After the so-called sexual revolution of the 1960’s and 70’s, as sexual irregularities became more prevalent or at least more talked about, our judges, and to some extent our legislators, began moving from a broad tolerance of departure from mainstream values concerning sexual activity to a general denial that there are any mainstream values from which to depart.
This evolution has taken place mostly through low-profile cases, so that up to now the erosion of respect for sexual standards in legal decisions has hardly been noticed except by people professionally concerned with it. But what has happened deserves more attention than that. The law, in the words of the great Justice Holmes, is the witness and external deposit of our moral life. Those who are concerned with moral standards in public life should focus on this aspect of the law.
A Catalogue of Curiosities
Here is a collection of relevant cases that assume and encourage the erosion of respect for chastity:
A Louisiana court forbids the implementation of an abstinence-based sex education program in a public school because it contains factual inaccuracies, like teens with a low opinion of themselves are more likely than other teens to get involved in premarital sex and religious beliefs or subjective judgments like human reproduction has a higher meaning than animal reproduction.
After a controversial decision in Lexington, Mass., to distribute condoms in the local high school, a group of parents tries to place advertisements in the yearbook and the student newspaper urging abstinence. The student editors reject the advertisements as too controversial. A majority of the United States Court of Appeals for the First Circuit rejects the parents’ constitutional claim against the school.
The same Massachusetts court holds that no right of students or their parents is infringed when a high school makes students attend a sexually explicit AIDS awareness program put on by Hot, Sexy, and Safer Productions, Inc.
A divorced woman asks a New Jersey court to stop her ex-husband from having his girlfriend stay overnight with him while the children are visiting. Instead, the court orders a counselor appointed to explain to the children that their father’s lifestyle is as worthy of respect as their mother’s.
A married policeman is living with another man’s wife. A federal court in Michigan says it would be unconstitutional to fire him for that. It does not interfere with his police work.
A high school teacher is observed having sex with another man in a booth in an adult film store. An order of the state Board of Education revoking his teaching license for immorality is set aside by the Supreme Court of Oregon because the board has failed to explain what they mean by the term.
A married woman with emotional problems comes to an internist for treatment of a physical ailment. He has sexual intercourse with her on several occasions, all marked by a certain amount of aggression on his part and a good deal of ambivalence on hers. The Supreme Court of California holds that as the sexual relations did not affect his treatment of her physical ailments, the Medical Board cannot suspend his license on account of it.
A New York statute forbids topless dancing in bars. The State Court of Appeals says that it is an unconstitutional interference with free speech.
The Supreme Court of the United States holds that while a state may forbid the showing of films depicting the actual sexual abuse of children, the showing of films that use computer simulations to depict such abuse is constitutionally protected.
The Supreme Court of California holds that accepting pay to have sex on camera in the making of pornographic films cannot be treated as prostitution because it is protected by the First Amendment.
Certain statutes forbid discrimination on account of marital status. They were originally enacted to protect married people against employers who found single workers easier to oppress and against landlords who did not want children in their rental units. Courts in several states hold that under such statutes a landlord may not refuse to rent to a cohabiting couple on the ground that they are not married. Two state supreme courts hold that statutes against discrimination trump a landlord’s religious objection to facilitating nonmarital sex.
A man on a street corner waylays a passing woman whom he has never seen before, hustles her to his apartment and has sex with her in various ways. A jury finds that she did not consent. The Supreme Court of California sets aside the man’s conviction for rape, because the jury should have been told to acquit him if he believed she had consented.
Chastity as Idiosyncratic
Taken together, these cases reveal a steady erosion of respect for chastity as a moral virtue. Chastity has come to be seen as a personal idiosyncrasy, comparable to the wearing of turbans by Sikhs or the refusal of the Amish to drive cars. We may practice chastity if we wishit’s a free countrybut we cannot call upon our courts to promote chastity’s standards. We cannot expect public schools to teach chastity, entertainers to respect it or professional people to refrain from publicly mocking it. We cannot assume that ordinary citizens will attach any importance to chastity as a moral standard.
This erosion of respect for chastity is not peculiar to the law, nor is the law its principal cause. But of all the social forces affecting the perception of chastity, the law is the only one over which society has significant control. The power of the law as a force of moral persuasion should be exercised toward restoring chastity as a broadly accepted moral standard. The current erosion of respect for chastity has led to a wholesale trivialization of sex in our society. And where sex is trivialized, the human person is trivialized as well.
Law and Morality
The time-honored generalization that you can’t legislate morality is not true. We legislate morality all the time by the law’s implicit recognition of moral standards. We do not deploy squads of police to seek out and arrest everyone who violates accepted moral standards. But we should seek to affirm the existence of such standards. The law encourages public respect for them in many different ways.
Public respect for the moral standard of chastity, however, has been dismantled case by case in decisions like those just described. Public respect can be restored in the same way.
None of the decisions reported here were required by the Constitution, by civil laws, by precedents or by traditional American values. All of these cases could just as easily have been decided the other way. Similar cases can still be decided in a different way in the future.
Americans are a tolerant people, and we are generally disposed to mind our own business; it is neither possible nor desirable to suppress all sexual irregularities by law. But we do not have to accept a law that legitimizes them.
Chastity is not a moral virtue that can be safely relegated to the merely private sphere. The public good of society depends on an acceptance of chastity as a moral standard. Without such a standard, the erotic is continually intruding into situations where it is destructive of friendship, respect, trust, cooperation and often of human dignity. But in the public sphere, chastity has always proved to be a delicate virtue. Without strong support from society, it tends to languish, as I believe it has today. The violation of chastity, on the other hand, never lacks for enthusiastic supporters who are prepared to occupy any public space that becomes available. A society, therefore, cannot afford to be neutral on the subject.
Promoting a Respect for Chastity
Unless the standard of chastity is supported, its violations become the norm. We need to recast our legal assumptions to support chastity as they once did. The issue is not one of rooting out and punishing illicit sex. The question rather is the prevailing assumptions governing all kinds of legal questions. These assumptions should recognize chastity as normal and normative. The law cannot effectively deter those who choose to violate chastity. But it can and should encourage those who opt for chastity and offer guidance to those who confront its challenges.