America: The Jesuit Review on Stone's 'Sex and the Constitution'

‘A great and mysterious force’
Daniel J. Morrissey
America: the Jesuit Review
July 11, 2017

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.”

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.


Geoffrey R. Stone