by Geoffrey R. Stone
Liveright, 668 pp., $35.00
In the United States, gay marriage has gone from unthinkable to the law of the land in just a couple of decades. Homosexuality has gone from “the love that dare not speak its name”—something that could get you locked up, beat up, ostracized or killed, as is still the case in much of the world—into something that’s out-and-proud, so to speak.
For more than two centuries, Americans have fought divisive social, political, and constitutional battles over laws regulating sex, obscenity, contraception, abortion, homosexuality, and same-sex marriage. These conflicts have been divisive in no small part because of the central role religion has played in shaping our laws governing sex. As the Framers of our Constitution anticipated, the incorporation of religious beliefs into the secular law inevitably poses fundamental questions about individual freedom, the separation of church and state, and the meaning of our Constitution.
To understand the roots of these conflicts, it is helpful to have some sense of the ways in which different societies addressed these issues in the past and how our own attitudes toward sex came into being. How did social, cultural, religious, and legal views of sex evolve from the ancient world to the founding of the American republic?
The Hebrew Bible contains no condemnation of sexual pleasure, “no paeans to celibacy,” and no suggestion that the sin of Adam and Eve was sex, rather than disobedience of God. Like the ancient Greeks and Romans, the ancient Hebrews did not prohibit masturbation, premarital sex, oral or anal sex, prostitution, contraception, pornography, lesbianism, or abortion.
When Jesus of Nazareth preached in Galilee and Judaea after 30 AD, the options open to him and his followers were already clearly mapped out on the landscape of Palestine. Toward the Dead Sea, the wilderness of Judaea harbored sizable settlements of disaffected males. Ascetic figures whose prophetic calling had long been associated, in Jewish folklore, with sexual abstinence, continued to emerge from the desert to preach repentance to the nearby cities. One such, John the Baptist, was reputedly a cousin of Jesus. The fact that Jesus himself had not married by the age of thirty occasioned no comment. It was almost a century before any of his followers claimed to base their own celibacy on his example. At the time, the prophetic role of Jesus held the center of attention, not his continence. His celibacy was an unremarkable adjunct of his prophet’s calling.*
Every sexual act is born out of evil, and every child born out of evil is born into sin. It is through sex that man passes on sin from one generation to the next.
At the time when Americans adopted their Constitution, a time when they fervently believed in “the pursuit of happiness,” there were no laws in the United States against obscenity, there were no laws restricting the use of contraceptives, there were no laws forbidding the dissemination of information about contraception, and, following the English common law, there were no laws restricting abortion pre-quickening. Moreover, although there were still laws on the books against consensual sodomy, those laws had not been enforced anywhere in the United States for almost a century. That was the world of the Framers.