During the dark ages, the medieval Church dominated almost every level of European society. Many of the Church leaders were negatively obsessed with sex, to a degree unknown in early Christianity, and this antisexuality was perpetuated by both ecclesiastical and Church-influenced secular law.
It might be expected that the Reformation would have produced a freer society—one less inclined to sexual suppression and less controlled by an alliance between church and state—but as we have indicated in earlier installments of The Playboy Philosophy, it had no such effect.
Many of the original settlers in America left the Old World to escape religious persecution, so it might be supposed that here, finally, man would seek the personal moral and religious freedom that had been so long denied him. Indeed, our own founding fathers took seriously the lesson to be learned from the centuries of religious tyranny in Europe and gave us a Constitution and a Bill of Rights that guaranteed the separation of church and state (that they might both be free); and Thomas Jefferson wrote, in the Declaration of Independence, of each individual's unalienable rights to life, liberty and the pursuit of happiness.
But how successful have we been in protecting these ideals for both ourselves and our fellow citizens? Just how personally free is each one of us in modern America? The dream of individual freedom persists, but are we actually allowed to live our own lives, rejoice in our liberty, and pursue our personal concepts of happiness—limited only by the extent that we infringe upon the like rights of others?
Incredible as it should seem, and despite all Constitutional guarantees to the contrary, we do not enjoy a true separation of church and state in the U.S. today. Each citizen in our democracy has a right to expect that the laws of his government have been established and will be enforced in a rational manner consistent with the aims and protections of the Constitution. But many of our laws are not based on any such premise; they are evolved, instead, from old ecclesiastical laws, from religious beliefs and dogma, to which some of our citizens subscribe, and many others do not.
Liberal religious leaders are among the most outspoken opponents of this church state alliance, but much of this church-state alliance, but much of the organized religion in America still includes a distinct element of antisexualism—a carryover from the teachings of the medieval Church and the Protestant Puritanism that followed it. And it is, therefore, in our laws related to sex that we find the greatest church-state intrusion upon our personal freedom.
Sex and the Law
Today, in the U.S., we have religiously oriented statutes limiting freedom of speech and press, statutes regulating personal sex behavior, marriage, divorce, birth control, abortion and prostitution, that are based not on a concern for the health, happiness and welfare of the individual, but upon various concepts of religious morality. Thus sin and crime become intermixed and confused—and the religious views of a portion of society are forced upon the rest of it—through government coercion—whether they are consistent with the personal convictions of the individual or not.
We will consider, in this issue, some of the specific statutes regulating private sexual behavior and the extent to which these laws are at odds with the sex practices of a sizable portion of the population—making us a nation of criminals. Some consideration will be given, too, to the wide disparity in the sex laws of the various states—making it possible, quite literally, for a couple to indulge in intimacies within the privacy of their home that are perfectly legal, while another couple engaging in the same activity in a house a block away (but in the jurisdiction of an adjoining state) is guilty of a crime that carries a ten-year prison sentence. We will also discuss the wholly arbitrary manner in which these various laws are enforced, or not enforced, and the effect such law enforcement has upon the entire fabric of law and order, in addition to the injustices thus perpetrated.
In our examination of U.S. sex law, it should not be assumed that we necessarily approve of all of the behavior thus brought under legislative control of the state. We will establish, in a later installment of this editorial series, what we personally consider to be healthy sexual morality for a rational society. The point to be made here is not that we find this sex behavior either moral or immoral, but that the moral questions involved - when they relate to private sex between consenting adults—are the business of the individual and his personally chosen religion, and not the business of our government.
It must be mentioned, too, that this view of the matter is shared by a number of our most highly respected religious leaders and with a majority of the leading legal minds who constitute the American Law Institute, which authorized the publication of a Model Penal Code in 1955 recommending that all consensual relations between adults in private should be excluded from criminal law. The logic underlying this recommendation was that "no harm to the secular interest of the community is involved in atypical sex practice in private between consenting adult partners" (and, as we shall see, much of the behavior legislated against is anything but atypical); and, further, that "there is the fundamental question of the protection to which every individual is entitled against state interference in his personal affairs when he is not hurting others."
Although this Model Penal Code to govern behavior was published nine years ago, no state has yet reshaped its laws along the lines recommended by the Law Institute—despite the fact that one of the primary purposes of this illustrious judicial body is the drafting of such model codes as a guide to making more uniform and reasonable the statutes in all 50 of the United States.
Marriage and Divorce
Sin and crime are not synonymous. As Morris Ploscowe, a former judge of the Magistrates' Court of the City of New York and presently Adjunct Associate Professor of Law at New York University, points our in the preface to his book Sex and the Law: "The fact that certain behavior is sinful should not necessarily make it criminal. The policeman, prosecutor and jailer cannot replace the priest, minister or rabbi in the control of sex behavior." Not attending church, temple or synagogue, eating meat on certain days, or eating certain kinds of meat at any time, are sins to some members of our society, but they are not crimes. In the final analysis, personal morality (sexual or otherwise), when it does not infringe upon the rights of others, should be left to the determination if the individual.
No one can reasonably question the powerful role that sex plays in all our lives. It is a dominant force in society. It can be a force for either good or evil, but sex in itself is neither.
Some believe that the sole, or primary, purpose of sex is procreation, but there is a great deal more to sex than that. It is the single greatest civilizing force on earth. Without this attraction between the sexes, the world would be a very strange, barbaric place. Our society, its culture, its interest and desires, and many of our major motivations are based upon sex.
Because of its power, man early learned to fear sex, and in pre-Christian societies, many worshiped it. Christianity changed the fear into aversion and sex became associated with guilt and shame. To cope with this force within them that they did not understand, early Christians established complex laws to control sex. These religious laws have been handed down through the centuries to the present day, and form the basis for our own social and legal controls over sex.
Ploscowe comments, "Our legal and social attitudes toward sex bear the unmistakable imprint of early doctrines of ascetic Christianity. Sex was evil to the early Christians, while the absence of sexual activity, virginity, and chastity were great goods. All forms of sexual relations between unmarried persons were mortal sins. Even sexual thoughts unaccompanied by external acts were sinful. Sex activity was permissible only in marriage, whose necessity was grudgingly recognized by the early Christians."
Marriage thus became the answer developed by society to satisfy the sex drives of men and women. But what about the two thirds of our society who are biologically adult, but unmarried? For them our society has supplied a simple, if unrealistic, answer: abstinence.
Marriage thus becomes a church-state license to practice sex. Without this religious-governmental approval, sex is forbidden. Thus, in a supposedly free society, our most personal actions are regulated by the state.
Sex is so vital to marriage that a marriage may be annulled where one of the members of the union proves incapable of performing coitus. Moreover, prolonged sexual intimacy between two unwed individuals may actually create a state of marriage (common-law) in the eyes of the state.