Though natural, necessary, desirable, and divinely ordained, however, sexual gratification was subject to extrinsic limitations emanating from two other sources or concerns. One was the ethic of manliness. Under this ethic, although homosexual intercourse was permissible and sometimes preferable, to be the passive or receiving partner in such a union was deemed disgraceful and effeminate. In addition, a man should always be the master not only of his household and his slaves but also of himself. So it was shameful to indulge sexual passions beyond the point of self-control.
The other source of limitations on sexual expression, given pervasive fears of population decline, was the demographic demand for reproduction within the patriarchal family. Together with the ethic of manliness, this concern meant that women—respectable women anyway—enjoyed none of the sexual license extended to men. Women were expected to remain chaste before marriage, to marry at a young age, and to have relations only with their husbands after marriage.
These sexual norms were reflected in and supported by law. Adultery was legally forbidden (although the prohibition was sometimes violated—and flagrantly violated by emperors). More importantly, law recognized and maintained the institutions—the ubiquitous brothels, the teeming multitudes of slaves—that solved what would otherwise have been an untenable problem of sexual supply.
Christianity, by contrast, firmly rejected these sexual norms in favor of celibacy and marriage, as we saw in chapter 5.103 Sexual relations were not deemed a human necessity—indeed, the celibate life was admired—and were permissible only between spouses. This conception expressed a Christian ideal of purity—of the body as a temple of the Holy Spirit—that pagans found almost incomprehensible. “Christian ideals of sexual exclusivity, including male fidelity were radically discordant with the patterns of life and the expectations of public culture,” Harper explains.104 Conversely, “for Paul the sexual disorder of Roman society was the single most powerful symbol of the world’s alienation from God” (94).
As Christianity became the dominant religion of the empire, Christian sexual norms also gradually came to be reflected in law. Prostitution, enthusiastically supported under the earlier emperors, was now legally regulated and discouraged (186–88). Pederasty and homosexual conduct were forbidden (155–56). The shift from pagan to Christian morality amounted to “a revolution” (18). That revolution was hardly limited to sexual morality, to be sure. But in its cultural manifestations, Harper observes, “sex was at the center of it all” (1).
In Rome, in short, the law reflected and reinforced the shift from pagan sexual norms to Christian sexual morality, which in turn was a manifestation of the shift from the immanently religious, pagan world to the Christian world oriented to a transcendent deity.
The Modern Divide. In modern America, a similar process is discernible—except in reverse. Thus, for much of American history, Christian sexual norms prevailed (at least officially, although, as always, actual practice often deviated), and the law reflected these norms. The legal scholar Robert Rodes explains that as late as the 1950s, the law embodied Christian or biblical sexual morality. Fornication was still a criminal offense in all but ten states, adultery in all but five, sodomy in all the states.105 Seduction was both a tort and a crime.106 The distribution of contraceptives was forbidden by federal law, as well as under the law of most states.107 Obscenity was prohibited, subject only to faint constitutional protections, and in many states, movies were subject to licensing to screen out objectionable content.108
Most of these laws were, to be sure, imperfectly or even rarely enforced. When opponents brought a lawsuit challenging Connecticut’s ban on contraception in Poe v. Ullman,109 the case was dismissed because the Court found that in the decades since the statute was enacted in 1879, the state had tried to enforce it only once, and that prosecution had been dismissed on the state’s own motion. Moreover, actual behavior often departed significantly, as it long had done, from the official norms. Historians John D’Emilio and Estelle Freedman report that by the 1920s Americans were already moving toward a more liberal view of the functions and limits of sex.110 Rodes acknowledges these facts but argues that the legal provisions nonetheless expressed and helped to maintain a sort of official or public normative framework: “When Dwight Eisenhower was President, . . . it was well understood that chastity was the prevailing social norm. Whatever their practices, everyone knew what the standard was: married people were to have sex only with their spouses; the unmarried were to abstain.”111
Survey data support Rodes’s observation: in the 1950s fewer than a quarter of Americans approved of premarital sex.112 Then came the so-called sexual revolution (though it was not exactly the first such revolution, or the last).113 Cultural, political, and commercial developments converged, D’Emilio and Freedman explain, to produce a “reorganization of sexuality” in America.114 “The reshaping of sexuality in the 1960s and 1970s was of major proportions. The marketing of sex, new demographic patterns, and the movements of women and homosexuals for equality all fostered a substantial revision in attitudes and behavior. . . . By the end of the 1970s, it was obvious that the [earlier] consensus had dissolved. As Americans married later, postponed childbearing, and divorced more often, and as feminists and gay liberationists questioned heterosexual orthodoxy, nonmarital sexuality became commonplace and open. And all of this took place in a social environment in which erotic imagery was ubiquitous.”115
Modern sexual norms run parallel in important respects to ancient pagan attitudes and practices—except that these attitudes and practices have been extended to include women as well as men. Now, as then, in the popular morality growing out of the sexual revolution, the term “sexual morality” is something of a misnomer. That is because, according to a common assumption, sex is a normal, healthy human activity that does not intrinsically call for moral restrictions. Indeed, sexual intimacy continues to enjoy a kind of priority or even sanctity: it is not merely a particular kind of activity or pleasure that some people happen to enjoy (like gardening, or golf, or playing a musical instrument), but rather is something that is central to a complete human life. In Martha Nussbaum’s list of human capabilities that must be recognized and accommodated if people are to live a life that is “truly human” or “fully human,” one of the capabilities (“bodily integrity”) is explained as including “having opportunities for sexual satisfaction.”116 In Supreme Court decisions, opportunity for sexual fulfillment is explicitly if vaguely tied to “human dignity.”117
Commenting on “the sacrosanct, nonnegotiable status assigned to contraception and abortion,” Mary Eberstadt argues that the new sexual morality is “a new, quasi-religious orthodoxy.”118 As in Rome, it may seem, contemporary society “find[s] in erotic fulfillment nothing short of salvation,” as Kyle Harper observes.119
Also as in Rome (though to a somewhat lesser extent), both stimulations to and opportunities for sexual expression are pervasive. D’Emilio and Freedman observe that “mid-twentieth-century America witnessed the collapse of most prohibitions on the public portrayal of sexuality.”120 Today, consequently, commercial advertisements routinely display comely, seductively clad women and men who both appeal to and stimulate libidinous inclinations while seeking to entice consumers to buy automobiles, beer, hamburgers, or remedies for erectile dysfunction. Pornography is readily available, now not only in films and magazines but also online; legal attempts to restrict it have fared badly in the courts.121 The Internet and mobile phone apps are widely used to arrange sexual partners.122 Historians D’Emilio and Freedman describe “the permeation of sex throughout the culture.”123
The prevalence of these radically altered norms of sexual morality is reflected in, among other places or media, popular television series. Examples are numerous; as one salient instance, consider the critically acclaimed sitcom Frasier, which ran for eleven seasons, from 1993 to 2004. The series featured two culturally refined and obsessively fastidious psychiatrist brothers, Frasier and Nile
s; their retired police officer father, Martin; Frasier’s talk show producer, Roz; and Martin’s physical therapist, Daphne.124 The central character, Frasier, multiply divorced, has over the course of the series numerous short- and longer-term sexual relationships with a variety of women; Niles and Martin have the occasional tryst. The characters often talk and even agonize over the moral dimensions of these relationships, but the moral reflections have to do with concerns like whether Frasier is being honest with a partner or too shallow in his choice of partners. No one (not even Martin, who is depicted as thoroughly and comically traditional in his attitudes) ever expresses the slightest reservation about the propriety of extramarital sex as a concern in itself. On the contrary, as in ancient Rome, the characters often worry about the deleterious consequences of the absence of such intimacy; thus, Niles and Martin become alarmed when Frasier goes for a protracted period without “being with a woman.” Roz, by contrast, is depicted as having sex routinely with almost any man who is willing and minimally attractive; this propensity is a frequent subject of mirthful banter, but not of any sustained moral appraisal or censure.
The fact that traditional sexual morality is so wholly absent from a show in which the characters are portrayed as highly reflective and in some ways morally ultrafastidious is revealing of a dramatic change in prevailing sexual ethics. (In this respect, Frasier presents a contrast to a celebrated series like, say, Seinfeld, which is similarly oblivious to traditional sexual morality but in which the characters are emphatically not portrayed as morally serious.)125
Ferdinand Mount summarizes the prevailing mind-set: “Except for a minority of religious fundamentalists, we are reluctant to condemn any specific sexual practice as wrong in itself. . . . Between consenting adults in private, there are almost no limits.”126 This understanding is similar, Mount contends, to the attitudes that prevailed in ancient Greece and Rome. Like the pagan view and unlike the Christian view, in the prevailing modern attitude “sex is not thought of as sinful in any of its manifestations.”127 Rather, the modern attitude reflects a “Neo-Pagan yearning for a return to the easy, down-to-earth sexual life of the ancient world.”128
Again as in Rome, however, sexual intimacy, although not intrinsically generative of moral restrictions, is subjected to extrinsic limitations arising from independent practical or ethical considerations. Unlike in Rome, these extrinsic sources of restrictions are not the ethic of manliness or the need for population replenishment, but more nearly the opposite of those ancient constraints. Thus, instead of an ethic of masculinity, contemporary culture reflects two more contemporary ethical commitments—to gender equality, and to personal autonomy and hence individual consent. These commitments have combined, in some contexts, to generate severe restrictions on sexual activity—restrictions designed to assure that sexual partners, both male and female, have fully agreed to each act or phase of sexual intimacy.129 And in place of the ancient social pressure to produce children, modern norms have been structured to promote the avoidance of unwanted pregnancies. This concern to limit pregnancy and population growth, together with concerns about the risk of sexually transmitted disease, has sponsored a series of programs and campaigns to facilitate the availability of contraceptives—on which, more in a moment.
Constitutionalizing the Sexual Revolution. Positive law—constitutional law in particular—has played a central role both in expressing and in facilitating this shift from a Christian to a more pagan sexual ethics.130 As noted, as late as the 1950s, American law expressed traditional Christian or biblical understandings of what was permissible in sexual relations. Beginning in the 1960s, however, the law moved decisively in the opposite direction.
Thus, in 1965, in the case of Griswold v. Connecticut, the Supreme Court found in the “emanations” and “penumbras” of various constitutional provisions a right of “privacy” that could extend constitutional protection to the use of contraceptives. Initially, in invalidating Connecticut’s anticontraceptive law, the Court stressed the sanctity of the marital bedroom.131 That limiting rationale quickly disappeared, however. In a later decision, spurning the logic and the majestic “sanctity of marriage” rhetoric of the Connecticut case, the justices reasoned that rights belong to individuals; so if a married person had a right to contraceptives, a single person must have the same right.132
A year later, in the legendary case of Roe v. Wade,133 the Court construed the Fourteenth Amendment to support a (slightly qualified) right to abortion. Roe was heavily criticized, to be sure, including by some “progressive” constitutionalists who in fact liked the substantive outcome but found the legal rationalization untenable,134 and also by a number of justices. But just over two decades later, some of these robed critics flipped positions and joined to reaffirm the decision, or at least its “essential holding.”135
Sexual relations between same-sex partners took longer to achieve constitutional recognition. In 1986, the Court declined to strike down a Georgia law prohibiting “sodomy,” finding that the centuries-old legal condemnation of such conduct made it impossible to read an implicit prohibition into the Constitution.136 In 1996, however, the Court creatively construed a Colorado measure denying “special rights” to gays and lesbians so as to render the law vulnerable to invalidation.137 Then, in Lawrence v. Texas,138 the Court overruled its earlier decision and struck down a Texas sodomy law. Just over a decade later, the Court ruled that states not only could not prohibit homosexual relationships; states could also not deny same-sex couples who desired it the dignifying status of “marriage.”139
Ratification of the sexual revolution was not limited to constitutional law, however. At about the same time that courts were decreeing that traditional marriage laws limiting marriage to opposite-sex partnerships were unconstitutional, the Department of Health and Human Services, acting on language in the Affordable Care Act (so-called Obamacare), issued regulations requiring most employers to offer their employees insurance coverage that included contraceptives free of any co-pay. This so-called contraception mandate contained limited exemptions for religious institutions, but it provoked objections from a number of employers who did not qualify for the exemptions and who maintained religious objections either to contraception or to particular contraceptives that they regarded as abortifacients. These objections gave rise to a fierce conflict between supporters of the contraception mandate and proponents of a traditional conception of religious liberty.140 We will consider that conflict more closely in the next chapter.
The Symbolism of Sexuality. Laws regulating sexual matters can be important for their practical consequences, obviously—prohibitions of abortion may be the clearest case—but they are also important, or perhaps even more important, for what they symbolize. Thus, as noted, laws in the 1950s that appeared calculated to limit sex to marriage went pervasively unenforced. Their direct, formally legal impact on sexual behavior was often de minimis. Even so, the laws reflected a community commitment to a Christian or biblical standard or ideal. Insofar as symbols are constitutive of community, as discussed earlier, that symbolic commitment was understandably supported by some and resented by others, even if the laws’ practical or coercive impact was negligible.
By the same token, the embrace of the morality of the sexual revolution by modern laws is cherished, or resented, not only (and perhaps not even primarily) for the laws’ practical consequences, but rather for their impact in symbolizing the rejection of the older Christian conception of the community in favor of a revised conception—a conception, I have suggested, that might aptly be described as “pagan.” This dimension of the laws is perhaps most apparent in the changing legal treatment of contraception.
In fact, most Americans today are not morally opposed to contraception, and hardly any favor legal restrictions. There is no movement to reinstate such restrictions.141 Even so, contraception is at the expressive or symbolic core of the transformation in sexual morality. Thus, what D’Emilio and Freedman call “the contraceptive re
volution” is what made possible the separation of sexual intimacy from its traditional connections to procreation and marriage.142 The new and widespread availability of “the pill” in the 1960s was also closely tied to the new commitment to gender equality: “the pill” made it possible for women to engage in the same sorts of sexual activities previously more available to men without incurring the distinctive risk of pregnancy.143
So it is not surprising that the law pertinent to contraception starkly expresses the transformation in public norms. In the 1950s, as noted, the distribution of contraceptives was at least formally prohibited in most states and under federal law. Then, contraception went comparatively swiftly from being (a) legally forbidden to being (b) constitutionally permitted for married couples,144 then (c) constitutionally protected for adults and presumptively responsible adolescents whether single or married,145 and now (d) viewed as something that women—or at least employed women—have a legal right to have supplied free of charge. Indeed, that legal right is increasingly described (including by a majority of Supreme Court justices) not merely as a benefit that government may choose to confer, but as one in which government has a “compelling interest”—an interest that, unless it can be satisfied in some less burdensome way, overrides other long-standing and previously central commitments to things such as freedom of religion.146
It would also appear that the law of contraception matters to people—and provokes fierce legal disputes and heated political rhetoric—less because of the practical consequences of the law than because of what it symbolizes. As noted, the old prohibitions on contraception were mostly symbolic; they were rarely if ever enforced. Conversely, most women today could likely obtain contraceptives without legal requirements mandating that employers supply them—by private purchase or from subsidized entities like Planned Parenthood.147 Indeed, except for the few employers with religious objections, it seems likely that most employers would provide such coverage anyway (especially if, as the government has claimed, contraception actually reduces medical costs).148 In some cases, to be sure, obtaining contraceptives might be a financial burden (although government has long subsidized contraception for poor women,149 and although most women for whom the burden is significant—for example, unemployed women—would not benefit from the contraception mandate anyway); but then most goods, even essential ones (housing, food, automobiles, . . . cellphones, laptops), are costly and are typically not provided or mandated by government. The recent insistence on public support for contraception is thus understandable in part as a kind of demand that government place its imprimatur on the new sexual morality. And the conspicuous insistence that contraception be provided by employers, rather than through a range of other methods that are sometimes proposed, can be seen as an effort to elicit or extract those employers’ support for that policy with its underlying morality.
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