The “Comstockery” of Justice Clarence Thomas

Posted on | November 3, 2022 | 2 Comments

Mike Magee

“When we think about the past, we think about history. When we think about the future, we think about science. Science builds upon the past, but also simultaneously denies it.” These are the words of Jim Secord, a Professor of History and Philosophy of Science at the University of Cambridge. His research and teaching are on the history of science from the late eighteenth century to the present, with a special focus on Darwinian evolution.

His perspective is especially relevant when it comes to the recent Dobbs decision. The history of this contemporary struggle is as clear as is the science disputed by modern day left and right. It began on March 7, 1844, with the birth of this man, Anthony Comstock, in New Canaan, Connecticut. Raised in a strict Christian home, his religiosity intensified during a two-year stint in the Union Army during the Civil War.

A member of the 17th Connecticut Infantry, he took great offense to the profanity and debauchery he witnessed in and among his fellow soldiers. With the strong support of church-based groups of the day, and as the self-proclaimed “weeder in God’s garden”, he sought out a purpose and found a political vehicle in New York City’s Young Men’s Christian Association, and parlayed that to a post as the United States Postal Inspector.

His overarching goal was to advance Victorian morality by stamping out smut, which by his definition included obscene literature, abortion, contraception, gambling, prostitution, and more. The political arm he created in 1873, The New York Society for the Suppression of Vice, was chartered by the New York state legislature, and included the twin mottos of “Morals, not Art and Literature” and “Books are feeders for brothels.”

Using local postal agents, his searches and seizures, whose subsequent sales were shared 50/50 with his own organization, bank rolled the lobbying of Congress necessary to pass the “Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use”, otherwise known as the Comstock Laws.

Pornography, contraceptive equipment, reproductive health literature, and books deemed risque’ or suggestive all fell into his crosshairs.

By his own account, prior to his untimely death on September 21, 1915, he had prosecuted 3600 defendants, seized 160 tons of obscene literature, enjoyed the active support of industry, the AMA, and the Catholic Church among others, and sparked equally restrictive and intrusive legislation in 24 states – one of those being Connecticut.

Along the way, he made powerful enemies. For example, in 1905 George Bernard Shaw, on hearing in London that his new play, “Man and Superman” had been removed from the New York Public Library, had this to say in a public letter published in the New York Times, “Dear Sir – Nobody outside of America is likely to be in the least surprised. Comstockery is the world’s standing joke at the expense of the United States. Europe likes to hear of such things. It confirms the deep-seated conviction of the Old World that America is a provincial place, a second-rate country-town civilization after all.”

It was not power but time that overtook Comstock. He died at age 71 in 1915, but his supporters fought on in an increasingly loosing battle throughout “the Roaring 20’s” and into the economic collapse of the nation, the Great Depression, and a looming war in Europe.

With World War II fast approaching, FDR and Justice Hughes weighed priorities and decided indecency was less of a threat to the country than venereal disease among the troops. The AMA lent its support as well, and drugstores responded to the laissez faire by stocking over 600 different “feminine hygiene” products.

But the final nail in the Comstock coffin was fittingly delivered in the crusader’s home state. The protagonist was Estelle Griswold, Executive Director of the Planned Parenthood League. Their first state office had opened in Hartford in 1935. In 1961, Griswold was arrested and fined $100 for providing contraceptives and birth control advice in their New Haven office.

That arrest led to a landmark suit in the Supreme Court with effects far beyond Comstock. On June 7, 1965, in a 7 to 2 decision, authored by Justice William O. Douglas, the Supreme Court issued a 7–2 decision and struck down Connecticut’s state law against contraceptives.

In the Majority Opinion, Douglas wrote: “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship. We deal with a right of privacy older than the Bill of Rights — older than our political parties, older than our school system.”

In justifying the decision, he introduced an astronomical term, penumbra – the partially shaded outer region of the shadow cast by an opaque object such as the Earth.

In Justice Douglas’s words, “The provisions of the Bill of Rights created ‘emanations’ of protection that created ‘penumbras’ within which rights could still be covered even if not explicitly enumerated in the Constitution.”

When the Dobbs decision that effectively reversed Roe v. Wade was handed down, Justice Clarence Thomas in a concurrence statement wrote, “…in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.” These cases respectively deal with legal contraception, anti-sodomy laws, and same-sex marriage.

Of course, the elephant in the room, is self-evident. If “privacy” at the intersection of health and intimacy resided in the protective shield of “penumbra”, how about health itself? But in a Clarence Thomas world, historic precedent and scientific progress be damned. Bodily autonomy is a product of the state. Health is a luxury, doled out in small measure only to those who toe the party line. Justice Thomas is George Bernard Shaw’s modern day embodiment of “Comstockery.”

As Darwin himself wrote in On the Origin of the Species and Jim Secord recounted, “Nature, like a careful gardener, thus takes her seeds from a bed of a particular nature, and drops them in another equally fitted for them.” But for Donald Trump and his followers, the dropping in and dropping out involves legal gymnastics that provide cover, as they borrow from science and reverse the course of history, through sleight of hand and purposeful slip of phrase. And as they reverse science and distort history, what is unnatural becomes natural, and rights become privileges.