Academic journal article Michigan Law Review

Sex and Religion: Unholy Bedfellows

Academic journal article Michigan Law Review

Sex and Religion: Unholy Bedfellows

Article excerpt


SEX AND THE CONSTITUTION: SEX, RELIGION, AND LAW FROM AMERICA'S ORIGINS TO THE TWENTY-FIRST CENTURY. By Geoffrey R. Stone. New York and London: Liveright Publishing Corporation. 2017. Pp. xxxii, 529. $35.


In a lecture delivered in 2008, University of Chicago professor Geoffrey Stone1 confessed to the audience that he had been working on a book tentatively titled "Sexing the Constitution," a project of "reckless ambition."2 Almost ten years later, the book has hit the stands, renamed Sex and the Constitution: Sex, Religion, and Law from America's Origins to the TwentyFirst Century, at a time when debates about sex and religion are more heated than ever. Beginning with a survey of law and sexuality in Greek and Roman times, the book ends with an analysis of the Supreme Court's same-sex marriage decisions and their aftermath. The breadth of the work is staggering.

Stone covers so much territory in this book, including (but definitely not limited to) Saint Augustine's role in the evolution of Christianity's views on sexuality and sin; Anthony Comstock's role in the widespread passage of repressive laws banning pornography, birth control, and abortion; the limited role Roe v. Wade3 actually played in fermenting the rise of the pro-life movement; the history of the gay rights movement in the United States; the dramatic increase in public toleration for same-sex relationships and marriages; changes in communications technology that have undermined efforts to control explicit sexual images; methods of constitutional interpretation- the list goes on and on. Any of these topics could be-and have been-the subject of their own books. In the final analysis, though, Stone's primary thesis becomes clear: religious groups and individuals have, at various times throughout Western history, used the secular law to foist their beliefs upon nonbelievers.

Stone suggests that he disapproves of this religious influence in the law, but he wisely recognizes the limits of any argument that this influence is unconstitutional. The Supreme Court has never struck down a law because religious groups and individuals have advocated for the law on religious grounds, and Stone contends that to do so would violate both the Free Exercise and the Freedom of Speech Clauses of the First Amendment. He argues that courts should-and do-consider whether there is any justification for a law aside from religious reasons, and some laws will fail under this inquiry. But he recognizes that the universe of such cases is very small. His most ambitious argument is that laws that are based on "morality" alone are unconstitutional "[b]ecause of the clear religious overtones implicit in such 'moral' justifications" (p. 331). But this leaves open the possibility that laws will survive constitutional scrutiny as long as the government can come up with some other justification.

A second, much less developed theme that emerges from the history Stone shares with us is that many of the laws discussed in the book reflect anxiety and apprehension about the appropriate gender roles of men and women. Many organized religions, especially those that are most active and influential in our political debates, reflect rigid views of sexuality and gender. This suggests that rather than attack sex-related laws as attempts by religious groups to foist their beliefs on secular society-an endeavor Stone himself recognizes is largely doomed to failure-it may be more productive to attack these rigid conceptions of gender roles directly through equal protection challenges. Although this approach will not necessarily lead to the results that progressives desire in every case, it is more promising as a practical matter.

Part I of this Review focuses on Stone's attempt to correct some common misunderstandings regarding the history of laws relating to sex. Stone's focus on history naturally raises the larger issue of what role history should play in interpreting the Constitution. …

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