Source of book: Borrowed from the library
FAIR WARNING: this is going to be a long post, because there is so much in this book.
Sex and the Constitution is a history of the regulation of sexuality in the United States, beginning with Colonial times. Actually, it begins even further back than that, looking at the ancient world - the Greeks, the Hebrews, and the Romans - to examine the roots of Western beliefs about sex, and how these have interacted with the law.
It is difficult to know where to begin with this, because there are so many facets to the issue, but let me start with something that struck me in a big way:
The history of sex and the law in the United States is, at its core, a battle for the separation of church and state.
That is, does a particular religion have the right to force its purity laws on everyone else.
We are still fighting that battle today, of course. This is the heart of the Culture Wars™ as most American Evangelicals see it. (Although racism is the other driving force behind them.) In order to fight this war, Evangelicals rely on gross dishonesty, historical revisionism, and stirring up fear and hate against those outside the tribe.
As this book documents - using an impressive 100 pages of citations to primary sources - the propaganda I and other kids raised in Evangelicalism were fed about the founding of our nation is nothing less that absolute horseshit on a stick. It is lies the whole way down. In order to maintain their fantasy that the US was founded as a theocracy - a “christian nation,” they have to lie about the history, and about the reason we have the constitution we have, and about the beliefs of the founders. I have already mentioned in a post the flagrant revisionism of people like David Barton, but this drives it home even more. Our nation was not founded to further Fundamentalist religion, but to protect everyone else FROM Fundamentalist religion.
Our constitution - and specifically the clauses providing for freedom of religion and from the establishment of religion - was a reaction to the nastiness of the Puritan Era, from the witch trials to the gender policing to the obsession with sex. (Pretty much every Fundamentalist religion is obsessed with gender roles and sex. It is how they are able to feel self-righteous while engaging in stuff like slavery and genocide.)
This tension between Enlightenment values and Fundamentalist religion is as much a key part of the story of the United States as the tension between our ideals (All Men Are Created Equal) and our practice of white supremacy that continues today.
In reading the history, I was struck by the way the cycle has played out. In essence, we have gone between periods where freedom and Enlightenment values increased, and those where sexual puritanism gained ground. First was the actual Puritan era, which was our first run of laws regulating sex - which for most of Western history was a religious matter, not something the state enforced. In what I do not believe is a coincidence, this first era coincided with the start of the Native American Genocide and the establishment of race-based slavery. The two ideas are bound to each other and always have been. Racism and puritanism are kissing cousins.
Following the Puritan Era, the pendulum swung the other way, and the founding fathers intentionally placed that wall of separation. (Again, the primary sources on this are unequivocal.) And, contrary to popular belief, the 1700s were a time of relative sexual freedom here. For example: abortion was universally legal. Contraception was readily available. While “sodomy” (and it doesn’t mean what we were taught it means) was not prosecuted for consensual acts between adults for 100 years.
This changed, again, in the early 1800s as a result of the Second Great Awakening. The history here, again, is tied up with racism. The abolitionist movement gained steam, and part of the reaction against it was a new Puritanism focused on outlawing contraception, abortion, and erotica. (And also alcohol…)
The third wave was after the end of Reconstruction, which saw Prohibition and Anthony Comstock. Not coincidentally, this was also the rise of the KKK, rampant xenophobia, and arguably the most restrictive era for the availability of basic sexual knowledge in history. I’m sorry, but this was utter insanity.
The fourth wave is the one that we are still in, with the rise of the Religious Right. Again, 100% connection with racism. The movement was founded in opposition to the Civil Rights Movement, and combines sexual puritanism with nasty racism and xenophobia. The two always go together.
I took three pages of notes on this book, so I will try to work through the quotes and ideas in order. I highly recommend reading the book, though, as my discussion is inferior to Stone’s thoroughly researched and persuasive history.
Crucial to understanding why American Christianity is so fucked up about sex is to understand the history and context. The ancient world - and that includes the ancient Hebrews - didn’t obsess about sex the way Christianity later would. Of course, the ancient world was pretty nastily patriarchal, so female sexuality was pretty tightly regulated - women were property and had to behave - but sexuality itself was considered natural. I was never taught that contraception existed before the modern era. I had to learn that on my own, and it was rather enlightening. We also were not told that abortion has existed for 4000+ years, that it has been widely practiced, and was mostly uncontroversial before “quickening” well into the modern era.
Well, except for the Catholic Church, and to understand THAT, you need to understand where Christianity went off the rails regarding sex. I don’t have time or space to get into all of it, but Stone details the interaction of Christianity with a number of pagan philosophies: Stoicism, Neoplatonism, Gnosticism, and Manichaeism. These hugely influenced certain early theologians, namely Augustine and Jerome, and set the stage for a millennium of hostility between religion and human sexuality. As Stone puts it (following overwhelming historical proof):
But in the process of beating back the forces of Stoicism, Neoplatonism, Gnosticism, and Manichaeism, Christian orthodoxy absorbed many of their values. Indeed, by the beginning of the fifth century the Christian attitude toward sex had been more profoundly shaped by the influences of pagan mysticism than by the more earthy views of the classical Greeks, the Romans, or the ancient Hebrews.
For Augustine, who had an emotionally incestuous relationship with his mother, human sexual desire was evil. Reproduction itself was not a sin, but reproduction required the sin of sexual arousal and pleasure to happen. Ultimately, we are STILL paying the price for Augustine’s sexual dysfunction more than 1500 years later, in our American politics. We are fucked up because he was fucked up.
Not only did Augustine see sexual arousal and pleasure as inherently sinful, he decided that it was THE original sin. Original Sin™ is sexually transmitted. We are all sinners because our parents had to sin to create us. As I said, SO. FUCKED. UP.
[Note: I first encountered this idea in Tolstoy’s novella, The Kreutzer Sonata. I read it in my teens, and it was probably the first time I really understood that the Evangelical teachings on sex were not benign, but inhumane and cruel and beyond fucked up. I am so glad I read it then, because that epiphany allowed me to enjoy my courtship with my wife, and our increasing intimacy and love throughout the process.]
In order to come to this conclusion, Augustine took and twisted the story of The Fall. Here is how Stone, who displays a solid knowledge of both The Bible and theology, puts it:
Through the brilliance of his intellect, the plague of his personal demons, and the influence of his early Manichaen beliefs, Augustine transformed an ancient Hebrew story about disobedience into a spiritual condemnation of human sexuality. In so doing, he profoundly shaped the future of Western culture and law.
After Augustine, Christianity literally spent a thousand years believing and teaching that sex was only for procreation, and that enjoyment of sex was evil. This is literally the foundation of our sexual beliefs, and the core issue that plagues our legal approach to sexuality.
Christian dogma, backed by the threat of hellfire and damnation, attained not only religious but social, legal, and political authority. A distinctive concept of sin became church doctrine. This concept was derived, not from the tablets of Moses or the teachings of Jesus, but from the sexual quirks and mystical philosophies of a handful of men who had lived in the twilight years of the Roman Empire. What in 500 A.D. had been a theological exegesis was transformed over the next thousand years into a code of sexual conduct that framed the lives of princes and peasants alike.
Honestly, I knew this was true at some level after the first time I read The Bible cover to cover. Most of what we consider “christian” sexual teachings have absolutely nothing to do with anything found in the book, but comes from the sexual hangups of a handful of dirty old neurotic men that lived over a thousand years ago. As becomes clear later in the book, misogyny is so bound up with the teachings that essentially, the needs and desires of women are still disregarded in our current century where sex and the law interact.
And now, we get into the Middle Ages. Again, trying to understand modern sexual hangups without knowing the history is difficult. So, start with Augustine: “all sexual arousal and pleasure is sinful, but procreation is okay.” From that flows a plethora of religious rules about sex. And religious (and sometimes civil) penalties for violating those.
I think a lot of people would be shocked to realize just how many of their sexual practices were forbidden by the Medieval church. For example, touching a woman to orgasm was a sin - and sometimes a crime. Oral sex was a sin and later a crime. Sex in a position other than “missionary” was a sin. Seeing one’s spouse naked was a sin. Sex during menstruation was a sin.
Oh, and how about this? How long was the penance for certain acts? This gets really freaky. So, if you fucked your mother, that was a relatively minor offense, because it was “normal, procreative sex.” So, three years of penance. BUT, what if you had oral sex with your wife? THAT was much worse, so four years of penance. Or what if you had anal sex with her? That was even worse than oral sex, and you got seven years. In other words, doing it in the butt was more than twice as bad as literally fucking your mother. As I said, freaky and weird.
Oh, and here was another fun bit. Masturbation was a sin, but kind of the least of sins, since it was pretty much the only outlet in an era when people married late. But, because of the misogynist conception of what was actually “sex,” a quandary arose. Female masturbation didn’t waste semen, so did it count? And, more hilariously, most of these men (always men, of course) who wrote the rules, seemed to believe that women couldn’t experience sexual pleasure without a dick in them. So they obsessed about dildos. I am not making that up. And, because of the belief in the inferiority of women, they believed that women were a moral hazard to men. This idea STILL resonates in Modesty Culture - which I wrote a whole series about.
Too much to quote, but Stone quotes extensively from church leaders and theologians throughout. He isn’t making this up - he has primary sources to prove it. It is astonishing the detail of sexual regulations even within marriage. When and how to have it. And, of course, the constant admonition that it was to be for procreation only, and that deriving pleasure from it was a sin. One can only assume that the problem of women not orgasming during sex stems in part from this thousand-year-long belief. Men who are taught that pleasure is sinful will hardly bother to educate themselves in how to give such pleasure to their partners.
Everything, and I mean EVERYTHING stems from that. Because sexual pleasure - or sex for any reason other than procreation - is a mortal sin, OF COURSE contraception is forbidden. And let’s follow the logic. Because of a (deliberate) misinterpretation of the story of Onan, spilling one’s semen deliberately was seen as a capital crime - literally homicide. Otherwise, why was Onan killed? Thus, contraception was murder. Which is how you get statements like those who use contraception of any sort (including coitus interruptus) are “killers of their own children.”
Does this sound familiar? Well, the rhetoric now is used mostly for abortion, although it is making a comeback in Fundie circles as applied to any female-controlled contraception. The line is easily drawn, however. Abortion was considered a form of contraception. (Although, oddly, abortion within 40 days of conception was considered a lesser sin than contraception.) But, keep in mind that neither contraception nor abortion was considered a crime. You didn’t get arrested for it, but you might have to do church penance.
The story of Onan, as understood by the earlier church, wasn’t about contraception. And really, if you read the whole story, it is clear that it isn’t about that at all: it is about a brother’s refusal to ensure the support of a widow. But, as Fundies do, it was made into a story about why sex is bad.
As I noted above, while the Catholic Church was really fucked up about sex, all these sexual offenses were essentially religious sins, not civil crimes. (Except for rape and child abuse.) It was with the Inquisition that this changed.
This was the first time that the Church had enacted distinctly Christian sexual morals directly into the secular criminal law. What previously had been a religious sin [sodomy] was now a capital crime. With the Inquisition, the Church transformed the secular law into a tool of Christian doctrine.
And this is where the story of Sex and the Law really starts. It is also what the Founding Fathers were talking about when they discussed the separation of church and state, and the establishment of religion. It wasn’t just “don’t have an official state church,” but also “don’t force religious purity rules on everyone else.”
Moving to the Protestant Reformation, one positive development resulted: Protestants rejected the Catholic view of sex for procreation only, and allowed that marital sex was to provide “mutual society, help, and comfort.” Having fun was okay. (And, along with this came acceptance of contraception.) In England (the main source of American jurisprudence), this also came with a loosening of the civil law - a return to the idea that most sexual behavior was a moral and religious, not a legal matter. Again, rape and child abuse were exceptions, because those involved non-consent.
Culture too changed. In the pre-Puritan era in England, it is estimated that half of all brides were pregnant. This was standard practice: there was an understanding that if the woman got pregnant, they would marry. The Puritans hated this, and insisted that the civil law needed to be enlisted to force people to follow their sexual rules. This was the first battle in the ongoing culture wars.
Likewise, at this time, medical texts reflected the view that a fetus didn’t receive a soul until “quickening,” about the halfway point in pregnancy. Thus, abortion wasn’t considered to be a sin unless done after quickening. This remained the view until the 19th Century.
I should also mention that the first laws against “sodomy” do not mean what people think either. Sodomy was about the act, not who did it. So, have you had oral sex with your wife? You are a sodomite - and could be prosecuted for it as late as the 1980s in Texas. (See below…) Ever had anal sex with your wife? Masturbated her to orgasm? Had sex with her when she was menstruating? You are a sodomite. Just pointing that out. (And, clearly, I have violated a number of prohibitions during my marriage, including having sex for pleasure.)
The Puritans changed this dramatically, of course. At the height of their influence, in Massachusetts, fully 40 percent of ALL criminal prosecutions were for “Offenses against God and Religion” - much of that for sexual activity. I find this oddly similar to our current era, when a shockingly high percentage of our criminal prosecutions are related to mind-altering substances. This is, like sex, a prosecution of offenses against “morality,” not protection of others.
Moving ahead to the founding of the United States, this is where the horseshit I was taught kept looking higher and deeper the more I read.
Did you know that when the Constitution was drafted, only 10-20% of Americans were affiliated with a church? Apparently, the ghastly experience with the Puritans turned most of the population against religion. (It’s happening again, guys.) The idea that we are a “Christian nation” is so beyond ludicrous once you actually read what was said and look at the circumstances.
Stone traces the line of thought from the Enlightenment, through the Founding Fathers, and to the Constitution. So many of the quotes seem so very relevant and necessary today. British writer John Toland (often quoted by various Founding Fathers) pointed out that in order to be credible, a religion must be logical and it must be consistent with the laws of nature. (Wow, we need that one in Evangelical circles right now…) Benjamin Franklin, very much a Deist, had some excellent things to say as well. How about this one?
“If we look back into history for the character of the present sects in Christianity, we shall find few that have not in their turns been persecutors, and complainers of persecution. The primitive Christians thought persecution extremely wrong in the Pagans, but practiced it on one another. The first Protestants of the Church of England blamed persecution in the Romanish church, but practiced it against the Puritans. These found it wrong in the Bishops, but fell into the same practice themselves.”
We can see this play out today, where Evangelicals bitch and moan about how persecuted they are, while calling on the law to bless their persecution of LGBTQ people, immigrants, and adherents to other religions. Nothing has changed.
Days before his death, Franklin described his own beliefs.
“Here is my creed. I believe in one God, the Creator of the Universe: That he governs the World by his Providence. That he ought to be worshiped. That the most acceptable Service we can render to him, is doing good to his other Children. [These are] the fundamental Principles of all sound Religion.”
Preach it, Brother Franklin!
John Adams is often the best liked Founding Father by conservatives, but he too had little use for theocracy.
“There is a germ of religion in human nature so strong that whenever an order of men can persuade the people by flattery or terror that they have salvation at their disposal, there can be no end to fraud, violence, or usurpation.”
Ultimately, this is why I cannot be an Evangelical ever again. I do not in any way believe that they have the power of salvation to give or withhold, and I will not participate in the fraud and violence they seek. Adams also came to reject what I also believe are the two most poisonous doctrines - the ones that are foundational to evil religion. These are Original Sin and Predestination. In other words, Calvinism. Combined, they lead to a belief in a cruel psychopathic god who takes delight in the eternal torment of most of the beings he has created. When you believe that, well, slavery and genocide are pretty minor faults…
These beliefs led to our Constitution being written as expressly secular, and neutral as to matters of religion. Our government was not to be the enforcer of religious rules, but the protector of the common good. Again, Adams made this clear in the Treaty of Tripoli in 1797, which expressly affirmed that “the Government of the United States...is not in any sense founded on the Christian religion.” So much for theocracy.
The section on Thomas Paine (another huge influence on the founding of the United States) was interesting as well. I particularly took note of his castigation of those who used The Bible as an instruction book.
“[F]or what can be greater blasphemy than to ascribe the wickedness of man to the orders of the Almighty?”
I rather came to this conclusion a number of years ago. Peter Enns was a lifesaver at that time, because he echoed Paine in acknowledging that the morally troubling parts of scripture are best explained by the authors using “God Said” as a cover for their own evil and immoral behavior.
Thomas Jefferson gets some page time as well, including for his work (not mentioned as often as the Declaration of Independence) on the Virginia Statute for Religious Freedom, which was the precursor to our own First Amendment. Jefferson expressly stated that the Christian denominations would have to stand on an equal footing with “the Jew...the Mahometan, the Hindoo, and infidel of every denomination.” Completely contrary to what Fundies claim, the Founders most certainly did NOT intend for religious freedom to extend only to Christians. That claim is a bald faced fucking lie, and those who repeat it are fucking liars. And I will continue to call them out on it. (My former pastor hated it when I did so...that was probably the beginning of the end of our relationship.)
Also fantastic is the quote from James Madison calling for a separation of church and state.
“During almost fifteen centuries has the legal establishment of Christianity been on trial. What have been its fruits? More or less in all places, pride and indolence in the Clergy, ignorance and servility in the laity, in both, superstition, bigotry and persecution.”
“What influence in fact have ecclesiastical establishments had on Civil Society? In some instances they have been seen to erect a spiritual tyranny on the ruins of the Civil authority; in many instances they have been seen upholding the thrones of political tyranny: in no instance have they been seen the guardians of the liberties of the people. Rulers who wished to subvert the public liberty, may have found an established Clergy convenient auxiliaries.”
If you haven’t read the whole thing, it is one badass document. And a thoroughgoing condemnation of the unholy alliance between toxic religion and racist politics we see in the marriage of Trump and Evangelicalism. (Also seen in the way the German Protestant church collaborated with the Nazis…)
On a related note, Madison recognized that a free society required both political power to the people and yet also a means of protecting minorities from the tyranny of the majority. Legislatures can indeed be too responsive to the demands of their constituents. It is easy for the majority to put their private interests ahead of the public good and the rights of others. (That’s the American Right in a nutshell…)
“Whenever therefore an apparent interest or common passion unites a majority what is to restrain them from unjust violations of the rights and interests of the minority?”
Madison answered this question with the idea of checks and balances. Others insisted on a bill of rights. Still others would support the concept of “judicial review,” that is, the ability of the courts to countermand legislation seen as a violation of the rights of minorities. The history of this is fascinating. In retrospect, the worry of Madison and others that a bill of rights would mean that rights would end up limited has turned out to be valid. After all, it wasn’t that long afterward that the Puritanical strain in the American character would greatly curtail the sexual freedom that existed at the time the Constitution was put in place.
I would like to close this section of the book with an extended quote.
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.
It is astonishing to me that here in the 21st Century, we are STILL struggling to bring our laws back into harmony with those in existence at the time of our founding. Nearly 250 years later, we are STILL trying to undo the damage of the Puritans and Comstocks and Assholes for Jesus™. Seriously. Obscenity laws didn’t really loosen up until the advent of the internet - once I was already an adult. We are STILL having a fight over whether scientifically accurate information about contraception should be provided to children and pregnant women. Abortion restictions are far greater than at the nation’s founding. And LGBTQ people are more likely now to be denied housing, employment, goods and services.
Next up: The Second Great Awakening and the return to a view of sexual pleasure as sinful.
One thing this book did was to clarify for me a question that is so often glossed over - or outright falsified. Evangelicals like to do this thing where they praise the Second Great Awakening, and also point out that abolitionists came to prominence. They hope that you see that, and assume that the new-found religion in America led to people speaking out against slavery. And that is a big mistake.
In reality, what happened might be analogized to what is going on right now with protests against police brutality. Sure, white Evangelicals are trying to cram their vision of sexuality (namely, the criminalization of abortion and open persecution of LGBTQ people) down every else’s throat, and we have protests against police brutality. But the Religious Right is NOT on the side of the protesters.
Likewise, the Evangelicals of the Second Great Awakening were NOT abolitionists. Sure, there were some Evangelicals who were abolitionists, just like their are Evangelicals today who oppose racialized police brutality. But in both cases, the overwhelming majority of white Evangelicals wanted to silence - and eventually cast out - those who spoke out against racial injustice. Instead, the Evangelicals of the Second Great Awakening turned their efforts toward two obsessions of today’s Religious Right: sexuality and substances that make one feel good. Yep, that’s right. Impose sexual restrictions, and fight against alcohol. This movement lasted nearly 100 years, finally running out of steam with the catastrophe of Prohibition and two world wars.
As with their spiritual ancestors, the Puritans, the Evangelicals of the Second Great Awakening were obsessed with female sexuality - women were believed to be dangerous and in need of tight controls. And, as with Augustine, they preached against sexual desire itself as sinful. In the case of women, they claimed that they should not have access to contraception or knowledge of contraception - or they would go out of control.
This condemnation applied not only to sexually-explicit expression, but also to information about birth control, which they deemed particularly dangerous because birth control “removed the fear of pregnancy.” They maintained that this fear was “necessary for the protection of female virginity.” The aroused female, they preached, could not be trusted, for following the example of Eve, she would naturally be driven to “satisfy her lusts.”
I won’t even get into Sylvester Graham and his “eat these foods to avoid masturbation” and other weird ideas of the time. However, I do want to mention Anthony Comstock, who is one of the major figures of this era. Comstock is...creepy as hell. He truly comes across as the pervert that makes the kids all uncomfortable, whose personal sexual dysfunction leads to his overcompensation by controlling everyone else. Hey, kind of like sexual predator and cult leader Bill Gothard! Even at the time, Comstock was considered creepy by many. Civil Rights lawyer Morris Ernst called him a “psychotic masturbator-with-guilt.” ACLU cofounder Arthur Hays noted that he “was surrounded in his home by three women--a repressed wife, years older than himself, a bed-ridden sister-in-law, and an adopted girl child who was weak-minded...No wonder he thought that any modest woman would undress only in the dark.” And really, he was notorious for sitting through the entire sex show before making arrests. Dude was fucked up. Unfortunately, we are still paying for the damage he did - and most Evangelicals, whether they know it or not, vote in favor of returning to the insanity of his era.
And let’s be honest about what the Comstock Era meant in practice. Basically, any talk of sex or bodies was forbidden. Can’t talk about sex, can’t talk about pleasure, can’t share information about contraception. That is all off the table. Ideas or information about sex cannot freely shared, but must be completely shut down and criminalized, lest “sin” happen. There was pushback, of course, as not everyone during the Victorian Era was a prude. Sadly, however, Comstock held the political power. Those who disagreed made a cogent argument, however, one that would eventually (during my lifetime at long last) prevail.
[Civil rights advocates] all challenged Comstock’s regime on the ground that both the store of public knowledge and the integrity of the individual benefitted from the free circulation of information and ideas about sex. They insisted that sex was a legitimate and important subject for free expression and that it should not be silenced because some people were fearful, ignorant, prudish, and intolerant.
Those four words really summarize the Puritan/Fundie approach to sex: “fearful, ignorant, prudish, and intolerant.”
As I noted above, the Second Great Awakening and the Victorian Era were both obsessed with keeping women “in their place.” On particularly notable example of this was the dramatic change in the legal approach to abortion. Remember, abortion was legal at the founding of our country. But that changed in the 1800s.
There were several factors in this. One was the general opposition to contraception and fear of female sexuality generally. But another was a raw misogynist power grab.
Perhaps the most important cause of the dramatic late nineteenth-century shift in the legal approach to abortion was the aggressive stance taken by the fledgling American Medical Association...The newly founded AMA sought to wrest control over health care from the non-professionals, and especially from midwives, who had traditionally been the primary health care providers for pregnant women.
Unsurprisingly, this was also a racist move. The AMA was all white, and African American women were typically cared for by their own midwives. By making this illegal, black women could be completely denied pregnancy care, except what they could get from the now illegal midwives risking their freedom by breaking the law. Yes, this was openly Eugenics, and a total dick move. But this is why I cannot take any opponent of abortion seriously if they are unaware of this history - or in denial of the racist and misogynist origins of abortion criminalization.
And the misogyny...oh my goodness. Stone quotes extensively from writings of the era, and the belief that women were both subhuman and sexually dangerous was so widespread. And, as I have found in my own experience in Fundamentalism, the issues of contraception and abortion are inseparable from a belief that women have a place - in the home and away from commerce or politics.
Moreover, he [physician Horatio Storer] added, women were born to bear children. “This...is the end for which they are physiologically constituted and for which they are destined by nature.” It therefore followed that for a woman “intentionally to prevent the occurrence of pregnancy, otherwise than by total abstinence from coition,” or intentionally to bring it, when begun, to a premature close, are alike disastrous to a woman’s mental, moral, and physical well-being.”
Yep, that is exactly what anti-abortion people say today - because obviously they know why women exist, and what they should be permitted to do or not do, and feel free to dictate what women experience.
Storer further insisted that women must remain within their “God-given sphere.” Namely, they needed to stay at home and serve their husbands, not make money or take a role in political life.
By the way, it bears mentioning again that the criminalization of abortion did NOT stop abortions. They continued, but became much less safe for the woman.
Comstock not only pushed for laws restricting access to information about sex and contraception, he viciously prosecuted anyone who dared to defy him. He literally boasted about how many of those he pursued committed suicide. One of his victims, the author of a rather conservative sex manual for married women, left a letter behind after her suicide.
“Perhaps it may be that in my death more than in my life, the American people may be shocked into investigating the dreadful state of affairs which permits that unctuous sexual hypocrite, Anthony Comstock, to wax fat and arrogant, and to trample upon the liberties of the people.”
Also worth mentioning is that many of those like Margaret Sanger, who defied the law to distribute information about contraception, pointed out that the wealthy had full access to contraception, information, and abortions. It was the poor who suffered. And, because of the inability to control family size, they were trapped in poverty. This is still very much true today.
Comstock was incensed, of course. And said the same horseshit I hear from Fundies and Right Wingers today:
“Can’t poor people learn self-control? Can’t everybody, whether rich or poor, learn to control themselves?...Are we to have homes or brothels?”
Horrors! People having sex for reasons other than procreation! Another doctor opposed to birth control explicitly stated this, insisting that wives who wanted to have sex without risk of pregnancy were no better than prostitutes. Father Charles Coughlin, a notorious anti-semite, among other faults, called non-procreative marital sex as “legalized prostitution.” Yeesh. I guess I married a prostitute then. Again, this hasn’t gone away. And it is absolutely the same shit we got from Augustine: “sexual pleasure is sinful.”
By the 1920s and into the 1930s, there was a significant backlash to Comstock and Victorian prudery. Even religious organizations (except for the Catholic church) decided to support contraception and free exchange of information about family planning. Changing public opinion drove this change. I have to share this quote from a pro-birth-control publication, which seems so true today. (Modern American Christians should take note…)
“If religion does not assist man to use his reason to adapt to his environment, but rather tends to make it more difficult for human beings to coordinate their activities and to develop healthy and aspiring views of life, it becomes one of the chief forces that block progress, and increases human suffering and misery.”
This is a huge reason why religion is hemorrhaging members - particularly young people - right now. Rather than working with reason, adapting to a changing environment, religion is actively opposing progress and human thriving.
Speaking of human thriving, the book has several fascinating chapters discussing the history of LGBTQ rights, and how the law has treated them. Just like sexual issues generally, it is pretty clear that things were much more liberal back when the United States was founded than they were when I was a kid. Although “sodomy” was illegal - and remember, it also applied to oral or anal sex between a husband and wife - it was never actually enforced against consenting adults. People mostly “looked the other way” when it came to gays. In fact, all it takes is reading the literature of the era, all the way up through the last couple decades of the 19th Century, to see that homosexual and homoerotic relationships were a normal part of the culture. Walt Whitman’s poetry is just one example. Bayard Taylor (author of my favorite story about 19th Century communes) wrote a novel in 1870, Joseph and His Friend, which is interpreted by many as an argument for recognition of same-sex relationships, praising love between men as “as tender and true as the love of women.”
It was in the late Victorian Era that this began to change, again, as part of the push by Comstock and others to classify homosexuality as a mental illness. This was a shift from seeing it as a religious matter - and thus something outside the realm of the secular law - to seeing it as a problem with an individual that made him or her dangerous to society.
In defining “pervert,” psychologists came up with some, er, interesting ideas. Which seem to be strongly connected to the idea that sexual pleasure was inherently bad. For example, one definition included as perversions “sexual desire at an abnormal time of life” as well as “sexual desire that is not of such a character as to lead to the preservation and increase of the species.” Hmm. So old people shouldn’t want sex. And having oral sex with your wife was perverted too. Sound familiar? Augustine all over again, but now with a secular and pseudo-scientific gloss.
And then we get to lesbianism. As I have mentioned, sex between two women is NOT even mentioned in the Old Testament, and the passage that might refer to it in the New Testament was interpreted for the first few hundred years of Christianity as referring to a cult where women penetrated castrated men with dildos. And indeed, female homosexuality has tended to be a footnote throughout most of history. (With the worry that they might use dildos, of course.) Things changed in the 19th Century, however, with the rise of feminism. Suddenly, with women having the ability to support themselves and determine their own relationships, lesbians because a huge threat to male power. Of course, because women were infantilized, it was said that they all had a predisposition - a weakness - to being seduced by other women, and thus they should be kept out of “unwholesome environments” such as educational institutions and political organizations. After all, lesbians were sexual predators who threatened the “natural standing and dominance of men.”
Simultaneously with these new ideas came two competing movements. First was the rise of gay culture as America urbanized. As the Village People sang, it was places like the YMCA that became centers of gay society.
Second was legal persecution of LGBTQ people, particularly through the vague charge of “disorderly conduct.”
The crime of disorderly conduct was a vaguely constructed catchall designed to empower the police to impose a certain conception of proper behavior in public places. For the most part, it was used to restrain conduct that might upset upstanding citizens. Although there was no law declaring it a crime for gays or lesbians to associate with one another in a cafeteria or public park, to dance with someone of the same sex, or wear clothing usually associated with the other gender, all of these behaviors were now swept up under the omnibus charge of disorderly conduct.
Not mentioned, but related, is that “disorderly conduct” was also used at this time to persecute African Americans for things like talking back to a white person, or staying on the same sidewalk, or looking directly at a white woman. It is an excuse for the majority to use criminal charges to persecute minorities.
By the way, this is still an issue in our time. I can say from the experience of relatives that two girls holding hands at school will be cited for violating rules about displays of affection, while hetero couples are allowed to eat each other’s faces without consequence. This has been a significant issue in California law, which protects LGBTQ people from this kind of discrimination. Many states do not have this, however, and the modern version of “disorderly conduct” is applied to persecute gay couples.
This combination of pathologizing LGBTQ people and the use of the law to persecute them resulted in significant hardship. Whereas in the 19th Century, LGBTQ people would have been considered to be amusing and harmless, by the 1930s, they were looked on as predators and psychopaths. As a result, gays had to go into hiding. As historian George Chauncey observed, “the state built a closet in the 1930s and forced gay people to hide in it.” Even today, with significant strides made to permit LGBTQ people full access to society - like they had at our nation’s founding - there is still a significant portion of the population who continues to demonize LGBTQ people as predators and psychopaths and out to get the children. It is good to remember that this is a modern issue, created when religious hangups were given the blessing of “science” and the law turned loose to persecute minorities. This is one reason I left Evangelicalism and will never return. I had not realized the depth of the hate they had.
It is sad to think that, despite the progress that has been made, LGBTQ people have yet to recapture the freedom they had when our nation was founded. While gay marriage is a bit of a new idea, LGBTQ people have in many parts of our nation, a greatly diminished ability to have a job, obtain housing, have access to services and goods and generally be who they are without persecution, compared to what they had back then.
[Side note: this is a good reason to read literature from the past. Although the language isn’t always as explicit, it is pretty clear that our prudish attitudes toward erotica, homosexuality, and sex in general, were not shared by our ancestors.]
The first pushback against these new and vicious views of LGBTQ people started with the Kinsey Reports. (Yes, there were two, one for males, one for females.) It turned out that private behavior did not match public views. People were in the closet, but were still having sex in there. I found particularly amusing the fact that Sexual Behavior in the Human Female was even more controversial than the male one, in part because the news that women could achieve orgasm with other women (and thus without the aid of a penis) was in itself stunning to most Americans. And, say what??? It is hard to believe that the understanding of female sexuality - which ancient peoples knew - was so thoroughly lost by the 1950s. Even now, I strongly suspect that most Fundie young men couldn’t find a clitoris with a map. (Thank god for the internet. I got a mostly good sex education, but had to learn how to pleasure a woman on my own.)
Even more controversial than Kinsey’s research was that done by Evelyn Hooker (hey, a woman!) She administered psychological tests to men, half of whom were exclusively heterosexual, and half who were exclusively homosexual. She then submitted the answers to a blind panel of experts, who rated the psychological health of the respondents. Not only was there no difference in health between gay and non gay - the experts couldn’t even tell who was who. The claim that gays were psychopathic and ill didn’t hold water. This infuriated Fundies, of course, who wanted justification for their hate. And guess what? You can STILL hear lies from just about every Evangelical pulpit on this issue. The hate and viciousness runs so very deep, and no amount of reality will pierce the ideology.
The interesting part of the history of the law and sex starts in the 1950s, when the US Supreme Court started taking on the many laws regulating sexual expression and information. I learned about a lot of these cases during my Constitutional Law class in law school, but it was fun to see the cultural background - as well as to read from a different perspective than my Fundie school, which seemed all too nostalgic about the Comstock era.
Again, it is good to remember that the government regulation of “obscenity” is a modern phenomenon. Prior to Comstock, smut was readily available.
Through most of history, whether in ancient Greece and Rome, the Middle Ages, the Renaissance, the Enlightenment, or the American colonies, society made no serious effort to interfere with the dissemination of sexual expression, however bawdy, erotic, or pornographic it might be.
Shakespeare and Chaucer would have been appalled at how America outlawed their works under Comstock. No bawdy jokes? What lunacy is this?? But we went from this general availability of smut to outlawing scientific information about human reproduction. That’s just nuts.
The even crazier thing is, although SCOTUS gradually loosened obscenity laws over time, what finally pushed us back to where we were at the time of the nation’s founding wasn’t the law, but technology. With the Internet, it was no longer practical to ban sexual content - particularly with much of it produced overseas and thus outside of US jurisdiction. As the book puts it, “The law has simply been overwhelmed by technology and by changing social mores.”
The book also points out that residents of states whose citizens have the most conservative positions on religion are the most likely to visit porn sites. And Mormon Utah consumes the most porn per capita of any state. Stone draws the obvious parallels between the Comstock era and the Culture Wars™ of today. A bunch of dirty, perverted old men, wracked with guilt and internal conflict, take out their own demons on those who do not share their religious obsessions.
A particularly strong chapter is the one which examines the concept of rights not expressly included in the Bill of Rights. It is clear from an earlier chapter that the Founders intended that there be other rights not expressly named, but that were nonetheless important. (See: Amendment 9) From the 1950s on, SCOTUS started to look at certain laws through the light of whether they violated these unwritten rights. For example, could the state pass a law that forbade married couples to have sex more than once a month? To forbid them to have more than two children? The Constitution doesn’t say so, but most people would recoil at the idea that government could invade this very private realm. So why could the government outlaw contraception? That case was the first, but pretty much every sexual freedom case since then has relied on this idea of a “right of privacy” one one’s own life and body.
Again, one thing I loved about this book was that it discussed both sides of the cultural debate on sexual issues. I was raised with a very biased, very one-sided, and often grossly dishonest portrayal of cases like Roe v. Wade. I would never have known that abortion was legal for most of human history had I not read outside what I was taught. I certainly would never have known that it was legal when our country was founded. Or that it was the sexist AMA that pushed to outlaw it while putting midwives out of business.
And, had I not done my own research, I would never have known that the Southern Baptist Convention supported abortion rights and approved of Roe v. Wade...until 1978. (The founding of the Religious Right on a pro-segregation platform, followed by a massive propaganda campaign to make abortion the only political issue that mattered is an interesting and horrifying incident in our nation’s history.) And yes, Protestant denominations from the United Methodists to the Southern Baptists openly endorsed legalizing abortion back in the 1960s and early 1970s. Many of the early networks that provided illegal but safer abortions before Roe had plenty of clergy and laypersons who did so because of their religious beliefs. This is well established history - history which is openly suppressed and lied about in Evangelical circles.
The first indication that abortion would become the single most polarizing political issue of my lifetime came in 1972 in New Yourk City. Catholics organized and made abortion the single issue they would vote on. Because no other group was so single-minded, Catholics - a minority of voters - ended up determining an election. The racist founders of the Religious Right took notice, and adopted the playbook. Thus, pre-Roe, attempts to legalize abortion largely stalled, despite a large majority of Americans being in favor of it.
Moreover, those opposed to abortion threatened quite credibly to act as single-issue voters, and they communicated that intention to elected officials with perfect clarity. As a result, many legislators came to understand that although a majority of citizens supported legalizing abortion, when election day came around committed single-issue voters could nonetheless vote them out of office.
Nixon too, would take notice, and by changing from support of abortion rights to an anti-abortion stance, he was able to guarantee northeastern Catholic votes to the GOP. He then pivoted and got the other single-issue voters - southern white racists opposed to desegregation - and brought them into the fold. Thus, during my lifetime, the twin causes of racism and opposition to abortion have kept the GOP in power, and allowed two powerful groups to further policies that lack the support of a majority of Americans.
A couple of things really stood out in the book’s extended discussion of Roe v. Wade. First was the flagrant sexism. Jay Floyd, attorney for the State of Texas, began his opening argument - against a pair of female lawyers - with this turd:
“Mr. Chief Justice and may it please the court. It’s an old joke, but when a man argues against two beautiful ladies like this, they are going to have the last word.”
Fortunately, the justices were not amused.
The second thing which stood out was a particular line in Harry Blackmun’s personal notes about the case, some of which made it into the opinion. He noted first that abortion in the first trimester was far less risky than pregnancy - something that Evangelicals still lie about constantly. Second, he noted that 64 percent of Americans believed that the decision was between a woman and her doctor, not the state.
But most fascinating was his observation that criminalization of abortion was a “relatively recent phenomenon, without roots in the English common-law tradition.”
It was thus apparent, he concluded, that “at the time of the adoption of our constitution, and throughout the major portion of the 19th century,... a woman enjoyed a substantially broader right to terminate a pregnancy than she does in most States today.”
Criminalization of abortion was a late 19th Century thing, arising out of the same movement that criminalized sharing information about contraception or talking about sex. It was and is deeply sexist and tied to a belief that a woman’s role in society is to stay home and serve her husband and leave the power to men.
But you will never hear that from Evangelicals. You will never hear that their own denominations supported abortion rights. You will never hear that it was legal when the United States was founded - and for thousands of years before that. You will never hear that Blackmun cited the longstanding practice of the Common Law to leave reproductive decisions to the woman.
Because they lie.
They lie about every fucking thing when it comes to abortion. They lie about the history. They lie about Margaret Sanger and what she said in a letter. (She said the exact opposite of what they claim.) They lie about the science. They lie about the medicine. They lie about the history of their own fucking religious tradition. They even lie about what their own scripture says about abortion.
They fucking lie.
They lie without conscience and without remorse. No amount of proof to the contrary will make them reconsider. Because abortion is their identity, their ideology. And, if we are honest, if they change their minds about abortion, they would have to either stop voting for the Republican party (which is anti-Christian in policies from top to bottom) or they would have to admit that the real reason they love Republicanity and Trump and all his hate is that….they are every bit as racist and hateful as Trump is. And that is the inconvenient truth. Abortion is the way that they can be evil (like James Dobson) while feeling self righteous. And it is perfect for that, because most - 75% of them - have no need for an abortion because they are either male or post-menopause. And the other 25% have abortions at higher rates than the rest of society. But they lie about that too.
I am so very, very sick of the lies.
[Note: the last straw for me, and why we left our church of 18 years was that I will not be fucking lied to. And we were. Leadership went behind our back and over our objection to bring hate group propaganda into Sunday School. That was it. I will not be fucking lied to.]
Oh, and one more thing from Blackmun’s opinion: he noted that there is no consensus on the central question of when a fetus becomes a person. This is no minor matter. Through most of church history, theologians were divided as to when the body received the soul. Some thought it came with the first breath (the “breath of life” as God gave to Adam) and those who believed it happened at “quickening,” about halfway through the pregnancy. The discussion of abortion before quickening was always connected with whether masturbation or coitus interruptus also “ended a human life” by wasting semen. And the idea of actually criminalizing abortion, was, as already stated, a late 19th Century thing, bound inextricably with opposition to ALL contraception. Clearly, there was no theological consensus that abortion should be a crime. And that is yet ANOTHER thing Evangelicals lie about. Here is how Blackmun put it:
“[T]hose trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus.”
And that is still true today, despite the lies of Evangelicals.
One more fascinating fact about abortion. At the time that Roe was decided, a solid majority of Americans approved of decriminalizing abortion. And they approved of Roe by a large margin - 52% to 41%.
In contrast, as the book points out, when the Loving case legalizing interracial marriage was decided in 1967, 72 percent of Americans disapproved of that decision. In the list of SCOTUS decisions that were controversial at the time, Roe isn’t even on the list. It wasn’t controversial. And it didn’t really become a thing for Protestants until five years later, with the founding of the Religious Right on a pro-segregation platform. I say that intentionally. Just as Loving was controversial, the real driving force behind the Religious Right is and always has been racism. Abortion is just the way they feel self-righteous while pursuing racist policies.
Other commentators maintain, though, that it was not Roe itself that triggered this backlash, but a calculated campaign by Republican Party operatives to exploit Roe for partisan political gain. These commentators point out that political strategists in the late 1970s leveraged Roe as part of a carefully crafted campaign to energize evangelicals and to bring them into the Republican Party. In their view, the centrality of Roe in American politics was not an inevitable consequence of the decision, but the result of a strategic campaign to turn Roe into a divisive and a highly emotional political symbol, along with the issues of pornography, homosexuality, and women’s rights, in what would come to be known as the “Culture Wars.”
Stone tries to be fair and balanced here, but I am very much of the opinion that this is the correct interpretation. I grew up in this era. I remember all the propaganda and the strategic political campaign by para-church organizations, from the Moral Majority to Focus on the Family to nasty hate groups like the American Family Association. And I would add that while pornography, homosexuality, and feminism were the “official” bogeymen that we were taught to fear, simmering (mostly) under the surface was a deep and vicious racism, which bubbled to the surface with the rise of Donald Trump. It is not an accident that white Christians are the most racist people in our society. Racism is the reason the Religious Right exists, and electing a White Supremacist like Donald Trump is the inevitable - indeed desired - result. Which is ultimately why 81% of white evangelicals voted for him and why they continue to support him. I lived this. This is how the Culture Wars™ work. They were a political creation - and a highly effective one.
In the 1984 election, Christian Right leaders dropped all pretence of nonpartisanship and, in an unprecedented effort to achieve the necessary majority in Congress, went all out for the Republican Party. Eighty percent of evangelicals voted for Republican candidates up and down the line. This represented a profound and historic shift in the American political landscape. Only a decade earlier, a majority of evangelicals had supported the Democratic Party.
And let’s not forget the misogyny at play too. Stone mentions notorious racist Phyllis Schlafly and others in a discussion on the Religious Right and opposition to feminism generally. I can attest that this is true to - in my own life and relationships, misogynistic anti-feminism has been the most destructive force. One of the reasons was expressed by Beverly LaHaye (wife of the coauthor of the laughably bad revenge fantasy, the Left Behind series):
“[The] woman who is truly Spirit-filled will want to be totally submissive to her husband.”
And of course stay home, rather than have a job, dress a certain way, and so on. That is not, has never been, and will never be, how my marriage works. But this is illustrative of how inseparable the Culture Wars are from beliefs about gender hierarchy. Ultimately, the Republicans got what they wanted - a guaranteed voting bloc - but Evangelicals sold their souls to politics, and are now paying the price in the loss of the next generation.
I want to look a bit at the aftermath of Roe from the perspective of abortion numbers, which Stone does as well. The fact is abortion numbers have gone down a lot. And most of that drop - nearly all - can be attributed to a huge drop in unintended pregnancies, particularly among teenagers. The percentage of unintended pregnancies terminated by abortion has remained fairly constant, actually. (For what it is worth, the three things proven to reduce both unintended pregnancy and abortion are (1) readily available contraception (2) scientifically accurate sex education (3) consent-based sex education, which changes expectation of toxic masculine behavior.) There are two fascinating statistics in the book. First is that the biggest game changer we could have in reducing abortion dramatically is contraception. Given the failure rate when used correctly, a combination of free and easily available contraception combined with universal education in correct use would result in the drop of annual abortions in the United States from one million to a mere 75,000. That would be a huge victory for the anti-abortion crowd, right? You would be wrong. Because, of course, the anti-abortion crowd is vehemently opposed to both education and contraception. (Hey, is that Comstock’s ghost?) Which is solid evidence that the issue for the anti-abortion crowd isn’t abortion per se, but female sexuality. Without that “threat of pregnancy” women would just be prostitutes, right?
Here’s the second statistic, which is even more interesting. The central factor in abortion rates is poverty. This is not controversial. On the one hand, impoverished women lack access to contraception and training in their use, so contraceptive use is lower and unintended pregnancies are much higher than for middle class or wealthy women. On the other hand, wealthy and middle class women are much more likely to have an abortion when they have an unintended pregnancy. Let that one sink in a bit.
So here is the thing. If we merely got low income women to use contraception in the same manner and to the same degree as other women in society, we would eliminate 300,000 abortions. Just with that. But again, programs to provide education and contraception are opposed by those who claim to be against abortion.
But many religious and other morality-based groups oppose programs designed to promote sex education and contraceptive use among the poor, either because they deem contraception immoral or because they fear that greater access to contraception will lead to greater promiscuity. The cost of those beliefs is literally hundreds of thousands of otherwise avoidable abortions each year.
And this is why I say that I can count on one hand the number of people I know who are anti-abortion but genuinely pro-life in a meaningful sense. Most are anti-abortion, and obsessed with punishing women for having sex they disapprove of. (Which includes “fucking while poor” by the way.)
Moving on again, the last couple of chapters are about gay rights, and the series of major decisions which have occurred during my lifetime.
After the 1930s forced gays into the closet, it was a while before any significant on the legal front occurred. Ironically, it was the AIDS crisis (one of the formative events of my childhood) that forced change. Because AIDS initially ravaged the gay community, getting (and dying) of AIDS usually had the effect of “outing” its victims. Suddenly, people of my parents’ and grandparents’ generation who honestly thought they didn’t know any gay people discovered that...yes they did. They were friends, relatives, doctors, musicians, actors, scientists, neighbors, pastors, people who sat next to them in church. Rather than a group of psychopaths and predators, gay men turned out to be...normal people you see everywhere. I think this is the biggest explanation for the dramatic change that has occurred during my lifetime in attitudes towards LGBTQ people. My parents - and especially my grandparents - grew up with everyone in the closet, and with messaging from both religious leaders and the psychology profession telling them that LGBTQ people were mentally ill and dangerous. That was their upbringing. For me - and much more so for my kids - we grew up knowing gay people. Gay and trans people are visible now - they were always there, of course, just hidden.
I have talked a bit about AIDS and the appallingly cruel response Christians and conservatives had to it, in my review of Angels in America. One of Ronald Reagan’s worst legacies was his response to AIDS - his lack of a response, actually. Perhaps only Trump’s lack of a response to Covid is on the same magnitude of cruelty and callousness. Two names stand out as heroes who stood up to Reagan and did the right thing. One was Surgeon General C. Everett Koop, who was largely prevented by Reagan from addressing AIDS using the resources of the Federal government, but who used the power of persuasion to get accurate information about AIDS into the hands of the public. His advocacy for proper sex education and use of condoms made the Religious Right hate him - despite the fact he was a devout Christian.
The second name was a bit fun to read: Dr. Anthony Fauci. Hey, he’s been in the news lately! He was instrumental in the first medications to treat AIDS. We shouldn’t forget that he has served with distinction for decades, under both Republican and Democratic administrations, and that his qualifications, competence, and faithful service had never been questioned by either party…..until he told the truth that contradicted Trump. It is grossly unfair the slander of him that I have seen from right wing acquaintances who are smart enough to know better.
Something new I learned from this book is that, prior to World War II, gays served in the military without issue. It was during the moral panic about homosexuality that culminated in the McCarthy hearings that they were banned from service. This cost the military something around 50,000 servicemen and women. That’s problematic. Also problematic is that the ban persisted until 1993, and even then, “Don’t Ask, Don’t Tell” only permitted closeted gays and lesbians to serve. During the 17 years until President Obama finally repealed DADT, 13,000 servicemen and women were discharged because of their sexual orientation. And this despite the fact that the policy had clearly hurt the military. The American Psychological Association, which had removed homosexuality as a mental illness 25 years prior, did a study which concluded that “empirical evidence fails to show that sexual orientation is germane to any aspect of military effectiveness.” That’s kind of a “Captain Obvious” moment, but still. Furthermore, military leaders during the Iraq War discovered that “the cost to the nation of discharging gay and lesbian service members--both financially and in the lost of expertise (most dramatically in the discharge of more than sixty Arabic- and Persian-speaking translators)--had significantly damaged the nation’s effectiveness in the war.”
As the scientific evidence mounted that the conception of LGBTQ people as “diseased” was baloney, maintaining laws that discriminated against them became increasingly untenable. It wasn’t helped by the fact that the Religious Right was targeting them with hateful rhetoric and advocating for laws that specifically targeted them. An example of that sort of a law was Amendment 2 in Colorado, which forbade cities and municipal governments from protecting LGBTQ people from discrimination. Because it was a constitutional amendment, it would require a supermajority to change, thus uniquely posing an obstacle to gay folks to petition the government for protection. Justice Anthony Kennedy was unamused by the claim that this was anything less than animus directed at a minority.
In reaching that result, Kennedy observed that a law making it “more difficult for one group of citizens than for all others to seek aid from the government” was virtually “unprecedented” in American history, and that it was therefore impossible to escape the inference that the special disadvantage imposed on homosexuals by Amendment 2 was born, not out of any rational effort to further a legitimate state interest, but out of “animosity” toward gays and lesbians. Indeed, Kennedy reasoned, Amendment 2 seemed “inexplicable by anything but animus toward the class it affects,” and as the Court had previously established, “‘a bare...desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.’”
And this is the crux of the issue. The Religious Right is consumed with hate toward LGBTQ people, and is intent on barring them from full access to society. Each and every one of these laws - including the so-called “religious freedom” laws, which are in reality a license to persecute an unpopular minority.
This then leads into what I think is the core question facing us today. Are we going to continue to let the beliefs of one particular religion dictate the law to those who do not subscribe to that religion? Because this IS a religious freedom issue. Just not how Evangelicals claim. LGBTQ people do not, as a general rule, believe in the Evangelical sexual purity rules. They either have no religious beliefs, or, very often in my experience, different religious beliefs. Gay Christians believe that their relationships and sexuality are in accordance with how God created them, and acceptable to God’s call on their life. Evangelicals, believing as usual that they and ONLY they know God’s will for everyone else, want to deny those who do not share their beliefs full access to society. Full stop. And that is the problem.
So, back to the book, Chapter 19 opens with an interesting hypothetical:
Suppose several police officers lawfully search a married couple’s home for illegal drugs, but they see the couple engaging in oral sex in their bedroom. The couple are prosecuted and convicted for violating the state’s anti-sodomy law, which prohibits any person to engage in oral or anal sex.
You know what? This could happen to me. All it would take is, say, a no-knock warrant for the wrong house, and it is entirely possible that they might see me going down on my wife. Which was prohibited by most sodomy laws. Including the one in...Georgia. As in, in this case, Bowers v. Hardwick, which is the case that affirmed the right to criminalize gay sex (and oral sex!) that was decided in...wait for it...1986. That’s astonishing to me, honestly, that we were still criminalizing something happening between consenting adults in their own home. And my law school professors approved of this decision, unfortunately. It wasn’t until 2003 that the Supreme Court finally invalidated anti-sodomy laws in Lawrence v. Texas. Literally, during my eldest kid’s lifetime, a person could do time for having sex in their own home. That is horrifying to my kids’ generation certainly. And to me too, now that I am old enough to be sexually active. I really don’t think my having oral sex is something that is the government’s business. Whether I was having it with a man or a woman.
It seems uncontroversial, but Justice Scalia had a flaming meltdown over it in his dissent. While I have respect for Scalia in some ways (he was a defender of the freedom from search and seizure, for example, and a fine writer), it is clear that he had a vastly different view from mine (and most of us non-Fundies) about the right of religious people to control those who do not share their beliefs. Legal commentator Dahlia Lithwick (one of my favorite legal writers over the last two decades), observed Scalia’s caustic and nasty diatribes against Kennedy in the aftermath of Lawrence, and concluded:
“[Scalia must have been] feeling besieged and marginalized by the constitutional wall that’s been erected between church and state,” a wall, she added, that “keeps the devout” from dictating the rules of behavior to all other citizens.
Oh, so very much yes. And this is why Evangelicals melted down over this and other recent cases. Their ability to control everyone else is indeed being eroded. I think that is a good thing. They, clearly, do not. This is a fundamental disagreement over whether they should have the power to use the force of law to control others. It also plays out on a smaller scale. In my own life, relationships are irretrievably broken because my parents (my mom particularly) felt entitled to dictate to my wife how she should dress, and whether she should be permitted to work for a living. It is the astounding sense of entitlement and self-righteousness that leads one to think any of that is their goddamn business. Just as it is none of their business what I, or anyone else, does with their genitals with a consenting adult. My freedom to follow the dictates of my religion as I see fit are not trumped by their religious beliefs.
Later, in Obergefell, Kennedy went even further.
In the final paragraphs of his opinion, Justice Kennedy turned to the lurking issue of religion. Kennedy recognized that the Constitution protects the freedom of those who adhere to certain religious doctrines to argue that same-sex marriage is sinful and that people should not enter into such relationships. But, he insisted, as he had in Romer, Lawrence, and Windsor, the Constitution does not permit the state to deny individuals the freedom guaranteed to them by the Constitution in order to accommodate the religious beliefs of others.
Your freedom ends when it encroaches on mine. And you don’t get to deny me access to society because I do not share your beliefs.
For the most part, Stone tries hard to be neutral. However, he is unable to do so when discussing Scalia’s rhetoric, and I believe he is justified.
Scalia loved to claim that his was the most “neutral” method of interpreting the constitution, and that everyone else was engaging in “judicial activism.” This is disingenuous at best, given Scalia’s long history of striking down popular laws that protected vulnerable people. I’ll quote Stone at length.
If justices like Frankfurter and Harlan had condemned the majority opinion in Obergefell for violating the principle of judicial restraint, one would at least have had to respect the sincerity of their commitment to that principle. But Chief Justice Roberts and Justices Scalia, Thomas, and Alito are in no way adherents to this principle. To the contrary, in decision after decision they have exercised an often fierce form of judicial activism, a form of activism that is completely incompatible with their self-righteous paeans to judicial restraint in Obergefell.
These four justices, for example, have embraced aggressive interpretations of the Constitution in order to hold unconstitutional laws regulating campaign expenditures and contributions, authorizing affirmative action programs, regulating the availability of guns, protecting the voting rights of racial minorities, and promoting racial integration. Put simply, these four justices are not in any principled way committed to the doctrine of judicial restraint.
What the vehemence of these attacks suggests is that, their protestations to the contrary notwithstanding, the four dissenting justices were deeply and morally offended by the very idea of same-sex marriage, and their fury got the better of them. In this sense, it would be fair to say that, more than the justices in the majority, the dissenters in Obergefell were responding to the case not in a calm, measured, dispassionate, professional manner, but in a fit of pique.
I’ll also note that the same justices seem to favor a certain specific religion - Scalia was all too eager to tell Native Americans they couldn’t use peyote in their ceremonies without losing their jobs. Just saying.
Stone also notes various reasonable grounds for objecting to Obergefell - these are discussed at length, and with an even-handed approach. So it isn’t that Stone is merely a partisan for gay marriage (although he does support it.) Rather, he notes that the conservative objection seems, at its core, to be rooted in the sort of religiously motivated moral offense at the very idea of LGBTQ people being equal.
And that is how Stone analyzes an argument that Kennedy did not adopt, but which could very well be the basis for future decisions - and has been used by a number of lower courts.
A broader and even more compelling rationale for the Court’s decision would have been the argument, adopted by several lower courts post-Windsor, under the Equal Protection Clause. The argument is straightforward: Gays and lesbians have been subjected to a long history of invidious discrimination, sexual orientation is not a matter of choice, gays and lesbians have consistently had their interests dismissed and overridden in the majoritarian political process, and sexual orientation has nothing to do with an individual’s ability to perform in society.
I don’t think those basic premises are even debated outside of Fundistan. But Fundies still exercise a grossly disproportionate amount of power in our political process. One of those ways is through the shameful incident of Merrick Garland. This still sticks in my craw, and it is one reason that I will never trust the GOP or their voters ever again. They have no moral principles beyond the accumulation of raw power and the use of it to harm others. Stone points out that the history of SCOTUS nominees shows that a long list of presidents from George Washington through Ronald Reagan have had nominees voted on - and confirmed - in the last years of their presidencies.
Nonetheless, with issues like abortion and gay rights firmly in mind, the Senate Republicans chose power over principle. This was unconscionable-- but it worked.
And that is where the book ends. Where we go from here is an open question. It is entirely on the table that if Trump wins the electoral college (it is clear he cannot win the popular vote), then it is entirely plausible that we will go back further to the Comstock Era. Abortion may very well be re-criminalized, leading to further mass incarceration. (Remember, abortion didn’t go away when criminalized, and it hasn’t in any country where that has happened.) We may see the right to persecute LGBTQ people enshrined in our jurisprudence. We will almost certainly see further erosion of racial minority rights. None of these are supported by a majority of Americans. The GOP cannot win on ideas - they have few, and the ones they have are wildly unpopular. So all they can do is leverage single-issue voters, and stir up racism and xenophobia.
In the long run, I think they lose. Certainly, Evangelicalism is headed for a demographic cliff. The Trump Era has been an apocalyptic catastrophe for the reputation of religion in America, laying bare the seething hatred and desire to harm that is endemic to their belief system. They might have considered taking a lesson from the Puritans - and from the Founding Fathers, who called for a rational, compassionate, and pragmatic religion. One where “love your neighbor” was the rule, not “do as we say with your genitals.”
This book has been quite the trip, and really confirmed (and provided primary sources as proof) of my developing understanding of the history of our nation. In particular, it has exposed the never-ending lies that Evangelicals tell to hide the truth about who they have been - and who they are now. These discoveries have further confirmed that I was right to have left Evangelicalism, and only wish I had known the truth earlier and left before our kids had to experience it.
I highly recommend reading this book - and also following up the footnotes. Many of the quotes are part of really excellent founding documents, court cases, and journalism over the history of our country. The full context is often enlightening. Stone writes well, and really brings the stories to life. As an advocate for freedom of and from religion, he isn’t exactly neutral in this debate - and I would doubt anyone who was “neutral” when it came to Anthony Comstock or Joseph McCarthy - they were thoroughly evil, nasty, and creepy dirty old men. But his history is, unlike Evangelical revisionism, thoroughly supported by evidence. His core argument is solid: the laws restricting sex and sexuality were not part of our nation’s founding, but were the result of a specific religious and political movement which culminated in historically aberrant levels of control over speech and private sexual behavior. We are even now struggling to return to the level of freedom that we had when our nation was founded, and Fundamentalists are still fighting tooth and nail to retain their “right” to control the rest of us.