Rethinking Legal Liberalism: The Sexual Freedom Doctrine that Never Was
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As the story typically unfolds, the activist Warren Court shifted the conservative legal tide irreversibly, triggering a legal liberal wave that fundamentally transformed American law into a more egalitarian and libertarian form. Landmark decisions such as Brown v. Board of Education (1954) and Griswold v. Connecticut (1965) signaled the United States government would no longer tolerate public discrimination, nor intrusion of private bodily rights. Or so it may have seemed.
In his incisive study, Marc Stein challenges the rosy perception that the nation's beacon of justice, the Supreme Court, heralded a profoundly forward-thinking era in positivist civil rights and civil liberties doctrine on Chief Justice Earl Warren's watch (1953-69). More of a realist than a pessimist, Stein brings down the elevated Court from the righteous realm of revolutionary to a more earthly standing of flawed reformer. He offers a long overdue reevaluation of the sexual revolution, demonstrating that decisions heralded as landmark advances in the area of sexual freedom were actually sexually conservative. In his critique of Griswold, Fanny Hill v. Massachusetts (1966), Loving v. Virginia (1967), Eisenstadt v. Baird (1972), and Roe v. Wade (1973), he argues convincingly that the justices' sexual rights doctrine "affirmed the supremacy of adult, heterosexual, marital, monogamous, private, and procreative forms of sexual expression" (p. 3). In so doing, Stein exposes the hidden history of a sexual counterrevolution that sustained an old order in the law that was resistant to the cultural loosening of sexual mores.
A recovering Supreme Court aficionado, Stein is a strong candidate to write this critical history. Now an American expatriate living and teaching in Toronto, Canada, he reminisces whimsically in his preface about his youthful days in suburban New York when he still had "a patriotic faith in the Constitution and the Court" (p. viii). His love ran so deep, he once embellished his childhood room in glorious red, white, and blue and dressed his walls with images of [End Page 162] the Court's stately chambers. Stein reflects upon his early foray into interior decorating to make a point. It is understandable that he would be swayed in his youth by the powerful mystique of the Court, but legal and political historians who spin indiscriminate yarns have no excuse. Stein's expression of "profound disappointments" as a U.S. citizen "who once believed" sometimes distracts from his meticulous research and commanding argument (p. vii). Still, the distance of time and space has allowed him to ask probing questions about the implications of doctrinal change in the area of sexuality. His position at the crossroads of legal, queer, and gender history well equips him to make a strong case for the importance of studying gay and lesbian legal rights strategies and court response to this legal activism prior to the 1970s.1
Stein advances a primary project in queer history that seeks to move analysis beyond identity and behavior toward an underlying structuralist reading of heterosexuality as a regulatory system. In the company of Margot Canaday, Stein draws attention to a central irony in twentieth-century legal development: the entrenchment of a heterosexual legal regime coincided with the waning of coverture. Canaday suggests the conflicting movement of these "opposite arcs" limited the progressive possibilities of legal feminism, contending, "it is not that the feminist revolution in law has meant so little, but rather that it should have meant so much more: a profound legal transformation was blunted by the way that coverture and the legal regime of heterosexuality were aligned."2 On this point, Stein is not as forgiving, faulting the lawyers who brought forward rights cases more than the Supreme Court for creating legal outcomes that were safe and even regressive.
Stein joins feminist and civil rights legal historians such as Serena Mayeri, Kenneth Mack, and Risa Goluboff in challenging the centrality of legal liberalism by complicating its historical origins and trajectory.3 These scholars urge historians to look for instructive "lost opportunities...
