Margo Kaplan is an assistant professor of law at Rutgers School of Law-Camden. Her article “Sex-Positive Law” will appear in the New York University Law Review in April.
Emma Thompson recently declared that dancing with Prince Charles is better. Hunter S. Thompson wrote a book about how politics is better. Google lists thousands of cake recipes claiming to be better. Zeus and Hera debated whether it is better for women or for men.
But even if we can’t quite agree on what’s better than sex, the comparison suggests we take for granted that sex can be pretty good.
Which makes it all the more puzzling that our courts and legislatures are still strangely squeamish about sexual pleasure, tending to treat it as a topic to be avoided or an immoral indulgence the state should prevent. When they address sex, they often reveal their embarrassment by using Victorian-sounding euphemisms such as “an intimate relation of husband and wife” or awkwardly clinical terms such as “the physical act.” Other times, they express outright disgust. Supreme Court Justice Antonin Scalia warned that prohibiting states from banning sodomy might harken a nightmarish future in which states could not criminalize masturbation. Imagine.
Of course, judges and politicians have made great progress as far as attitudes toward the gay community and marriage equality. Just this year, the Supreme Court struck down a ban on the federal recognition of same-sex marriages and the number of states recognizing marriage equality more than doubled. But these moves don’t further sexual freedom in itself. Rather, antiquated attitudes about sexual pleasure have allowed for the persistence of bad laws that touch on everything from free speech to how we define and punish rape.
To the extent that courts and legislatures have shown any appreciation for the value of sex, it’s usually in the context of more traditionally acceptable goals. The Supreme Court, for example, is downright reverent toward sex as a component of strong marriages and successful procreation.
In Griswold v. Connecticut (1964), the court held that a law banning the use of contraceptives unconstitutionally infringed on the right to marital privacy. But the court made clear that it was primarily interested in protecting the “sacred precincts of marital bedrooms,” not the sex that happened there or elsewhere. Writing the majority opinion, Justice William Douglas waxed rhapsodic about marriage as “a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association . . . for as noble a purpose as any involved in our prior decisions.” The implication: Sex is bad, but marriage justifies its offense by directing it toward a socially acceptable purpose.
Eight years later, in Eisenstadt v. Baird, the court struck down a Massachusetts law denying unmarried people access to contraception. The opinion was less a green light for sex outside marriage than an acknowledgment that those who insist on having sex outside marriage have a right to avoid pregnancy. In fact, the court was oddly silent about the reasons people might want to have non-procreative sex in the first place. Instead, it spoke in terms of equal protection of unmarried couples and an individual’s right to decide whether to have children.
Even Lawrence v. Texas (2003), which struck down a sodomy ban and is widely considered a landmark case for sexual freedom, sidestepped any discussion of sexual pleasure. The opinion focused on the value of sex in committed relationships. “When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,” the court wrote. It was an odd fixation for a case that started with two men having casual sex. It’s admirable that the court acknowledged that sex isn’t always just about pleasure. But it’s disappointing that the court seemed to forget that sex can ever be just about pleasure.
Real progress toward sexual freedom would involve courts and legislatures recognizing that there’s value in sexual pleasure. And that would force judges and politicians to rethink the logic of various laws.
Sex-toy bans would have to go. Alabama defended its statute prohibiting the sale of “sexual devices and related orgasm stimulating paraphernalia” by citing “a legitimate legislative interest” in discouraging “prurient interests in autonomous sex” and “masturbation . . . for its own sake.” But if sexual pleasure is actually a good thing, such laws — which are also on the books in Georgia, Kansas and the District — don’t make any sense.
Recognizing sexual pleasure would also require state courts and legislatures to reevaluate the criminalization of sadomasochistic activities. Even consensual spanking can lead to an assault or battery charge in most states — a quaint policy now that everyone’s mother has a copy of “Fifty Shades of Grey.” Yet a world that values sexual pleasure would have to explain why voluntary spanking is regulated any differently than voluntary participation in contact sports or cosmetic surgery, which also bring risks along with perceived benefits.
Valuing sexual pleasure would also demand that the Supreme Court revisit its outdated approach to obscenity law. Right now, states may freely ban all material that depicts sexual activity “in a patently offensive way” and “appeals to the prurient interests.” First Amendment protections kick in only if the material has other serious value — literary, artistic, political or scientific — to redeem it. But a framework that values the sexual arousal of willing consumers would require a more coherent idea about what harm states are preventing by regulating this category of speech — and why obscenity should have less constitutional protection than speech that promotes violent fantasies, greedy dispositions or racist attitudes.
Recognizing the value of sexual pleasure doesn’t mean we have to value it above everything else — that there is nothing better than sex. We regulate other things that bring people pleasure all the time. Similarly, there may still be good reasons to regulate things like adultery, incest and prostitution — but we would have to take a harder look at the justifications for these regulations and their costs.
Without a doubt, valuing sexual pleasure would not mean people have license to experience sexual pleasure at the expense of another person’s rights. Child pornography should remain a serious offense, as should rape. In fact, valuing sexual pleasure could strengthen rape law. If we consider sex as something to be enjoyed and not merely endured, then sex should be characterized by enthusiastic mutual consent. Our laws should no longer permit aggressors to presume consent from lack of resistance or passive silence. We should elevate a woman’s right to choose whether and how to experience pleasure.
Valuing sexual pleasure would require us to regulate it more honestly. It would force us to have more informed discussions about legal issues ranging from free speech to consent in the bedroom. I’d like to think that courts, legislatures and voters are up to the challenge. So, let’s talk about sex.