Love the Sin

Sexual Regulation and the Limits of Religious Tolerance

Janet R. Jakobsen, Ann Pellegrini

• Publisher: NYU Press
• Year: 2003
• ISBN:
  9780814743812
• Topic: Theology & Religion
• Subtopic: Ethics & Religion

Sex. Religion. There is no denying that these two subjects are among the most provocative in American public life. Even the constitutional principle of church-state separation seems to give way when it comes to sex: the Supreme Court draws on theology as readily as it draws on case law when rendering decisions that touch on sexuality.

In this compelling and carefully argued study, Janet R. Jakobsen and Ann Pellegrini examine this powerful and disturbing connection as they explore the reasons why secular institutions habitually use religion to regulate sexual life. From state legislatures to the halls of Congress and the Supreme Court, from daily newspapers to popular magazines and television talk shows, Jakobsen and Pellegrini illustrate the intensity of America's obsession with sex in the name of values and the dangers it poses to some of our most basic freedoms.

Using a wide range of case studies, Love the Sin offers an insightful critique of the ways in which sexuality in general and homosexuality in particular are discussed and debated in the public arena. Additionally, the book sets forth constructive alternatives that highlight the vital links between sexual and religious freedom and expose the hazards of using religion as a justification for regulating sexuality.

A timely, necessary, and refreshing contribution to the many debates surrounding religion, morality, and sex, Love the Sin boldly dreams an America that lives up to its promise of freedom and justice for all.

1
Getting Religion

One of the most puzzling, yet persistent, features of public life in the United States is how quickly talking about sex turns into talking about religion and, conversely, how quickly talking about religion turns into talking about sex. It is not simply that religion is the context for public debates and policy making around sex; rather, in a fundamental sense, the secular state’s regulation of the sexual life of its citizens is actually religion by other means. Even the constitutional principle of church-state separation seems to give way when it comes to sex. In this chapter, we look at cases in which the Supreme Court, which is charged with maintaining this important constitutional bedrock, uses religion as a basis for rendering decisions about sex. But why? What makes sex so troublesome, so dangerous, that religion seems to be the only answer?

The claim that sex is inherently “trouble” is a baseline of American public discourse about sex. According to this view, sex by its very nature is so morally fraught as always to require a chaperone. We certainly do not dispute the immense symbolic weight that sexual practices and identities carry in the contemporary moment. We want to ask, however, why this is the case. Why sex? Why religion?

It is true that sexual practices and preferences attract a kind of critical scrutiny (from oneself and from others) that other bodily practices and appetites do not. However, as a number of historians have shown, while sexuality has often been regulated, the form and content of these regulations have varied. The same kinds of moral meanings have not been assigned to sexual acts from culture to culture. Additionally, even within a given culture, sexual acts take on different meanings over time. Thus, it is a mistake to assume that the moral meaning assigned to particular acts and desires today has remained constant for all time.¹

Contemporary conversations about sex and sexual values in the United States are often impeded by these linked assumptions: sex is a problem, and a moral problem at that; it has always been a problem; religion is the solution. We disagree. These assumptions ultimately misrecognize both sex and ethics, seeing one as always and everywhere a problem for the other. Sex is no more a “problem” that requires solving than religion is the necessary solution.

Anthropologist Gayle Rubin helpfully identifies some persistent conceptual stumbling blocks that get in the way of thinking about sex.² These impediments include both sexual essentialism and what she calls “sex negativity.” An essentialist view of sex sees it as some naturally occurring, presocial force internal to an individual but outside history. Further, this sexuality-as-essence constitutes a powerful life force, bubbling forth to shape individuals and affect the societies they inhabit. Within this worldview, sexuality is not just powerful; it is dangerous. It is held to be dangerous, in part, because it is conceptualized as a biological force existing outside or “before” society and the rules that govern it. Left unchecked, sex threatens the moral order of things. This is sex negativity, the belief, as Rubin quips, that sex is “guilty until proven innocent” (11).

Against this backdrop of sexual essentialism and sex negativity, the vast array of moral rules and regulations governing sexual conduct represents attempts to keep sex in line and society on course. In the United States, these moral rules are often enforced by the state. Religion continues to supply the rationale for the state regulation of sexuality. At first glance, this might seem like a startling claim. After all, the United States is supposed to be a secular society, organized on the principle of church-state separation. And yet, religion—specifically Christianity—shapes legislation, public policy, and even jurisprudence around sex. One of the reasons religion can continue to operate this way, even in the face of the official doctrine of church-state separation, is that the assumptions that underlie sexual regulation are so deeply embedded that people no longer recognize them as being derived from religious thought.

The usual story told about secularization in Western societies is that over the course of the seventeenth and eighteenth centuries, as the modern period developed, there was a progressive retreat of religion from public life, including, most prominently, from the workings of the market and government. Tasks that were once delegated to Church and Crown came to be assigned, via linked processes of secularization and democratization, to the state. Religion, previously such a force in public life, was pushed to the background, to a newly privatized zone of family, morality, and questions of conscience. So the story goes, but it only goes so far.³

We want to tell a different story. Underreported in the usual way of telling this story of modernity are all the ways in which religious ideas about the body have continued to be enforced by the newly secularized state. This, then, is the “afterlife” of religion in modernity: secularization has not so much meant the retreat of religion from the public sphere as its reinvention. This reinvention is accomplished through a conflation of religion and morality, in which morality is assumed to be the essence of religion and, conversely, moral proclamation can be a means of invoking religion without directly naming it. In other words, under cover of an official secularism, particular religious claims about “the good life,” the way things are or should be, can still remain operative.

These processes do not work the same way in all Western societies. In the particular case of the United States, the dominant framework for morality is not simply “religious” or even “Christian,” but is specifically Protestant. Protestant dominance does not mean that other religious traditions within Christianity and sometimes within Judaism are not given any space in American public life; rather, the unstated religious assumptions of U.S. secularism are specifically Protestant. The conflation of religion and morality that produces these unstated assumptions is part of a process of historical amnesia. In the United States, religion—Protestantism, that is—works to supply the moral foundation all the more thoroughly because its specific religious lineage is often forgotten.

Sodomy laws are a fascinating example of this forgetfulness in action. On the one hand, in enforcing sodomy laws, the secular state is enforcing specifically religious ideas about “natural” and “unnatural” sexual acts and appetites. On the other hand, the secular state understands itself to be doing so not in the name of religion per se, but in the cause of a universal morality. And yet, time and again particular religious interpretations provide the state’s last best defense for its policies concerning sex.

As a way to expose how particular Christian claims are at work in the American state’s ongoing regulation of sexuality, we take a close look at two Supreme Court cases, both of which concern homosexuality: Bowers v. Hardwick (1986) and Romer v. Evans (1996). The outcome of both cases is by now well known. In Bowers v. Hardwick, the Supreme Court upheld the constitutionality of sodomy statutes, finding that states did have the right and even the moral interest to regulate and criminalize consensual sexual activity between persons of the same sex. The majority opinion in Romer v. Evans, by contrast, overturned Colorado’s antigay Amendment 2. The Court ruled 6 to 3 that Amendment 2, which won the support of a majority of Colorado voters in a 1992 statewide referendum, unconstitutionally denied equal protection to homosexuals.

At first glance, it seems as if these two cases resulted in completely different judgments—the one, a defeat for gay rights, the other, an unalloyed victory. But on a closer view, some surprising convergences may be found. We do not pretend that our analyses of these two cases are exhaustive. Nor are we seeking to offer a close constitutional analysis; we are neither legal scholars nor constitutional historians. Instead we are offering a rhetorical analysis in order to lay bare a cluster of assumptions at work in both Hardwick and Romer. Examining the logic behind the Supreme Court’s decisions in these two cases helps to illuminate the links outlined above among religion, sexual regulation, and the secular state. As we shall see, when it comes to homosexuality at least, often what the Court dispenses is not justice but religion.

Bowers v. Hardwick

Nowhere is the state’s dependence on religion to justify sexual regulation made more clear than in Bowers v. Hardwick. This 1986 case concerned the constitutionality of Georgia’s sodomy statute. Hardwick revolved around the government’s right to regulate, in Justice Byron White’s words, certain kinds of “private sexual conduct between consenting adults.”⁴ Apparently some sex acts are so far from being moral that even privacy and consent do not insulate them from government interference. Georgia’s statute was not the only one in dispute, however; the Supreme Court’s decision would also determine the constitutionality of a patchwork of sodomy laws in force elsewhere in the United States. At the time Hardwick reached the highest court, twenty-five states had sodomy laws in some form. Today, more than fifteen years after the Hardwick decision, sodomy statutes remain on the books and in force in sixteen states and in the U.S. military.

In the first ]volume of his three-volume History of Sexuality, Michel Foucault famously describes sodomy as “that utterly confused category.”⁵ Something of this confusion may be seen in the various state laws against consensual sodomy. Just which sexual acts are prohibited varies from state to state. In some states, sodomy is defined exclusively as anal sex between men; in other states, sodomy refers to any act of anal sex or oral sex, no matter the sex (male or female) of the participants. Notably, in every state that still has a sodomy statute, the law criminalizes consensual sex between men; by comparison, the legal status of consensual sex between women and consensual oral or anal sex between men and women differs from state to state.

The case that became Bowers v. Hardwick began when a Georgia man, Michael Hardwick, was arrested in the fall of 1982 for an act of oral sex performed in the privacy of his own bedroom. The police literally entered his bedroom to deliver a warrant for Hardwick’s arrest in conjunction with an earlier event. As legal scholar Kendall Thomas explains, “Hardwick’s arrest in the privacy of his bedroom was the culmination of a . . . series of events which were set in motion” when Hardwick was ticketed for drinking in public by an Atlanta police officer named K. R. Torick.⁶ It was this same officer who would later arrest Hardwick and a male companion at Hardwick’s home.

While the ultimate legal question in Hardwick was whether the constitutional right to privacy protected homosexuals in their sexual acts, the “prehistory” of Hardwick’s arrest for sodomy had a decidedly public backdrop—outside a gay bar in Atlanta where Hardwick worked. Torick “stopped Hardwick after seeing him throw a beer bottle into a trashcan outside the bar.” According to Hardwick’s account of the incident, Torick then “‘made me get in the car and asked what I was doing. I told him that I worked there, which immediately identified me as a homosexual, because he knew it was a homosexual bar.’ Torick then issued Hardwick a ticket for drinking in public” (Thomas 1438).⁷ After a series of bureaucratic errors, the ticket for public drinking led to an arrest warrant for failure to appear in court (Hardwick had been given the wrong date for his court appearance), and this warrant was the ostensible reason Officer Torick ended up at Hardwick’s bedroom door approximately one month after their first fateful meeting.

Certainly, the circumstances of Hardwick’s arrest indicate how little meaning the right to privacy has for gay people. But more than that, the initial summons, issued for “drinking in public,” also reveals the limits on gay people’s public mobility. The freedom of movement—to go in and out of bars and restaurants without fear of harassment, to move in and around one’s place of work without worry—is something many Americans take for granted. This is not a freedom always available to gay people.

After the police entered his bedroom, Hardwick and his male companion were arrested and charged under Georgia’s sodomy statute. Although the Fulton County District Attorney ultimately declined to prosecute, Hardwick decided to challenge the statute on constitutional grounds for its criminalization of consensual sodomy. The case made its way through state and federal courts to the U.S. Supreme Court.

By a 5 to 4 majority, the Court upheld Georgia’s sodomy statute and, with it, the sexual regulation of bodies—of some bodies, that is. For, even as the Court affirmed the state’s right to regulate its citizens’ bodies, this was no blank check. The Court affirmed the constitutionality of sodomy statutes, at least insofar as they applied to “consensual homosexual sodomy”:

The Constitution does not confer a fundamental right upon homosexuals to engage in sodomy. None of the fundamental rights announced in this Court’s prior cases involving family relationships, marriage, or procreation bear any resemblance to the right asserted in this case. And any claim that those cases stand for the proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription is unsupportable.⁸

While the Court addresses the question of homosexual sodomy in such strong language, the legal fate of some other bodies in their sexual acts is dispatched to a footnote. Writing for the majority, Justice White simply states: “We express no opinion on the constitutionality of the Georgia statute as applied to other acts of sodomy” (Hardwick 188n2).

We are left to fill in the blank for those “other acts of sodomy” Justice White will not or cannot utter in the open: heterosexual. Lord Alfred Douglas once famously described homosexuality as “the love that dare not speak its name.” By contrast, heterosexuality seems to be the identity that need not speak its name; it just goes without saying. (In fact, there may be no surer way to call your heterosexuality into question than to proclaim it too openly.⁹) Heterosexuality can go without saying in all the mundane practices of everyday life: it is taken for granted in all kinds of casual conversations, whether struck up between strangers or between acquaintances, about weekend plans, romantic status, or favorite movie stars. Similarly, the Court manages to talk about heterosexual sodomy without having to name it directly.

This silence on the matter of heterosexual sodomy—“no opinion”—was not an innocent one. Rather, it ignored the Georgia statute as written. A 1968 amendment to Georgia’s sodomy statute made the state’s prohibition on sodomy neutral on the question of homo- or heterosexuality: “A person commits the offense of sodomy when he performs or submits to any act involving the sex organs of one person and the mouth or anus of the other” (qtd. in majority opinion, Hardwick 188n1[a]). In other words, according to the state of Georgia, sodomy was an equal opportunity offense. Anyone could commit it; the legal prohibition on it did not discriminate, at least in theory, between kinds of sexual persons. What the statute did do was discriminate between good and bad sexual conduct, turning this moral hierarchy into a legal distinction between licit and illicit acts.

Moreover, privacy was not in and of itself a shield from the state and its moral claims on the citizen-body. Georgia’s sodomy statute asserted the state’s right to regulate bodies in their sexual acts no matter the participants’ sex (male or female), no matter their sexual self-identifications (homosexual or heterosexual), and no matter their place of activity (private or public). Certainly, the broad reach of Georgia’s sodomy statute was pointedly underlined by the place of Hardwick’s arrest—his own bedroom.

The vicissitudes of privacy rights were further illuminated when a heterosexual couple—identified in the Court papers as “John and Mary Doe”—signed onto the case as coplaintiffs, claiming that the double edge of the criminal statute and Hardwick’s arrest under it had effectively regulated their own private sexual conduct in advance. However, a lower court held that because the couple “had neither sustained, nor were in immediate danger of sustaining, any direct injury from enforcement of the statute” (Hardwick 188n2), they had no standing in the case. It seems that there was no expectation on the part of the lower court that the statute would be enforced against a heterosexual couple. The Supreme Court upheld the District Court’s decision in this matter, reinforcing the Does’ separation from the case by remanding John and Mary Doe to that same second footnote. Keeping heterosexuality out of any immediate danger became, quite literally, the case’s subtext.

How is it possible that the highest court in the land, whose responsibility it is to interpret and apply the law, could simply ignore the Georgia statute in question—even as the Justices quoted from it? There is no ambiguity in the statute as it was amended in 1968; it applied to anyone who committed what the state of Georgia broadly defined as “sodomy.” This squeamishness about applying the statute to heterosexuals was reenacted in 1998, when the Georgia Supreme Court finally ruled, in Powell v. State of Georgia, that the sodomy statute was unconstitutional. All too predictably, this grew out of the state’s failed prosecution of Anthony Juan Powell for the rape and aggravated (forcible) sodomy of his seventeenyear-old niece. He was also charged with and convicted of consensual sodomy, but the Georgia Supreme Court ruled that in this case, unlike Hardwick, “such behavior between adults in private is recognized as a private matter.”

The Supreme Court’s refusal to apply this law neutrally in 1986—to both homosexuals like Michael Hardwick and heterosexuals like John and Mary Doe—is a perfect example of what social theorists Lauren Berlant and Michael Warner have called “heteronormativity.”¹⁰ Heteronormativity is not synonymous with heterosexuality. There are forms of heterosexual practice (“polygamy,” for example) that are not heteronormative. Heteronormativity describes the moral and conceptual centrality of heterosexuality in contemporary American life. The Court’s interest in upholding heterono...