By: Alex Henderson
If the Christian Right had its way, the United States would be a fundamentalist theocracy in which contraception, homosexuality, abortion, sexually explicit hip-hop lyrics and all adult pornography were illegal. But making the U.S. that much of a theocracy would mean overturning a lot of major Supreme Court decisions. Over the years, the U.S. Supreme Court has had many rulings that helped to advance sexual freedom in the United States—and it will be easier to protect those advances if fewer socially conservative justices of the Antonin Scalia/Clarence Thomas variety are appointed in the future.
Certainly, the Christian Right would have had a better chance of bringing more hardcore social conservatives to the High Court if Republican Mitt Romney had been elected president on November 6, whereas President Barack Obama has shown a tendency to nominate justices who are at least centrist in their judicial philosophy. And now that Obama is getting ready to begin his second term, he will be more likely to appoint justices who will uphold or perhaps even expand Supreme Court decisions that are favorable to gay rights (Lawrence v. Texas), contraception (Griswold v. Connecticut and Eisenstadt v. Baird), or one’s right to possess sexually explicit adult erotica (Stanley v. Georgia).
Below are 10 landmark decisions that have had major implications for sexual freedom in the United States.
1. Stanley v. Georgia (1969)
The Christian Right loves to demonize the late Earl Warren, who served as chief justice of the U.S. Supreme Court from 1953-1969—and social conservatives’ hatred of Warren is quite ironic in light of the fact that he was a Republican who was nominated by GOP President Dwight D. Eisenhower (Warren served three terms as California’s Republican governor and was Republican Thomas E. Dewey’s running mate in the 1948 presidential election). But then, the term “socially liberal Republican” wasn’t an oxymoron in the days of the Warren Court. And shortly before Warren’s retirement in 1969, the Warren Court handed down one of the rulings social conservatives are still cursing 43 years later: its decision in Stanley v. Georgia, which said that simple possession of adult pornography is not a crime even if the material is obscene. The Stanley v. Georgia ruling upheld that selling, creating or distributing obscene adult material was illegal, but a consumer could not be charged with obscenity merely for being in possession of that material. In the U.K., civil libertarians have been quite critical of what has been called the “extreme porn law” (which says Internet users can be sent to prison for up to three years merely for downloading “extreme pornography”). Britain’s extreme porn law would not be possible in the U.S. because it would be a violation of the Supreme Court’s Stanley v. Georgia ruling. Only if the Supreme Court overturned Stanley v. Georgia could the U.S. adopt a possession-oriented adult obscenity law along the lines of Britain’s law.
2. Roe v. Wade (1973)
If there is one High Court decision that the Christian Right hates more than any others, it is the Roe v. Wade decision of 1973. Before that, abortion laws varied considerably from state to state—and Roe v. Wade declared most of the state abortion laws that existed at the time to be unconstitutional. Nationwide, Roe v. Wade made it much easier to obtain abortions during the first trimester of a pregnancy. The Christian Right, after all these years, continues to hope that Roe v. Wade will eventually be overturned—which could happen if enough socially conservative justices are appointed to the Supreme Court. Were that to happen, it wouldn’t be a total nationwide ban on abortion; rather, one would likely see abortion banned in some states and maintained in others. But that doesn’t necessarily mean there would be more abortions in liberal-leaning states than in socially conservative Republican-dominated states. Possibly, the more socially liberal states would encourage comprehensive sex education and easier access to contraception, thus reducing the need for abortions—whereas in the Bible Belt states that banned abortion, Christian Right attacks on sex-ed and birth control would lead to more unplanned pregnancies and an abundance of illegal, unsafe back-alley abortions. So per capita, there might be more abortions (albeit illegal ones) in so-called “red states” should Roe v. Wade be overturned. But that is pure speculation. What we can say with certainty is that President Obama favors upholding Roe v. Wade while Romney favors overturning it.
3. Regina v. Hicklin (1868)
Although the Regina v. Hicklin decision of 1868 was a British case rather than a U.S. case, it had a profound influence on American obscenity law—one that lasted 89 years. Regina v. Hicklin came about because of a British man named Henry Scott, who distributed copies of an anti-Catholic pamphlet titled “The Confessional Unmasked.” When a lower court decided the pamphlet was obscene and ordered it to be destroyed, Scott appealed that decision—and when Regina v. Hicklin went to the Court of Queen’s Bench, the higher court upheld the lower court’s ruling. Scott argued that the pamphlet wasn’t obscene because he wasn’t trying to be offensive; he was merely trying to shed some light on the problems of the Catholic Church. But the Court of Queen’s Bench ruled that Scott’s intent was irrelevant—that if even a small portion of a book or pamphlet had a “tendency to deprave and corrupt,” all of it was obscene. Across the Atlantic Ocean in Britain’s former colonies, that “tendency to deprave and corrupt” standard was adopted in American obscenity law. The Hicklin standard was applied in the U.S. in 1873 when Anthony Comstock (a lobbyist and extreme social conservative) got Congress to pass the Comstock Act, which made it illegal to mail “obscene, lewd and/or lascivious” material, which included not only erotic literature, but also pamphlets dealing with birth control and abortion. In 1896, the Hicklin test was upheld with the U.S. Supreme Court’s ruling in Rosen v. the United States.
4. Roth v. the United States (1957)
No less than 144 years after Regina v. Hicklin, U.S. law continues to state that obscenity is not protected by the First Amendment. But what has changed dramatically since then is the way obscenity is defined. In 1957, the Supreme Court under Chief Justice Earl Warren redefined obscenity in a major way with its landmark ruling in Roth v. the United States. The Roth decision threw out the Hicklin standard and said that an artistic or literary work could not be obscene because of a small or isolated passage; the intent of the entire work had to be considered. The Roth test made it much harder for prosecutors to get obscenity convictions. Christian Right zealot Phyllis Schlafly, a vehement critic of the Roth decision, has complained that “the flood of pornography started with the Warren Court.” Hugh Hefner’sPlayboy magazine (which was founded in 1953) existed before the Roth decision, but Roth no doubt made it safer for Hefner to publish photos of nude or scantily clad women, and the Roth test certainly made it less risky for Bob Guccione, Sr. to launchPenthousemagazine in 1965.
5. Miller v. California (1973)
In 1973, the U.S. Supreme Court under Chief Justice Warren E. Burger tweaked the Roth decision with its Miller v. California ruling, which established the three-prong Miller test for obscenity. According to the Miller test, a film, book or magazine is obscene if it 1) appeals to a prurient interest when contemporary community standards are applied; 2) is patently offensive; and 3) lacks serious literary, artistic, political or scientific value when taken as a whole (the so-called SLAPS test). And #3 was somewhat of a departure from Roth, which said that obscene material was “utterly without redeeming social value.” Some people in the adult entertainment industry were worried about the SLAPS test, which they feared would make it easier for prosecutors to get convictions in obscenity cases. For example, they thought it would be easier for a prosecutor to convince jurors that Deep Throat (which came out in 1972) lacked serious social value than to convince them that it was totally devoid of social value. But in fact, the market for hardcore triple-X adult films grew considerably in the 1970s (a decade that also saw the birth of Larry Flynt’sHustler magazine, which was much cruder thanPlayboy orPenthouse). The Miller decision, like Rothbefore it, essentially stated that adult pornography is legal as long as it isn’t “obscene.” If a social conservative of the 1970s claimed that porn films like Debbie Does Dallas, The Opening of Misty Beethoven and Behind the Green Door were obscene, the films’ supporters would counter that no, they weren’t obscene because they did, in fact, have serious artistic value. And 39 years after the Miller test was established, it continues to be the standard for determining obscenity in the United States.
6. Griswold v. Connecticut (1965) and Eisenstadt v. Baird (1972)
Another Warren Court ruling that social conservatives detest is the 1965 ruling in Griswold v. Connecticut, which struck down a Connecticut law that forbade the use of contraceptives for married couples. That law, which had been on the books since 1879, had been unsuccessfully challenged in previous cases, including Tileston v. Ullman in 1943 and Poe v. Ullman in 1961. But it wasn’t until Griswold v. Connecticutthat the law was finally declared to be unconstitutional, and the person we can thank for that case is the late feminist Estelle Griswold (who served as executive director of Planned Parenthood’s Connecticut branch). Griswold began to challenge the Connecticut law in the 1950s, when she organized “border runs” in which Connecticut women were taken to New York State or Rhode Island in order to obtain the contraception they couldn’t legally obtain in Connecticut. Griswold later opened a birth control clinic in New Haven, which resulted in her being arrested and fined $100 for violating the 1879 law. Griswold’s arrest was upheld by the Connecticut Supreme Court, but that ruling was overturned when Griswold v. Connecticut went to the U.S. Supreme Court. In 1972, the Griswold v. Connecticut decision was expanded to unmarried couples with the Supreme Court’s ruling in Eisenstadt v. Baird. That case went to the High Court thanks to pro-birth control activist William Baird, who was arrested in 1967 for violating a Massachusetts law that prohibited the distribution of contraception to unmarried people. The Massachusetts law wasn’t as restrictive as the 1879 Connecticut law that was struck down in 1965, but it did say that contraception could only be given to married people and only by doctors and pharmacists. Baird’s arrest came about when he gave a condom and a package of contraceptive foam to an unmarried 19-year-old woman after a lecture at Boston University. The Massachusetts law, however, was declared unconstitutional when Baird appealed his arrest all the way to the U.S. Supreme Court.
7. Lawrence v. Texas (2003)
In 2003, the Supreme Court was way to the right of where it had been in the days of the Warren Court or even the Burger Court. Yet it was in 2003 that the Supreme Court handed down its historic ruling in Lawrence v. Texas, which declared a Texas sodomy law to be unconstitutional and in effect invalidated sodomy laws in 13 other states. Lawrence v. Texas was passed by a 6-3 majority, with justices Antonin Scalia and Clarence Thomas and Chief Justice William Rehnquist dissenting. Like Stanley v. Georgia, Lawrence v. Texas was a “right to privacy in the home” decision—and it was a major victory for gay rights, which is why Pennsylvania Republican Rick Santorum (a senator at the time) opposed it so vociferously. Santorum infamously stated that the ruling was flawed because a right to privacy “doesn’t exist” in the U.S. Constitution.
8. Reno v. American Civil Liberties Union (1997)
The 1990s saw the rise of a new medium that could be used to sell and distribute sexually explicit or erotic material: the Internet—and the Communications Decency Act of 1996 was Congress’ first major attempt to regulate obscenity and indecency online. The CDA made it a crime to knowingly transmit “obscene or indecent” images to anyone under 18; using some of the language of the Miller test, the CDA made it a crime to send minors material that “depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs.” But when the American Civil Liberties Union challenged the CDA, the U.S. Supreme Court struck down anti-indecency elements of the CDA on the grounds that they violated the First Amendment. Justice John Paul Stevens, who felt the CDA’s language was much too broad, wrote that “the CDA effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another.” In other words, the Supreme Court ruled that some material can be inappropriate for minors but perfectly OK for adults. Stevens’ assertion was a major blow to those who wanted to suppress adult-oriented material on the grounds that minors shouldn’t see it. In that sense, it was yet another nail in the coffin of the old 19th-century Regina v. Hicklin belief that material was obscene if it wasn’t appropriate for “the most susceptible members of society.”
9. Ashcroft v. Free Speech Coalition (2002)
While the laws governing the creation, sale and distribution of adult entertainment in the United States are complex and nuanced, the Supreme Court has been much more clear-cut where child pornography is concerned. Child pornography is flat-out illegal in the U.S., and that includes simple possession (Stanley v. Georgia only applies to adult erotica). The Supreme Court unanimously ruled in New York v. Ferber in 1982 that child pornography doesn’t enjoy the protections of the Miller test. So when Congress passed the Child Pornography Prevention Act (CPPA) in 1996, civil libertarians had no problem with Congress reaffirming the illegality of child pornography. But they found parts of the CPPA to be overly broad and problematic, including a ban on “virtual child pornography” (material, including computer-generated images, that appears to depict sexual activity with minors but doesn’t involve any actual minors). The Free Speech Coalition (FSC), a Los Angeles-based trade organization for the adult entertainment industry, challenged those parts of the CPPA—and they were struck down when Ashcroft v. the Free Speech Coalition went to the U.S. Supreme Court in 2002. The Supreme Court upheld the illegality of actual child pornography — and rightly so — but pointed out that countless mainstream Hollywood films have had stories depicting sexual situations among teenagers, including American Beauty and Traffic. The High Court said: “If these films, or hundreds of others of lesser note that explore those subjects, contain a single graphic depiction of sexual activity within the statutory definition, the possessor of the film would be subject to severe punishment without inquiry into the work’s redeeming value. This is inconsistent with an essential First Amendment rule: the artistic merit of a work does not depend on the presence of a single explicit scene.” The FSC applauded the High Court’s decision, asserting that government’s prosecutorial efforts should be focused on real child pornography instead of “virtual child pornography.”
10. Jack Thompson v. the 2 Live Crew (1992)
The majority of obscenity cases in the United States have involved films, magazines or books. But in 1990, Florida-based Christian Right activist Jack Thompson (who was an attorney at the time) tried to prove that U.S. obscenity law applied to music as well—and his main target was 2 Live Crew, a Miami-based rap group known for its sexually explicit lyrics, raunchy humor and song titles like “We Want Some Pussy,” “Head, Booty & Cock,” “The Fuck Shop,” “Me So Horny” and “S&M.” Thompson’s campaign against 2 Live Crew led to Jose Gonzalez (a district court judge in Florida) ruling that its 1989 album, As Nasty As They Wanna Be, was obscene and illegal to sell; some retailers were even arrested for selling it. But in 1992, a court of appeals in Georgia overturned Gonzalez’ ruling and asserted that As Nasty As They Wanna Be did not fit the Miller test for obscenity—and that decision was later upheld by the U.S. Supreme Court. Nonetheless, Thompson continued to rail against rap lyrics, and after that, video games that he didn’t like, although his legal career came to end when, in 2008, the Florida Supreme Court permanently disbarred him for his long history of unprofessional conduct (which included, among other things, libel and slander, frivolous filings and making false statements to tribunals).