In Sex in the Constitution, Geoffrey Stone—formerly dean of the University of Chicago’s law school—explains how the American legal system dealt with attempts to regulate sexual relations from colonial times until the present day, giving particular attention to the ways legislation regarding sex ran up against the religious freedoms guaranteed by the First Amendment. Andrew Koppelman finds the book “a remarkably clear articulation of a very common [but] crude view of the appropriate relation between politics and religion”:

Stone thinks that the controversies over legal regulation of sexuality were, at their core, religious. . . . The struggle is one between good secularism and bad religion. . . . The struggle is not only about sexual freedom. It is also about containing the dangerous power of religion. . . . [T]he book reads like an indictment of the dangerous and tyrannical impulses of religious dogma. Yet the religious are not the bad guys in the story of modern sexual liberation. . . .

[For instance], Stone emphasizes the [Constitution’s] framers who sought to contain religion for rationalistic reasons. But American disestablishment was equally the creation of dissenting Protestants who thought that state support tended to corrupt the true faith. Religious fanatics like John Milton and Roger Williams advocated disestablishment a century before the Enlightenment. The Christians’ indispensable role in disestablishment presents a problem for Stone’s vision of a politics purged of religious influence. . . .

[But the more important question is this:] how bad is it if a law’s supporters are religious? Stone notes that when Californians voted against same-sex marriage in 2008, “the voting patterns made crystal clear” that the law was “a successful effort by persons holding a specific religious belief to use the authority of the law to impose their belief on their fellow citizens.” . . . The argument implies that the support of religious people is a kind of constitutional poison, contaminating and invalidating otherwise legitimate statutes. Of what use then is their right to vote?

To Peter Berkowitz, the rot in American institutions of higher learning exposed by Tuesday’s hearings resembles a disease that in its early stages was easy to cure but difficult to diagnose, and now is so advanced that it is easy to diagnose but difficult to cure. Recent analyses of these problems have now at last made it to the pages of the New York Times but are, he writes, “tardy by several decades,” and their suggested remedies woefully inadequate:

They fail to identify the chief problem. They ignore the principal obstacles to reform. They propose reforms that provide the equivalent of band-aids for gaping wounds and shattered limbs. And they overlook the mainstream media’s complicity in largely ignoring, downplaying, or dismissing repeated warnings extending back a quarter century and more—largely, but not exclusively, from conservatives—that our universities undermine the public interest by attacking free speech, eviscerating due process, and hollowing out and politicizing the curriculum.

The remedy, Berkowitz argues, would be turning universities into places that cultivate, encourage, and teach freedom of thought and speech. But doing so seems unlikely:

Having undermined respect for others and the art of listening by presiding over—or silently acquiescing in—the curtailment of dissenting speech for more than a generation, the current crop of administrators and professors seems ill-suited to fashion and implement free-speech training. Moreover, free speech is best learned not by didactic lectures and seminars but by practicing it in the reasoned consideration of competing ideas with those capable of challenging one’s assumptions and arguments. But where are the professors who can lead such conversations? Which faculty members remain capable of understanding their side of the argument because they understand the other side?