A brief History of Sexual Norms: The US Supreme Court as Indicator and Leader
Seeing the trends of the country as indicated in recent Supreme Court Decisions
This is the latest in a series that looks at how sexual norms have shifted over time. The series starts with this post.
When tracking the shifts in American views of sexuality, Supreme Court decisions are an interesting indicator. What is interesting is that a Supreme Court decision can be an indicator of where the general consensus is, but these decisions also help to move popular sentiment. This can be seen in the first significant decision that indicated the shifts in sexual morality: Roe v. Wade.
Roe v. Wade
In 1973 the Court used Roe v. Wade to declare abortion a constitutional right. While abortion proponents argue that this is about women’s rights, it is actually about sexual libertinism since the purpose of abortion is to try to remove the consequences of sexual activity. The timing of Roe v. Wade coincided with the crest of the Sexual Revolution, and the two are closely conjoined.
Roe v. Wade is an interesting decision as it was based on famously weak legal reasoning which led to its being overturned in 2022 in the Dobbs v. Jackson Women's Health Organization decision. The fact that Roe was based on weak reasoning reveals that the Court was more interested in legalizing abortion than in following the law and precedent. This shows how much the Court in 1973 was influenced by the Sexual Revolution.
Roe also demonstrated another principle; Supreme Court decisions affect public sentiment. Immediately after the Supreme Court declared abortion to be a constitutional right, the number of abortions in the US skyrocketed.[1] While most people would agree that just because something is legal does not necessarily mean it is moral, the very declaration of legality does create something of a pretext of morality.
Planned Parenthood of Southeastern Pennsylvania v. Casey
The state of Pennsylvania’s 1988 and 89 adjustments to the law regarding abortion, which included parental consent, was challenged in the 1992 Supreme Court case of Planned Parenthood of Southeastern Pennsylvania v. Casey. In this decision, most of Pennsylvania’s limitations on abortions were upheld but so was the right to have an abortion (until this was also overturned by the Dobbs decision). However, in upholding the right to abortion, the Supreme Court made an interesting argument that helped pave the way towards more wide-open definitions of sexuality. In the decision, the Court argued “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and the mystery of human life. Beliefs about these matters could define the attributes of personhood were they formed under compulsion of the State.”[2] This declaration makes the self the sole arbiter of personhood. While the Casey decision was meaning this regarding allowing a woman to make the decision about the personhood of her fetus and, therefore, if she could/should abort, this also paved the way for the individual to make their own self-definition of who they are. Here the Supreme Court was essentially adopting a form of existentialism where the individual must determine their own identity independent of anyone else. As we will see, this helped pave the way for transgenderism, which is the ultimate form of self-definition.
Lawrence v. Texas
In 2003, the Supreme Court took up the case of Lawrence v. Texas which overturned all laws against sodomy. Clearly, this was an arranged test-case where the police were flagged down to arrest two men engaged in homosexual sex with the goal of getting an old law overturned. At this point, there was a largely ignored law on the books in Texas which outlawed sodomy, and when the police arrested these men, things were put into motion to get this law overturned. One of the curious things about Lawrence v. Texas is how the Supreme Court selectively upheld the precedence of some prior decisions while ignoring other decisions that would not support their leanings.[3]
The ultimate outgrowth of the Lawrence decision was similar to that of Roe. Lawrence not only made homosexual activity legal throughout the US, but it also gave homosexuality a high-profile legitimization. By this point in time, Hollywood had been doing its best to normalize homosexuality in popular opinion. However, when the US government weighed in like this, it was given even greater weight.
United States v. Windsor
In 1996, President Bill Clinton signed the Defense of Marriage Act, or DOMA as it came to be known, which was intended to protect marriage as it has been historically defined between a man and a woman and, therefore, ban same-sex marriage. This act came under fire and was attacked with multiple lawsuits. In 2008, Barack Obama ran for president and famously defended the idea of marriage as being between a man and a woman. However, everything changed in 2013 with the Supreme Court decision in United States v. Windsor which essentially struck down the Defense of Marriage Act. This decision largely denied that there is any rational basis for defining marriage as between one man and one woman.[4]
At this point, several states had legalized same-sex marriage, and some others had “civil unions” for homosexual couples, but because of DOMA, these were not recognized by the federal government. With the court arguing that there is no rational basis for defining marriage as a heterosexual union, the path was paved for the ultimate federal endorsement of homosexual marriage in Obergefell v. Hodges
Obergefell v. Hodges
Two years after United States v. Windsor, the Supreme court finished the trajectory by legalizing homosexual marriage with the Obergfell v. Hodges decision. This decision was heralded by the LGBTQ+ community and opened the path not only for same-sex marriage, but also for an ever-growing expansion of legally protected sexual practices. Once you have denied that there is any biological reality behind marriage, everything changes. Now our society talks about “whom you love” as the norm, and there can be no logical limit to this formula.
While the Windsor decision had thrown out any basis for marriage to be between a man and a woman, Obergefell v. Hodges had to create a new basis for defining marriage. It did so based on four principles: that the right to personal choice is paramount, that it supports a unique two-person union, that the right to marry safeguards children and families, and that marriage is a keystone of our social order.[5]
This decision, therefore, makes our social order the basis for marriage, with nothing objective or historical about it. One can easily ask how a right for homosexuals to marry can safeguard children and families, since homosexual activity cannot produce children. Likewise, social order and personal choice are often at odds with each other. All of this means that we now have a definition of marriage that is shaky at best and could easily be changed again.
Bostock v. Clayton County
In 2020 the Supreme Court ruled in Bostock v. Clayton County that sexual orientation and gender identity are both protected from discrimination according to the Civil Rights Act’s Title VII’s outlawing discrimination “because of sex.” This case was significant because it is the first Supreme Court case to defend transgenderism according to law. From a legal perspective, this is curious because it is redefining sex in a way that was not used when the Civil Rights Act was passed in 1964.
What does this mean and where are we going?
These decisions are a good way of noting the shift in mentality within the US. It is curious to note that in 2008 President Obama could not get elected without arguing against legalizing homosexual marriage, and within five years it was approved of by the courts, and you were declared to be a bigot if you disagreed. Within another seven years, transgenderism went from a little-known minority that most considered to be freakish to being mainstream, supported by the Supreme Court, and once again you were now a bigot if you held to the majority opinion a mere seven years before.
To be honest, what I have found most shocking is not the direction that things have turned but how fast they have moved. With these recent changes happening within the course of less than 10 years each, it is obvious that there are many people who are declaring others to be bigots for holding the same position that the accuser held a few years before. However, it should not surprise us that when people have thrown off not only God’s Word but the very orders that He has built into creation and biology, things will quickly fly in any which way.
It is hard to predict where we are going from here. The Dobbs decision may seem like a brake, but all it really did was return the question of abortion back to the states. If I would hazard a guess as to what is next, I would imagine polyamory and legalizing pedophilia will be the next moves. After all, once you have defined protected sexual behaviors not based on anything objective but on whom one claims to love, then there can be no clear legal boundaries.
On another chilling note, the books of Isaiah, Jeremiah and the minor prophets all seem to point out that casting aside God’s order will not be endured for too long and judgment in some form may be coming.
[1] Jeff Diamant and Besheer Mohamed, “What the Data Says about Abortion in the U.S.,” Pew Research Center, n.d., https://www.pewresearch.org/short-reads/2023/01/11/what-the-data-says-about-abortion-in-the-u-s-2/.
[2] Quoted in Carl R. Trueman, The Rise and Triumph of the Modern Self: Cultural Amnesia, Expressive Individualism, and the Road to Sexual Revolution (Wheaton, Illinois: Crossway, 2020), 303.
[3] Trueman, The Rise and Triumph of the Modern Self, 305–7.
[4] Trueman, The Rise and Triumph of the Modern Self, 308–11.
[5] Trueman, The Rise and Triumph of the Modern Self, 311–15.