Liberals and leftists have generally sought to put the results of the 2016 presidential race in one of two historical contexts. Some have cast the ascendance of a man who essentially built his political career on the racist claim that his predecessor was not a natural-born citizen as a blip in American history, a short setback on the road to greater equality and justice. Others have seen the event as part of a larger pattern: The history of struggles for freedom in America has been one of constant backlash, a series of hard-won victories followed by equally hard-fought defeats.
Sex and the Constitution, a new book by the legal scholar Geoffrey R. Stone that charts the laws governing sexual behavior and expression from the ancient world to present-day America, provides ample evidence for this latter view of the election. The book, which pays special attention to laws concerning contraception, abortion, obscene speech, and gay and lesbian sexual activity, is a story not of inexorable progress toward greater freedom, but rather a different kind of narrative, in which the laws and conventions around sex have moved from more to less permissive and back again many times over.
Take contraception. Common in ancient Greece, it was denounced in the fifth century by Augustine, who pioneered the view that sex is permissible only for the purposes of procreation. Medieval “penitentials”—written religious guides that helped priests hear confessions and assign penance—“banned married couples from engaging in sex during the wife’s menstrual period, during pregnancy, during the daylight hours, while they were naked, in any position other than the missionary position, in church, on Sundays, and on holy days.” As Stone observes, this “covered most of the year.”
Such strictures relaxed with the arrival of the Enlightenment, and by the 1860s, condoms, diaphragms, and IUDs were widely advertised in the United States. The birth rate dropped significantly between 1800 and 1900, indicating that couples were increasingly practicing birth control. But the Second Great Awakening brought a renewed religious zeal to the country and, with it, new restrictions on sexual behavior. The federal Comstock Act of 1873 made it a crime to send contraceptives or instructions for their use through the mail, and numerous “little Comstock” acts introduced similar restrictions in the states. The laws’ namesake, the anti-obscenity crusader Anthony Comstock, believed that birth control encouraged immorality because, as Stone writes, it “reduce[d] the risk that individuals who engage in premarital sex, extramarital sex, or prostitution will suffer the consequences of venereal disease or unwanted pregnancy.”
While the majority of Americans supported the legalization of birth control by the 1930s, pressure from the Catholic Church kept the Comstock acts on the books and put contraceptives out of reach for many, especially poor women. In 1961, Estelle Griswold and Charles Lee Buxton opened a birth-control clinic in New Haven in defiance of Connecticut’s especially restrictive laws. They were arrested, and their case went to the Supreme Court, which decided in Griswold v. Connecticut that the state law was unconstitutional because it infringed on the privacy rights of married couples. In 1972, this decision was expanded when the Court ruled in Eisenstadt v. Baird that the Constitution didn’t permit states to treat married and unmarried couples differently with respect to contraceptive laws. In effect, the ruling defined a constitutional right to use birth control. And again we arrived at a moment of greater sexual freedom after a long dark age, but one whose laws and customs concerning sex were not that different from those of the classical world.