Comstock’s propagation of Victorian morality, led by the hunger and greed for absolute power. His strategy to power was established by curbing sexual freedom through a two-fold path of control over obscenity laws and individuals providing means to contraception. His central agenda was to propagate the protection of society through morality. This idea brought a cultural shift in the entire nation, where going against morals was equated to going against religion. Stone, in conclusion to the first few chapters, indirectly expresses how regulation of sexual acts and expression gave access to absolute power. He substantiates this with examples from history such as, a social norm of equalizing women to weak and inferior that was brought about by an introduction to penetration, wherein the one who gets penetrated was deemed weak and powerless. The development of anti-same-sex laws, Henry the VIII’s introduction to sodomy laws to ridicule his enemies, Nixon’s anti-abortion laws, Republican Party’s ‘Lavender Scare’[i] and many different illustrative examples convince a reader of the concept of power through the regulation of sexual desire.
The next chapter in Sex and the Constitution emphasizes how and when the public turned to the Constitution to find their answers on the laws which regulated and governed sex. Stone describes this phenomenon as a recent one in comparison to the existence of the constitution, it rose only in the 1950s when the first major “sex” case Roth v United States[ii] was thrust into the public light. The case established that obscenity is not protected by the First Amendment of the U.S. Constitution. A constant attempt which led to the failure in explaining and transpiring the concept of “obscenity” all paths answered, “I know it when I see it”. Perhaps, the precise definition of obscenity will never come into existence. As Stone mentions, the law is an instrument of technological developments and social mores. Perhaps, the only true entity time defines ‘obscenity’; the change to it is the only constant. It is immensely excruciating for a Generation Z[iii] critic to elaborate the struggle of the battles and movements which were fought for freedom of speech, contraceptives, abortion and other social constructs as they were already fought and won. A historical analysis of the times when the United States was formed, helps Stone answer the question on how a document which has no reference to any laws relating to reproduction protect the rights of women when it comes to contraception. Simply, history provides a foundation for the answer. Illustrations in Griswold v. Connecticut[iv] where the Supreme Court establishes that married couples have the right to access birth control as marital intimacy is a right older than the constitution. Further, this right was extended to unmarried couples too, through Eisenstaedt v. Baird[v], as distinguishing on marital status would draw a line of unconstitutional inequality. A similar approach of historical analysis was put forth by Justice Blackmun in the case of Roe v. Wade, where the foundation of constitutional drafters was not against abortion was proved and women’s’ right to abort was granted a fundamental right status.
The last chapters of the book are narratives of the rights of gay individuals. The American Constitution has remained silent about it too. In Bowers v. Hardwick[vi], the Supreme Court established that a state anti-sodomy law is constitutional as there is a long history of Judeo- Christian societies that viewed sodomy heterosexual or homosexual as immoral. After two decades, it was repealed in the case of Lawrence v Texas[vii], what triggered such a societal change in such a short period is fascinating. Stone cites two major causes for the same, first one being, the changing social opinion of homosexuality brought about by the AIDS epidemic made numerous homosexual individuals come out of the closet involuntarily. The second case for this change was due to the change in the composition of the judiciary at the Supreme Court. The result of the same was that Justice Kennedy[viii] in his opinion on sex quoted that ‘sex’ is the “most private human conduct” and one’s private sexual acts and liberty are protected under the umbrella of the U.S. Constitution. Bowers spoke about sex from a historical religious perspective and Lawrence viewed the same issue from the modern-day sociological changes. In conclusion, this established that the Constitution is not a tool to impose religious beliefs and separation of state from religion is the foundation on which the drafters made the Constitution for this free country. Stone, throws light on the recent times, as in Obergefell v. Hodges[ix], how it was concluded that marriage equality is a fundamental right and laws restricting gay marriages are unconstitutional as they are contradictory to the fundamental rights and yet again proves how religion tries to dilute with the law.
In conclusion, this book provides readers with a unique perspective in the study of Constitutional Law. The delicate craft of constitutional interpretation may give us liberty, equality and a path towards progress if handled with caution; otherwise, it may lead to discrimination and enforcement of outdated religious norms. This book is thought-provoking and leaves us with more questions by the end of it. Who will win in the battle between liberty and morality? Will sexual freedom continue to be access to greater power for the authoritarians? It is extremely difficult to determine what the Constitution holds for laws relating to sex in the near future, perhaps, it is one of the ways in which nature surprises us. Geoffrey Stone leaves these questions unanswered but, most certainly gives us the tools to construct our arguments on the same, how sexual rights can be taken away and be granted at the same time. Sex and the Constitution is a debutante book in its genre and serves a nouvelle approach to the Constitution outside the conventionally discussed subjects.
[i] Johnson, D.,The Lavender Scare. Chicago: The University of Chicago Press (2004).
[ii] Roth v. United States, 354 U.S. 476 (1957, Supreme Court of United States).
[iii] Definition of Generation Z, merriam-webster.com (2018),
https://www.merriam-webster.com/dictionary/Generation%20Z [last seen on 30/08/2018].
[iv] Griswold v. Connecticut, 381 U.S. 479 (1965, Supreme Court of United States).
[v] Eisenstaedt v. Baird, 405 U.S. 438 (1972, Supreme Court of United States).
[vi] Bowers v. Hardwick, 478 U.S. 186 (1986, Supreme Court of United States).
[vii] Lawrence v. Texas, 539 U.S. 558 (2003, Supreme Court of United States).
[viii] Romer v. Evans, 517 U.S. 620 (1996, Supreme Court of United States).
[ix] Obergefell v. Hodges, 576 U.S. 644 (2015, Supreme Court of United States).
The piece has been contributed by Vishwajeet Deshmukh.