The Supreme Court letting states mandate morals will end badly


The Supreme Court’s decision in Dobbs v. Jackson Womens Health Organization overturned Roe v. Wade, opening the door for states to impose a conservative Christian moral agenda on people who don’t share such beliefs. We have been here before.

A case from more than a century ago, in which the court furthered the imposition of a particular moral agenda, indicates a disastrous path ahead — with new discriminatory laws that trample upon rights and freedoms.

At the turn of the 20th century, the United States experienced a revolution in manners and morals. Concentrated areas of nightclubs, saloons, gambling parlors, brothels, dance halls, bars, cheap hotels and opium dens sprang up in the nation’s burgeoning cities. Their visibility — amplified by an increasingly sensationalist press — aroused moral panic, particularly among those who feared a rejection of religion and decency.

Prostitution was a particular worry. Most White Americans subscribed to the idea that White women were inherently sexually chaste. In contrast, they deemed recent immigrants, African Americans and other people of color to be inferior, rendering the women more susceptible to prostitution. Given these beliefs, the increased visibility of American-born White women in urban prostitution in the early 20th century created an urgent moral panic among White Americans.

Since they believed in the inherent purity and sexual passivity of White women, they saw only one explanation for this behavior: Innocent young women had been lured by the falsehoods of evildoers (often described in the press and political rhetoric as immigrants), then victimized by brute force into becoming sexual enslaved people for hire. This White slave panic reached a fever pitch between 1908 and 1913.

Rep. James Robert Mann (R-Ill.) championed paternalistic government protection of White American womanhood as a solution. In 1910, Congress passed the White-Slave Traffic Act, better known as the Mann Act, in recognition of its sponsor. The Mann Act made it a felony for “any person” to “knowingly transport … in interstate or foreign commerce … any woman or girl for the purpose of prostitution or debauchery, or for any other immoral purpose.”

Even the congressional opponents of the Mann Act did not object to efforts to police morality, nor did they question the degree of the problem. Instead, they denied that the federal government held the constitutional power to pass such a law and preferred letting the states act. Southern representatives — cognizant of the risks to Jim Crow segregation if the federal government grew too powerful — charged that the act violated states’ rights by giving the federal government unlimited power in “regulating the morals and health of a sovereign state.”

Despite the fearmongering, police never uncovered the international White slave syndicate that Mann and others insisted was thriving. Instead, the Mann Act became a tool to persecute men who flouted society’s standards, like African American heavyweight boxing champion Jack Johnson, who ultimately served time for consorting with a White prostitute.

One of the most famous early Mann Act prosecutions exposed the staggering ramifications of the law. Maury I. Diggs and Farley Drew Caminetti were married fathers who were dating unmarried women, Marsha Warrington and Lola Norris. All four were from prominent Sacramento families, and for months, the public antics of the two illicit couples shocked California’s capital. They headed for Reno in the hopes of letting the gossip die down. But instead, police jailed Diggs and Caminetti on a variety of charges, including violation of the Mann Act. Their real crime, however, was having affairs.

Mann himself saw the case as a test of not just his legislation but of the very soul of the nation. So did prosecutors and the press. The case made national headlines.

Diggs faced trial first before an all-male jury — although California had granted women the right to vote in 1911, their right to jury service was not formally enacted until 1917. When the defense began to make its case that the two young women went willingly to Reno, Judge William Van Fleet broke in to say that the motives and character of Warrington and Norris had no bearing on the case. Women’s consent and desires were immaterial.

The jury found Diggs guilty of transporting Warrington and Norris to Reno for immoral purposes.

During jury selection for Caminetti’s trial, Van Fleet again made clear that the White-Slave Traffic Act was designed to criminalize immoral behavior: “There is no such thing as a personal liberty to commit crime, and the sooner people ascertain that fact the better it will be for society.” Caminetti also was found guilty.

Then, as now, many were convinced that the legal system could remedy what they saw as a society run morally amok. Others, including Warrington, saw a gross violation of individual freedom, bodily autonomy and women’s right to sexual agency. After Diggs’s wife divorced him, Warrington and Diggs married in 1915 (a union that lasted until Diggs’s death in 1953). The woman who was “protected” by the Mann Act proclaimed that the trial had broken them both “in fortune and in reputation, in family, in spirit.” She stated plainly that her husband was “punished for a crime he did not commit. He is not now, and he never was, a white slaver. We were of age and we went for reasons not immoral. There was no compulsion.” Her protests went unheeded because the convictions served a far larger agenda.

According to the Sacramento Bee, the men’s punishment “will be a splendid thing for the moral atmosphere of California. It will put the fear of the law, if not of God, into the hearts of despicable wretches who make seduction of young girls their chief pastime.” The Bee concluded that every state should pass intrastate versions of the Mann Act, which could be used to declare an all-out war on lax morals.

In 1916, the Supreme Court heard appeals from Diggs and Caminetti. Their counsel, former senator Joseph W. Bailey (D-Tex.) railed, “Our humanity revolts at the thought of punishing a moral lapse as a felony, and no law which does so can be properly enforced.”

The court, however, ruled that because the wording of the law included “any other immoral purpose,” the Diggs and Caminetti verdicts must be upheld. While the majority affirmed that Congress could not legislate morality within the individual states, it also made clear that Congress could make illegal any extramarital sex that involved crossing state lines. In dissent, Justice Joseph McKenna shared the concern that the words “any other immoral purpose” formed a phrase so broad as to cover “every form of vice, every form of conduct that is contrary to good order.”

The decision relieved Americans who had been disturbed by a society in flux that challenged traditional views of gender and family. They saw the case (and the Mann Act) as bulwarks against new ideas about acceptable behavior between men and women, and especially about White women’s right to sexual agency.

As legal scholar Lawrence Friedman notes, the Mann Act enabled “busybodies, people with grudges, outraged husbands, wives, parents, and miscellaneous others” to allege violations of the law in discriminatory ways that ruined lives. The FBI opened nearly 50,000 investigations just between 1921 and 1936. Some convictions, like those in the Caminetti-Diggs case, involved consensual extramarital sex. African American men who pursued women outside their race were targeted, including actor Rex Ingram (1949) and musician Chuck Berry (1962). The law also proved a powerfully effective way to punish famous White men for their left-of-center politics or flouting of social norms. Authorities filed Mann Act charges against sociologist William I. Thomas (1918), architect Frank Lloyd Wright (1926), British poet George Baker (1940) and film legend Charlie Chaplin (1944).

This abuse of the law changed only when amendments to the Mann Act in 1978 and 1986 transformed it into an important tool to fight sex trafficking.

As the history of the Mann Act show, the Dobbs decision opens the door for legislators to pass laws that — far from protecting morality — will instead trample women’s sexual agency and create and perpetuate new injustices.

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