The US Supreme Court, the Sexual Revolution and Neil Gaiman
Anthony McCarthy• January 23, 2025
The law is a powerful teacher: for good or ill, it forms as well as follows social mores. Among the effects but also the causes of the Sexual Revolution was the landmark US Supreme Court case of Griswold vs Connecticut (1965), which concerned two doctors who were arrested after opening a birth control clinic.
Connecticut law had created a crime for “any person who uses any drug, medicinal article or instrument for the purpose of preventing conception”. The US Supreme Court found that such a law – not used in practice to arrest couples – was unconstitutional. Yet there seemed to be nothing in the US Constitution that e.g. a ban on sale of contraceptives violated. The judges could find no such provision in the Constitution so were reduced to claiming that implicit in it was what Judge William Douglas called a “right to marital privacy.”
Absent from the judgement was any explanation of how legalising contraception supported the presumptively good institution of marriage. The judges were proposing that a ban on contraception violated something essential to marriage: marital privacy. They enquired no further into what made marriage and marital acts valuable in themselves and worthy of protection. Such an enquiry might have led them to question whether devices which denude “marital” acts of both their procreative and unitive meaning really support the unique institution built around those acts we truly call marital.
Alexis de Tocqueville observed, “there is scarcely any political question in the United States that does not ultimately resolve itself into a judicial question”. And so it proved. After Griswold, the US Supreme Court enacted a series of radical judgements up to 1977 which, in the words of the libertarian judge Richard Posner, “created a constitutional right of sexual or reproductive autonomy, which it called privacy”. Those judgements included the notorious Roe v Wade judgement legalising abortion and overturning state laws which had more or less restricted the termination of unborn children.
Other top-down rulings of what might be called the sexual liberationist Supreme Court of the period made use of “freedom of expression” as well as “privacy” to further entrench sexual freedoms. The ideas behind such rulings reached their apotheosis when in 1992 in Planned Parenthood v Casey, the majority opinion asserted that people living now “have organised intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail.” Justice Kennedy solemnly pronounced as part of that ruling that: “at the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life”.
This was a new and radically subjectivist way of looking at the world. These court rulings, copied in one way or another by much of the West, fundamentally altered the social and cultural world in which we live and consequently altered the kind of people we are, the attitudes we have, the options we are liable to deem morally acceptable. That world now structures the perceptions and misperceptions of value and disvalue on which individuals act.
What was being asserted was the existence of new “rights” which the post-war generation felt were of central importance to life. What once had been regarded as sacred, namely rights of conscience and religious liberty, was now to include all manner of “sexual freedoms” many of which had previously been deemed harmful in themselves and harmful to the institution of lifelong marriage and the security of children.
Why, then, were these sexual lifestyles to be accorded protection and eventually promoted as praiseworthy or least not a worthy object of social taboo? St Augustine wisely pronounced, in regard to liberty, that a man has as many masters as he has vices. In other words, self-control – and indeed, God’s grace – are needed so that we may be freed from the “vice-like” grip of vices including sexual vices. The new dispensation turned such a thought on its head by condemning emotions such as shame or guilt in the sexual realm as themselves enemies of sexual self-realisation and “freedom”.
Such thinking brings to mind Jacques Maritain’s description of the life and thought of that great denier of Original Sin, Jean-Jacques Rousseau, “Mimicry of sanctity, changing of the heroic life into a religious enjoyment of self, ambition to reach God and the divine life by sensation and the affective imagination: is not Jean-Jacques the finest specimen of the naturalist mysticism of feeling?”
It is not at all clear why just any sexual desire or practice should be accorded special status in law and society any more than e.g. drug-taking should be given special protected status. After all, sexual activity is notoriously liable to lead to all kinds of unjust behaviour which, on the face of it, has no right to be honoured or respected. It is one thing for a state not to interfere in certain private practices for prudential reasons. It is quite another for the state to, in effect, promote a whole series of sexual “rights” on the grounds of self-realisation which are socially harmful and degrading to communities which end up endorsing them by refusing to countenance condemnations of them. It was during the decades of the US Supreme Court judgements that pornography became mainstream and the self-enslavement it engenders became part of “freedom”.
The standard contemporary liberal answer to the question of sex and justice is to place all the emphasis on “consent” when it comes to sexual relations. Broadly speaking, all sexual activity is allowable, even praiseworthy, provided that there is participant consent. But ought sexual activities, desires and pleasures to be assessed only in these terms?
Recently the fantasy author and “proud feminist” Neil Gaiman was accused by a number of women of having engaged in highly degrading forms of sexual activity with them. He denies that he did anything non-consensual. His accusers assert that he engaged in non-consensual activity with them but also accuse him of having “groomed” them in such a way that they ended up consenting to sexual activity of a hugely exploitative and degrading kind.
Tortoise Media, which broke the initial story of the accusations, received a statement from Gaiman’s representatives informing them that, “sexual degradation, bondage, domination, sadism and masochism may not be to everybody’s taste, but between consenting adults, BDSM is lawful.”
As Ross Douthat noted in the New York Times, “In this worldview, almost everything is permissible so long as it is adequately litigated and consented to in advance: adultery if the polycule’s rules are set to everybody’s satisfaction, sadism and masochism if the norms of express and enthusiastic consent are honored, fornication between consenting adults in all circumstances save when age gaps or power imbalances seem to make fair litigation suspect.”
Feminists who have expressed outrage over Gaiman’s behaviour have tended to focus only on “power imbalances” because they too are committed, for the most part, to “rights of sexual freedom”. If they are uneasy about the forms this might take in the name of “self-realisation”, they have only the fragile basis of lack of consent to aid them in their condemnation.
But what if the problem is that people can consent to acts which degrade them precisely because their bodies possess a nuptial meaning which is violated by such acts? Refusal to address the fact that our reproductive organs are, well, reproductive – they can unify us with someone of the opposite sex and speak to their paternal/maternal nature, honoured through marital commitment – means that, among other tragedies, vulnerable women will never be truly protected in the face of assertions of “sexual freedoms” by powerful men.
As always, the real defence of people’s dignity is to ask the deep question neglected by the US judges in their dangerous pursuit of new “freedoms”; namely, what is it that is good about marriage? The reason consent is so important in the sexual realm is that the “marital act” possesses a deep meaning, while acts which parody, degrade and insult marriage and marital sex are especially harmful to us. Single or married, we are “nuptial persons” whose sexuality is so precious that we cannot take a holiday from the effort to humanise our desires so they pay adequate respect to the person with whom we could engage in sexual relations. For what a person has a right to is love, and if that love takes the form of erotic love, what they deserve is marital commitment and its life-affirming, “unreserved” expression.
In the meantime our elites, be they sexual liberationist or feminist, continue to promote a view of the world destructive of marriage, that good and human – and divinely created – institution, as mass pornography goes unchallenged by lawmakers and our movie theatres celebrate BDSM as self-fulfilment in the form of the current film Babygirl starring Nicole Kidman.
To quote the poet Les Murray, on the frankest, most reductive unrolling of the Sexual Revolution:
Purer grades of this metaphysic
were sold out of parked cars
down alleys where people paired or reeled
like desperate swastikas.
Age, spirit, kindness, all were taunts;
grace was enslaved to meat.
You never were mugged till you were mugged
on Aphrodite Street.
(NEW YORK: Neil Gaiman attends the 2024 Writers Guild Awards at Edison Ballroom on April 14, 2024 in New York City | Theo Wargo/Getty Images)