Sex, religion, and the Constitution

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Standing beneath the carved angels in Swift Hall’s third-floor lecture room and pondering religion’s long reach, legal scholar Geoffrey Stone, JD’71, offered more questions than answers Thursday night at the Divinity School’s annual Nuveen lecture. Focusing on the fate of the Constitution in the 21st century, he previewed two of his forthcoming books: Rights at War (University of Pennsylvania Press), which argues for judicial intervention against restricting Muslim Americans’ rights in the face of a terrorist threat, and Sexing the Constitution (W. W. Norton), which explores court rulings on moral customs that become law. “How do we deal with laws” governing personal behavior like abortion, birth control, and same-sex relationships, he asked, “that arise from sectarian beliefs rather than from public policy designed to serve the country as a whole? … Up to now, the law has been blind to this problem.”

When it comes to sex or war, said Stone, the Law School’s Harry Kalven Jr. Distinguished Service Professor of Law, religion plays a powerful role in constitutional law. That role extends beyond the Constitution’s framers; tracing it for Sexing the Constitution, Stone found himself researching the Hebrews and early Christians. “When we look at decisions on contraceptives, abortion, gay rights, it is appropriate to understand them not as momentous steps in our time, but minor steps in a 1,500-year process,” he said. “Western culture is still trying to dig itself out from under Augustine,” the fourth-century saint whose teachings on original sin and salvation were critical to early Christianity.

“Can a law be constitutional when it arises from religious precepts?” he asked. The question is complex, he said. Laws against married couples using contraception, for instance—like the Connecticut statute the Supreme Court struck down in 1965—do not explicitly violate First Amendment clauses on religious free exercise or establishment of a state religion. And although an anticontraceptive law may be rooted in Christian teaching, it isn’t as if “being Muslim or Jewish requires one to use contraceptives,” Stone noted. In addition, faith influences not only pro-life activists or gay-marriage opponents; it also spurred 19th-century abolitionists and 1960s civil-rights leaders. “That doesn’t mean the 13th Amendment,” eliminating slavery, “is unconstitutional.”

L.G.

Photo: Stone expounds on constitutional law in Swift Hall.

November 6, 2006