This is the second part of a series of posts I’m doing about the liberalization of sex laws throughout the West. Part 1 can be found here.
In order to better understand where we’re headed, let’s review where we’ve been.
Sixty years ago, homosexuality was illegal everywhere in America and across pretty much the entire civilized world. Sex outside of marriage was frowned upon — even illegal, in some cases — and the only legal form of marriage was a union between one adult man and one adult woman (definitions of “adult” could be a little elastic, but no matter where you drew the line, non-adults were off limits).
Within marriage, there was a strong presumption that sex was primarily intended for procreation. Obviously this wasn’t something that was legally enforceable, and different religious traditions had different attitudes towards “non-procreative” sex between spouses, but the presumption that sex was primarily for making babies was strong enough that access to things which might enhance “non-procreative” sex, such as birth control, was tightly restricted. Some jurisdictions banned birth control outright; others limited its availability to married couples. Even where birth control was legal for basically anybody, there were enough restrictions in place to make procuring it a bit of a hassle.
Divorce was something that ranged from difficult to impossible. In some parts of the world, notably many U.S. states, marriage between people of different races was forbidden. That last restriction seems unbelievably cruel and petty to us today, but remember that at the time, marriage and sex were seen primarily in terms of making children. Because many societies (and not just the U.S.) gave different legal rights to people of different races, multiracial children could raise thorny legal problems. One could argue that restrictions on interracial relationships were justified on the basis that society had an interest in minimizing such problems. (How much freedom people ought to have to choose their own spouses has always been a thorny question in Western culture, but based on the fact that nobody’s ever written a poem in praise of arranged marriages, we can confidently say that people have always believed couples should have as much choice as possible — they just haven’t agreed on the boundaries of what is “possible.”)
And of course, in the past, there were rigidly-enforced distinctions between the sexes, and your sex was assumed to be biologically immutable — a man could not put on a dress and demand to be treated as a woman. In some places, simply dressing up in the clothes of the opposite sex was sufficient to get you thrown in jail, regardless of your reasons for doing so. Needless to say, most “alternative” forms of sexual expression were forbidden and frequently illegal.
All of this represented what I’ll call, for lack of a better term, the Foundational Consensus on sexuality. This Consensus dates back at least to the early Middle Ages, when Christianity first came to dominate the Western world, though elements of it date back even further, to the foundation of civilization itself. At different times, certain aspects of the Consensus have received greater or lesser emphasis; at times, parts of it have been honored more in the breach than in the observance. And of course, in all times and places, the rich and powerful have been given much more freedom than ordinary folks to flout the rules.
Coming tomorrow: Why people were willing to put up with all this.