April 23, 2007
Sex in Early America Posted by Joshua Zeitz at 04:45 PM EST Apropos of our ongoing discussion about Roe v. Wade, which has branched out in some interesting directions, John Steele Gordon is absolutely correct to note that “there were any number of laws, common and statute, regarding adultery, sodomy, fornication, etc., in colonial America,” and to venture that “perhaps sex inside of marriage was entirely a private matter. But outside of it, it most certainly was not. Colonial New England, especially, bore little resemblance to, say, modern-day Amsterdam, as to what was regarded as nobody else’s business.” On the one hand, New England Puritans were anything but puritanical when it came to discussing or having sex. Samuel Willard, a Boston minister, spoke for many fellow residents of the Massachusetts Bay Colony when he derided the “Popist conceit of the excellency of virginity,” while John Cotton affirmed that “women are creatures without what there is no comfortable living for a man.” David Hackett Fischer, a leading historian of colonial America, has found that “Puritans commonly believed that an intimate sexual bond between husbands and wives was an important and even a necessary part of marriage.” That said, the Puritans punished extramarital sex harshly. For sleeping with an unmarried woman, a man could be whipped, imprisoned, fined, or forced to marry the woman in question. Adultery was technically a capital crime in colonial New England, and indeed three people were sent to the gallows for betraying their spouses. In colonial Virginia and Maryland, codes were much less strict, and consequently the high rates of out-of-wedlock births did not usually result in punitive action. The secret diary of William Byrd, a Virginia planter and compulsive Lothario, is replete with entertaining and crudely detailed evidence to this effect. The Puritans would not have been amused. The key distinction here was religious culture. Puritans believed that any unnatural sex act—be it masturbation (which was a capital crime in New Haven) or bestiality (also punishable by death)—violated biblical codes that defined sex as a strictly procreative act. Not surprisingly, the Puritans were not great fans of birth control. These observations aside, it’s worth noting two things: First, Puritans were a self-conscious reform sect and defined themselves by their exceptionalism in the Anglo-American world. To their dismay, their grandchildren made the smooth transition from Puritan to Yankee and joined the rest of the colonies in accepting a more lax sexual and religious code. Second, even the Puritans regarded quickening as the key point at which a fetus became a live person. But back to the question of extramarital sex. Mr. Gordon is surely correct that the rules governing privacy were different for married and unmarried people, both as early as the seventeenth century and 150 years later, at the time of the Constitution’s drafting. This remained the case even in 1965, when in Griswold v. Connecticut the Supreme Court invalidated a Connecticut law that barred married couples from attaining birth control. In his decision, Justice William Douglas argued that the institution of marriage, and the degree of privacy on which it was predicated, long predated the Constitution and, as such, were among the common-law rights that the Ninth Amendment meant to protect. The Court said nothing about the rights of unmarried people until seven years later when, in the case of Eisenstadt v. Baird, it struck down a Massachusetts law that barred unmarried persons from purchasing birth-control devices. It did so by invoking the Fourteenth Amendment’s equal-protection clause, which bars states from extending certain protections to some citizens but not to others. Writing for the majority, William Brennan found that “whatever the right of the individual to access to contraceptives may be, the rights must be the same for the unmarried and the married alike.” I realize that Mr. Gordon probably remains unsold on my argument that abortion was a common-law right in 1787 and, by any originalist or strict-constructionist reading of the Constitution, is covered by the Ninth Amendment. But as for the distinction between married and unmarried women, the Fourteenth Amendment made it impossible for the state to make that distinction, as indeed it made it impossible for the state to provide good schools for white children and substandard schools for black children.
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