Page 46 - AVN August 2017

TECH NEWS
BOOK REVIEW | By Mark Kernes
LUST AND THE LAW
A new must-read for sex-positive activists
THERE ARE ONLY A FEW BOOKS that are “must-haves” for the library of
any progressive person who’s interested in how sex and related topics
are treated in the United States. The first is America’s War on Sex by Dr.
Marty Klein, which deals with the ongoing “war” between conservative
religious activists, modern sex-positive culture and the adult industry.
The other is Girls Lean Back Everywhere by Edward de
Grazia, which traces the development of obscenity law
in the U.S. from its beginnings in the late 1800s with
the persecution of James Joyce’s Ulysses through the
1990 Cincinnati Mapplethorpe bust and conservatives’
attempts to defund arts considered (by them) to be too
risqué.
But now there’s a new mandatory read for sex-
positive activists: Attorney Geoffrey Stone’s examination
of how secular law has been subverted over the
centuries by religious activists to create the “sex
crimes” of publishing/selling/transporting/reading
erotic literature and films, being and/or patronizing a
sex worker; prescribing and/or providing contraception
or abortion services; having sex with and/or marrying
the “wrong person”; and more.
The value of Stone’s work is easily seen from the
beginnings of the first chapter, where Stone states,
“Perhaps surprisingly, the pre-Christian world
“[C]olonial bookstores in the eighteenth century contained an ‘amazing variety of erotica,’”
Stone reports, adding that “Americans could find pretty much whatever they wanted.
Cultural and political leaders like Thomas Jefferson and Benjamin Franklin collected many of
these works. Jefferson counted among his library Boccaccio’s The Decameron, several bawdy
Restoration plays, and Charles Johnstone’s Chrystal, which portrayed vivid scenes of sexuality,
lust, and sexual scandal. ... In a less literary vein, a broad range of bawdy humor
was sold by hawkers throughout the colonies, and sexually explicit
anti-papist tracts were especially popular. ... There were no prosecutions
for obscenity during the entire colonial era. ... The first true obscenity
prosecution in the United States did not occur until well into the
nineteenth century. Throughout the colonial era, the distribution,
exhibition, and possession of pornographic material was not thought to
be any of the state’s business.”
Of course, not everyone thought this way, and early in the 19th century,
the country experienced a religiously based “Second Great Awakening,”
which pushed religious views on sexuality onto many state law books—
but one phrase that Stone mentions several times in regard to the fledgling
Americans’ sexual rights is “pursuit of Happiness,” which those who are
familiar with their Declaration of Independence will recall is part of the
phrase “all men ... are endowed by their Creator with certain unalienable
Rights, that among these are Life, Liberty and the pursuit of Happiness.”
Without actually stating it outright, Stone definitely implies that the use of
the word “happiness” in that phrase was meant to refer to Americans’ right
to pursue sexual intercourse! Take that, Jefferson Beauregard Sessions III!
generally thought of sex as a natural and positive
part of the human experience. It did not see sex as predominantly
bound up with questions of sin, shame, or religion.” He follows that
THE FIRST TRUE OBSCENITY
statement with examples from Greek culture as early as 500 B.C.,
where “eros was a primal force which permeated all facets of life.” This
PROSECUTION IN THE UNITED
included Aphrodite’s priestesses frequently having sex with strangers
“as a form of worship”; Greek architecture, vases and terra-cottas
STATES DID NOT OCCUR UNTIL
featuring “explicit scenes of vaginal and anal intercourse, masturbation,
WELL INTO THE NINETEENTH
and fellatio”; and Greek playwrights dealing easily with such subjects
as “masturbation, fellatio and male-male anal sex,” and women
CENTURY. THROUGHOUT
masturbating by hand or by use of primitive sex toys. The Greeks even
had their own forms of birth control, and practiced abortion “as long
as it occurred prior to quickening”—a position supported, interestingly
enough, even by the Catholic Church until fairly recently.
In fact, before the Christians came along, western culture generally
THE COLONIAL ERA, THE DISTRIBUTION, EXHIBITION AND POSSESSION OF PORNOGRAPHIC
considered sex in most of its manifestations as close to divinity. Even
MATERIAL WAS NOT THOUGHT
the early Romans, who had little love for the Greeks, used phalluses in
religious iconography and jewelry, and Stone reports that “Prostitution
TO BE ANY OF THE
also flourished in Rome,” and that “there were as many as thirty-four
brothels in Pompeii” alone, or about one for every 300 inhabitants.
STATE’S BUSINESS.
Skipping forward a few centuries to the Middle Ages, Stone reports
— GEOFFREY STONE, ‘SEX AND THE CONSTITUTION’
that, “It was in this setting that the Church implanted in Western
culture its judgments about sex and sin. Sexual desire gradually became
linked to guilt, humiliation, failure and shame,” and Stone goes into
much detail regarding the Church’s thoughts on all subjects sexual,
including masturbation, sex outside of marriage, homosexuality,
etc.—but still, secular law took little notice until the late 13th century,
when “Criminal statutes against same-sex sex were suddenly enacted
throughout Europe,” thanks to Church-spread rumors that “same-sex
sexual conduct was rampant.” Roughly two centuries later, during
the Reformation, Martin Luther “encouraged the state to prohibit and
punish prostitution, fornication, adultery and other sexual immoralities,
explaining that if the State ‘wishes to be Christian’ it should punish
such behavior in order to maintain an orderly society.” Guess what?
Over time, that’s exactly what governments did!
And it was in part due to religious repression, sexual and otherwise,
that Europeans took their lives in their hands to cross the Atlantic and
colonize the “New World”—and guess what? Aside from the Puritans,
who largely remained in Massachusetts, the colonists were a fairly
randy bunch.
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It’s impossible for this review to catalog all of the excellent points Stone makes about the
“war on sex” that’s taking place in this country now, even though he does go into great detail
regarding the 1873 Comstock Act, which prohibited the mailing of “obscene literature,” of
which birth control information was considered a part; the persecution of sex researcher
Alfred Kinsey; the Supreme Court’s decision in Miller v. California regarding obscenity; the high
court’s FCC v. Pacifica Foundation “seven filthy words” and Barnes v. Glen Theatre nude dancing
cases; the persecution of adult entrepreneur Reuben Sturman; the Extreme Associates case;
and many, many more—and that’s just the sections on sexual speech! He gives equally incisive
dissections of the cultural and legal issues surrounding religious conservatives’ fight against
the legalization of contraception, abortion, gay rights and same-sex marriage.
In short, Sex and the Constitution belongs on the bookshelf of every person who’s even the
least bit interested in how sex has been treated by American laws, and the impacts of religion
on that treatment.
Sex and the Constitution: Sex, Religion and Law From America’s Origins to the Twenty-
First Century, by Geoffrey R. Stone; Liveright Publishing Corp., 500 Fifth Avenue, New York, NY 10110;
669 pages including end notes; $35 list price.