Liberalization’s Limits from Griswold to Roe
Before 1965, U.S. federal, state, and local laws policed and produced sex in countless ways. Bans on oral and anal sex prohibited particular uses of specific body parts, promoting others in the process. Restrictions on adultery, bestiality, cohabitation, fornication, homosexuality, and incest distinguished between unacceptable and acceptable partners, as did statutes dealing with those deemed incapable of consent. Laws that regulated interracial marriage, marriage involving minors, marriage between members of the same family, plural marriage, and same-sex marriage identified some liaisons as less legitimate than others. Statutes criminalizing rape and assault constructed boundaries between involuntary and voluntary sex. Laws related to prostitution and other forms of sex work constituted some purposes of sex as less valid than others. Restrictions on sex in the military, prisons, and public space created institutional and geographic parameters for illegal and legal intimacies. Abortion, birth control, and sterilization statutes influenced the potentially reproductive consequences of sex, as did laws concerning illegitimacy, inheritance, and parenting. Sex was also policed and produced through laws on disorderly conduct, indecency, nudity, obscenity, sexual psychopathy, and sexually transmitted diseases. Meanwhile, in policy areas such as education, employment, health, housing, immigration, taxation, and welfare, legislation that seemingly had nothing to do with sex encouraged and discouraged specific forms of sexual expression.1
The overwhelming majority of these laws remained constitutional in 1973 after the Supreme Court’s rulings in Griswold, Fanny Hill, Loving, Eisenstadt, and Roe. The Court had struck down state laws forbidding the use of contraceptives by married couples, prohibiting interracial couples from marrying, criminalizing the distribution of birth control materials to the unmarried, and imposing strict restrictions on abortions. The Court had also limited the application of obscenity laws by protecting materials with “redeeming social value.” These were major achievements, but the Court had not overturned a vast array of laws related to sex, leaving them presumptively constitutional.