‘A great and mysterious force’

The United States Constitution, the supreme law of our land, is a capacious document. As Justice William Brennan said, it is full of majestic generalities that gain their meaning through the test of time. Brennan was appointed to the Supreme Court in 1956 by President Dwight D. Eisenhower, a Republican . At that time he became the only Catholic on the court, and in his initial year there he was assigned to write the court’s opinion in its first case deciding what material could legally be prohibited as obscene. Brennan began it with this significant observation: “Sex, a great and mysterious force in human life, has indisputably been a subject of absorbing interest to mankind through the ages.”

Sex and the Constitutionby Geoffrey R. Stone

Liveright. 487 p, $23

In the spirit of Justice Brennan’s insights, Geoffrey R. Stone, a professor and former dean at the University Chicago Law School, has produced an exhaustive study on the history of human attitudes about sex and how they have shaped American law. Since religion, and Catholicism in particular, are a major part of that story, it is perhaps strangely fitting that Brennan and another Catholic justice still on the court today, Anthony Kennedy, have been key figures in constructing that jurisprudence.

By an expansive interpretation of the First Amendment, Brennan was responsible in his early opinion on obscenity for sharply curtailing what could be forbidden in the field of sexual expression. In addition, he later joined the majority of the court in its 1973 decision in Roe v. Wade that prohibited the criminalization of abortion. For that Brennan was excoriated by a number of Catholic leaders, some calling for his excommunication.

Stone’s long tale recounts much about the church’s restrictive attitudes on sexual matters from St. Augustine onward. For instance, Well into the 20th century, while other Christian denominations liberalized their views on artificial birth control, Catholic leaders not only considered this activity gravely sinful but also used their considerable influence to prohibit the sale of contraceptives in many states.

Stone’s long tale recounts much about the church’s restrictive attitudes on sexual matters from St. Augustine onward.

It thus took a decision of the Supreme Court in 1965, Griswold v. Connecticut, to make those laws unconstitutional. Griswold, in turn, with its emphasis on individual liberty and privacy, laid the groundwork for Roe. Stone also sets the historical context for that landmark decision with a lengthy discussion of two major movements that preceded it: society’s freer attitudes toward sexuality and the drive to empower women. Roe of course has continued to be highly controversial, and it is there that Justice Kennedy’s impact has been so pronounced.

After Roe, a number of states that could not reverse that decision outright passed laws promoted by Catholics and evangelical Protestants to make abortions more difficult to obtain. In 1992 the issue reached the Supreme Court in Planned Parenthood v. Casey. Justice Kennedy, then relatively new to the court, joined a plurality of the justices to strike down a number of those provisions as unduly restrictive of a woman’s right to terminate her pregnancy.

Anti-abortion forces, however, were successful in passing legislation in the state of Nebraska forbidding late-term abortions. Yet in 2000 a passionately divided court found that law unconstitutional because some procedures might be necessary to preserve the health of the mother. Justice Kennedy was with the dissenters this time. He found such “partial birth abortions” to be gruesome and considered the ban on them constitutional because it safeguarded the sanctity of human life. In 2003, after the makeup of the court changed, similar federal legislation came before the court, and this time Kennedy got to write the majority opinion, which upheld the prohibition on these procedures.

The issue of abortion rights, however, continues to come back to the court, and Justice Kennedy has remained a major player in fashioning a nuanced approach there. Last year, after its original resolution almost a quarter century ago, the Caseyissue reappeared at the Supreme Court in the Hallerstedt case. This time it involved laws passed by Texas severely curtailing the types of facilities that can perform abortions.

Those regulations were ostensibly justified as needed to protect women from unsafe procedures.Yet it was hardly a secret that their real motive was to make abortions as difficult as possible for women for obtain. Hallerstedtwas decided after the death of Justice Scalia, who most certainly would have joined three other conservative Catholic justices, Thomas, Alito and Chief Justice Roberts in voting to uphold the law. The rest of the court, however, including Justice Kennedy, who joined in an opinion by Justice Breyer, struck it down as once again being unduly restrictive of a woman’s basic right to end her pregnancy. Stone’s take is that Kennedy’s decisions on abortion reveal his genuine ambivalence about it—an attitude that many, particularly Catholics, probably share.

On another major issue of sexuality and the law Kennedy has been the forthright champion of gay rights in all cases that have invalidated discrimination against them. In 2015 those culminated in Obergefell v. Hodges, where the court directly gave homosexuals the right to marry. As Kennedy forcefully put it, “Gay and lesbian people are equal. They deserve the equal protection of the laws, and they deserve it now.”

Once again Stone provides ample context for that ruling by describing how society’s attitudes have changed over the last several decades to appreciate that the L.G.B.T. community is entitled to respect. This evolving understanding of human rights has resonance in the writings of another leading Catholic jurist, the late Judge John T. Noonan Jr.—specifically his ideas about progress in moral theory, where he built on earlier work by Cardinal Newman about the development of doctrine.

Justice Kennedy’s willingness in Obergefell to see constitutional mandates in a new light is in that spirit, particularly because they support human dignity and equality.

Justice Kennedy’s willingness in Obergefell to see constitutional mandates in a new light is in that spirit, particularly because they support human dignity and equality. He was certainly right that those values, along with love and compassion, should always override narrow and repressive restrictions on human conduct.

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