Love the Sin: Sexual Regulation and the Limits of Religious Tolerance

1. Getting Religion

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 19 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 GETTING RELIGION 20 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...