Q&A: Chicago Law Professor Geoffrey Stone Talks About "Sex and the Constitution"

Sex and the Constitution_978-0-87140-469-5.jpg

There are two notable things about University of Chicago Law Professor Geoffrey R. Stone’s Sex and the Constitution:  Sex, Religion and Law from America’s Origins to the Twenty-First Century.  First, the book is too modestly titled.  It is not only about sex and the Constitution, but most major issues related to sex and the Constitution, including gender discrimination, abortion, same-sex issues, contraception and obscenity.

Second, it is an insightful history of the “social issues” that dominate 21st century American culture, politics and identity -- and a sophisticated and complex analysis of the Supreme Court’s treatment of them.  The book’s subtitle -- “Sex, Religion, and Law” -- is significant, because behind so much legal and cultural conflict lies a battle over religion and its use of the state to enforce its moral codes.  In a particularly trenchant passage, Stone sets out the basic conflict:

Battles over obscenity, contraception, abortion, sodomy, and same-sex marriage sharply divided Americans along religious lines.  Those holding certain religious beliefs about the sinfulness of such behavior, ranging from Lyman Beecher . . . to Jerry Falwell, vigorously insisted that such conduct must be forbidden as “immoral,” whereas those holding different . . . beliefs, ranging from Samuel Roth to Estelle Griswold . . . insisted with equal vigor that government cannot constitutionally restrict . . . freedom merely because some -- or even most -- people believe their conduct to be “sinful.”

As the power and pull of organized religion has waxed and waned in America, the success of claims for greater individual freedom and self-expression have followed the same pattern.  And although the last 50 years have, by and large, encouraged freedom and discouraged religious authoritarianism, Stone reminds us that the future is promised to neither side. 

With its incisive examination of the arguments -- and bedrock values -- of each side in this never-ending American cultural war, Sex and the Constitution goes to the heart of the subject more than any other recent exploration.  And it persuasively warns against believing that any easy resolution of the matter is in the offing.  The National’s James Kaplan talked with Professor Stone about his important new book.

Q: You make a unique observation in the book: that in a sense, most Supreme Court cases involving “sex” -- abortion, obscenity, LGBT discrimination, and more -- are really first amendment religion cases, in that they represent a religious majority (at least on a local basis) inflicting its religious beliefs on a non-believing minority through the state.  Does that seem accurate?  And if so, does that strengthen the claim of those who would refuse service to, for example, gay people in defiance of laws now that require it, on the grounds that they are now the persecuted religious minority that needs protection from majoritarian non-belief?

A: One thing I demonstrate in the book is that most laws dealing with such issues as abortion, obscenity, contraception, and discrimination against gays and lesbians are the result of efforts by religious groups in society to conscript the secular law to impose their beliefs on other individuals who do not share their faith. Interestingly, at the time the Constitution was adopted, there were no laws against obscenity, contraception or abortion, and laws against sodomy were almost never enforced except in cases of rape of children. The generation of the Framers was shaped by the values of the Enlightenment, and the enactment of such laws would have seemed wholly inappropriate to them given their fierce commitment to the separation of church and state. It was only later in our history, in the nineteenth century, that religious groups began to impose their beliefs on the law and enacted statutes forbidding such practices. Such laws certainly violated the spirit of the establishment clause of the Constitution [which prohibits government from strongly supporting a religion].

I agree that the free exercise clause of the First Amendment [which protects the right to practice a religion] should be understood, as it was under the Warren Court, to invalidate laws that interfere with the right of individuals to lead their lives in accord with their sincerely held religious beliefs, unless the government has a compelling justification for requiring them to act otherwise. When the Warren Court first enunciated this doctrine in the case of Sherbert v. Verner, it understood that mainstream religions would never find themselves in this position, because laws that interfered with the exercise of their religious beliefs either would not be enacted or, if enacted, would carve out exemptions for mainstream religions. Prohibition, for example, exempted the sacramental use of wine. Thus, the doctrine recognized in Sherbert was grounded in the understanding that minority religions should receive the same respect in this regard as mainstream religions. Unfortunately, the Supreme Court effectively overruled Sherbert some thirty years later in an opinion by Justice Antonin Scalia in Employment Division v. Smith, which dealt with the issue of whether members of the Native American Church had a right to use peyote, which was, for them, a part of their religious practice.

Q: Chief Justice Roberts' argument in his dissent in Obergefell v. Hodges, the landmark same-sex marriage case is, to say the least, an interesting one.  Is he really saying the Constitution has nothing to say about states blatantly discriminating against gay people, even after we have conceded they have equal rights under the Constitution?  Or is he saying such discrimination is justified by the fact that same-sex marriage is not “rooted in the traditions and conscience of our people”?  Could he somehow distinguish the strongly held traditional beliefs that justified discrimination against African Americans and women?

A: From a constitutional perspective, these are somewhat different issues. In Obergefell, the majority, in an opinion by Justice Anthony Kennedy, reasoned that because the Court had long recognized that marriage is a fundamental right that is “rooted in the traditions and conscience of our people,” restrictions on the right must be tested by the same standards that apply to restrictions on other constitutional rights, such as the freedom of speech or the freedom from cruel and unusual punishment. Kennedy held that the government did not have a sufficient justification to override the individual’s right to marry a person of the same sex.

Chief Justice Roberts disagreed with this reasoning. In his view, the right to marry is fundamental, but it is only the right to marry someone of the opposite sex that is “rooted in the traditions and conscience of our people,” not the right to marry someone of the same sex. Thus, in his view, the fundamental right to marry was not implicated in this case. The difference between them turned, then, on how we define the breadth of the concept of marriage.

The other possible justification for the decision in Obergefell was that laws discriminating against gays and lesbians, like laws discriminating against African-Americans, women, and Irish-Americans, are especially problematic under the Equal Protection Clause and must be invalidated unless justified by a substantial government interest. Although I think that is a compelling justification for invalidating laws that discriminate on the basis of sexual orientation, the Supreme Court has not expressly addressed that question. Thus, for example, whether a state can constitutionally prohibit homosexuals to be teachers in the state’s public schools, on the theory that their presence in this role would upset and distract students, remains an open question for someone like Chief Justice Roberts.

Q: The history of the Court’s involvement in the issues dealt with in Sex and the Constitution goes back and forth, doesn’t it, with periods of tolerance mixed with periods of assent or even support for persecution and discrimination.  Do you believe there is a trend in at least modern Supreme Court jurisprudence on these issues?  If so, is it reversible based on the luck of the electoral college and the personal health and well-being of the Justices who are serving on the Court at any particular time?

A: As you note, and as the book traces in detail, there have been significant shifts over time – in both directions – in society’s acceptance of various sexually related practices. There were no laws against obscenity at the time of the Founding, then such laws were enacted as a result of the efforts of religious moralists like Anthony Comstock in the late nineteenth century, and then during the course of the twentieth century and to the present the meaning of those laws are narrowed to the point where today there are effectively no constraints on the availability of sexual expression on the Internet.

The Court’s approach to these issues has also shifted over time, although for the last sixty years it has moved increasingly towards the recognition of constitutional rights in the realm of sexual expression, contraception, abortion, and the rights of gays and lesbians. Since the election of Ronald Reagan, though, a succession of Republican presidents, influenced largely by the rise of the so-called “Moral Majority,” have attempted to appoint Supreme Court justices who would move the Court back in the opposite direction. Indeed, that was a central reason why Senate Republicans refused to confirm Chief Judge Merrick Garland to succeed Justice Scalia.

The critical moment will come if Donald Trump gets to replace one of the three most senior members of the Court – Ruth Bader Ginsburg, Anthony Kennedy, or Stephen Breyer. Should he have the opportunity to replace one of those justices with another committed conservative justice like Neil Gorsuch, then the Court will finally have a majority of five justices who are very likely to cut back very sharply, and probably overrule, Roe v. Wade. This would, in my view, be a tragedy for as many as a million American women each year who would then be forced back into the dark and dangerous world of back-alley abortions.

Q:  Do you think it is noteworthy that libertarianism in America is mainly a right-wing traditionalist movement that takes its doctrine seriously only in the economics sphere, and leaves the matters discussed in your book almost wholly unaddressed?  Indeed, libertarians like Senator Rand Paul (R-Kentucky) are frequently against abortion, for example, and are lukewarm at best on LGBT issues.  Do you have any thoughts about why that is true?

A: For the most part your assumption is correct. So-called libertarians seem much more concerned with encouraging small government when it comes to economics than when it comes to personal freedoms.

Q: Which do you think is a truer statement: The history of America exhibits a growing freedom for the individual in matters of personal expression, including the right of sexual expression, identity and decision-making; or the history of America represents an up and back movement regarding all elements of personal freedom and expression, with periods of expansion and contraction, and a never-ending battle between liberty and suppression.  After reading your book, both statements seem at least partially true.  Do you agree?

A: Both statements are true, but I think the general trend over time has been, at least viewed from the present perspective, in the direction of great personal freedom and equality. But nothing is written in stone, and these issues – or at least some of them – remain deeply divisive in our society. I would like to think that history moves inexorably in a positive direction, but anyone who holds such a belief knows nothing of history.

Jim Kaplan is a long-time Chicago and New York lawyer whose practice has involved corporate law and financial services and regulation, as well as criminal law and appellate advocacy.  He is a University of Chicago Law School graduate and a former student of Professor Stone (1978-1981).