Sexual Injustice: Supreme Court Decisions from “Griswold” to “Roe.” by Marc Stein (review)

Over the past generation or so, the United States Supreme Court has frequently been called upon to rule on the constitutionality of government regulations concerning sexual conduct. Such matters as birth control, the publication of sexually explicit materials, interracial marriage, abortion, and homosexuality have been the subjects of Supreme Court jurisprudence during the last four decades of the twentieth century and the first decade of the twenty-first. During this period, a standard narrative of judicial history has emerged in which the Court is depicted as having steadily and inexorably moved toward striking down state and federal laws that restrict private sexual behavior. A litany of cases, beginning with Griswold v. Connecticut and running through Fanny Hill, Loving, Eisenstadt, Roe, and Lawrence, has, according to many analysts, extended a right to privacy enunciated in Griswold to an increasing range of consensual sexual behavior.

Marc Stein’s Sexual Injustice poses a direct challenge to this longstanding description. Contrary to conventional wisdom, Stein argues that, far from accepting increasingly unconventional sexual activity, the Supreme Court has consistently adopted a standard of “heteronormativity” in which monogamous, marital, and heterosexual activity is the norm by which other sexual activities, and their possible regulation by government, are evaluated. Stein suggests that the US Supreme Court has never stated that private sexual matters cannot constitutionally be regulated by government. Moreover, Stein suggests that the arguments made by Court majorities in striking down government regulation of practices such as contraception, obscenity, abortion, and homosexuality are based on their presumed similarity to heteronormative sex.

In making these arguments, Stein employs two analytic strategies. First, he carefully analyzes the reasoning of Supreme Court opinions in the cases mentioned above, as well as a number of others. Stein’s treatment of these cases is exhaustive and prodigiously learned. To illustrate briefly, Stein shows that the majority opinion in Griswold is a strong testament to the sanctity of marriage and the social importance of the marital relationship. Similarly, in the Fanny Hill case, the book in question is deemed not obscene (and therefore constitutionally protected) in part because the female protagonist ultimately rejects a life of promiscuity (which includes homosexuality) in favor of marital monogamy. In the case of Loving v. Virginia, members of the Supreme Court noted the difficulties that Virginia’s antimiscegenation law posed for interracial couples who sought to practice monogamous marital sex.

Stein’s second argument involves a detailed analysis of a long neglected case, Boutilier v. the Immigration and Naturalization Service (INS) (1967). In Boutilier, the Court upheld the deportation of a man on the basis of his homosexuality while affirming the notion that homosexuality constitutes a “psychopathic personality.” Stein analyzes the Boutilier case in some detail, noting a variety of inconsistencies in the Court’s treatment of homosexuality. For example, it is not clear whether the INS regarded homosexuality as a personality disorder (which, in principle, would not necessarily result in actual homosexual behaviors) or as a behavior (in which case many Americans would be subject to civil and criminal penalties). What is most noteworthy about Boutilier is the date. The Court decided Boutilier in 1967, the same year in which the Court struck down statutes banning interracial marriage (Loving) and extended the right to contraception to unmarried couples (Eisenstadt v. Baird). Thus, in the midst of a series of apparently liberal decisions, the Court made a ruling that can only be characterized as homophobic.

In subsequent chapters, Stein devotes considerable attention to the activities of other actors, such as interest groups and the news media, regarding the Court’s rulings on sexual behavior. However, the core of the book is the assertion that the trajectory of Court rulings on sexual behavior has not been a linear one toward increasing sexual freedom but that the decisions of the Supreme Court have been more nuanced and more conservative than most scholarly and journalistic treatments have allowed.

Sexual Injustice...