Introduction: Sex and the Law

Vol. 38 No. 2

By

Aram A. Schvey is on the editorial board of Human Rights and serves as Policy Counsel for Foreign Policy and Human Rights at the Center for Reproductive Rights.

In America, sex is the ultimate contradiction. It is one of our most basic and fundamental urges, and yet one that has eluded simple understanding or classification. It is an intensely private act (usually) between two individuals, often performed behind closed doors, with the curtains drawn and the lights down low. But sex is also very public, whether splashed across the pages of tabloid magazines and Internet pornography sites or dissected by doctors or anthropologists. Sexuality is universal, yet it remains a taboo topic to discuss with anyone other than close confidants. Religious traditions sometimes treat sex as a divine gift from God and other times as a mortal sin. And our political representatives too often decry the evils of illicit sex and, at the same time, engage in it.

The law’s relationship with sex is, not surprisingly, a complicated one, with the law serving dual roles as punisher of sexual misdeeds and guarantor of sexual privacy. Of course, the line between punishable sexual misdeeds and protected sexual privacy is both blurry and continually in transition. Consensual homosexual intimacy, long punishable by law, is now protected by the Fourteenth Amendment’s Due Process Clause. And the military’s “Don’t ask, don’t tell” policy is poised to be left in the ashbin of history.

And yet, even as the Supreme Court has broadened its protection of sexual privacy between consenting adults, many topics at the intersection of law and sexuality remain unsettled—these are the subjects of this issue of Human Rights.

With nearly daily sparring on Capitol Hill and in state capitols about access to abortion and contraception, it is easy to forget that the bedrock cases establishing the right to access contraception and abortion services were decided more than 40 years ago. In 1965, the Supreme Court in Griswold v. Connecticut held that states could not prohibit access to contraception to married couples; only eight years later, the Court held in Roe v. Wade that the states could not prohibit abortion. Yet, as Nancy Northup explains in her article, neither landmark reproductive-rights decision was premised on a constitutional right to sexuality or sexual freedom or autonomy. Instead, both were based on a right to privacy—a seemingly solid foundation built upon what Louis Brandeis called “the most comprehensive of rights and the right most valued by civilized men.”

Gay rights, on the other hand, have been premised on a seemingly much shakier foundation—the right to sexual autonomy. The Court harshly rejected any such right in Bowers v. Hardwick, framing a case about the constitutionality of an anti-sodomy law as being about whether the Constitution confers “a fundamental right upon homosexuals to engage in sodomy”—a question that the Court quickly answered in the negative. But as time has progressed, the shaky sexual-autonomy-based foundation of gay rights solidified into a broader right of adults to sexual autonomy—the basis of the Court’s landmark decision in Lawrence v. Texas.

Today, the legal foundation upon which gay-equality rights are premised seems strong—both in the courts and in Congress—indeed, between the proliferation of states permitting gay marriage (by virtue of a court decision or legislation) and the relative silence that met Obama’s push to repeal “Don’t ask, don’t tell,” it is easy to forget that the very idea of gay equality gaining mainstream acceptance was unthinkable only fifteen years ago, when Congress enacted the Defense of Marriage Act—a then-mainstream piece of legislation that was supported even by liberal lion Paul Wellstone. And, in contrast, the more pedigreed line of cases upholding access to contraception and abortion by virtue of a right to privacy is under almost constant attack in our courts, Congress, and state legislatures.

Perhaps hoping to capitalize on the success the gay rights movement has enjoyed, supporters of polygamy are attempting to use a sexual autonomy argument to argue that “plural marriage” is simply an alternative lifestyle. But as Susan Deller Ross explains, the analogy between gay marriage and polygamy is fatally flawed. While gay marriage is premised on equality, polygamy is premised on inequality (indeed, even using the sex-neutral term “polygamy” is misleading because it nearly always manifests itself as polygyny (one man with multiple wives) rather than polyandry (one woman with multiple husbands)).

Of course, the sexual autonomy revolution that has propelled gay equality and even gay marriage into the mainstream has left some groups behind. Bethany Stevens addresses the structural barriers that disabled people face in today’s world in the form of both legal and political barriers. She forcefully explains that while many Americans’ conception of sexuality and sexual autonomy has broadened to include gays, lesbians, and bisexuals, it has not strayed meaningfully from its ableist roots.

HIV-positive individuals constitute another group that is often excluded from common notions of sexual autonomy. The idea that HIV-positive men and women would simply give up sexual contact for the rest of their lives has always been a ridiculous proposition—and one that is even more unrealistic in light of the fact that individuals are being diagnosed at an earlier age and, thanks to life-saving therapies, HIV is usually more of a chronic disease that can be managed rather than a death sentence. But sexuality in the context of HIV potentially pits the sexual autonomy and privacy rights of the positive person against the health of a discordant partner who does not know his or her partner’s status. Aziza Ahmed and activist Beri Hull explore the ways in which the legal system addresses—and fails adequately to address—the web of issues surrounding HIV-status disclosure.

Other articles in this issue address how we as a society regulate discussions about sexuality. Patrick Malone and Monica Rodriguez tackle the thorny topic of sexuality education, and the extent to which abstinence-only education is based more on notions of morality than on proven effectiveness in reducing teenage pregnancy or the transmission of sexually-transmitted infections.

But the legal and political quandaries don’t end with discussions of sexuality with children. Instead, the Internet age has opened up a tremendous Pandora’s box of legal questions. What are “community standards” in the twenty-first century, and is the entire concept outdated? What is “possession” in an age of streaming video and Internet-browser caches? Clay Calvert explores these issues and more in his article.

Americans’ particular squeamishness about sexuality doesn’t just affect American citizens. Indeed, as Heather Doyle explains, we are busy exporting some of our Puritan beliefs by forcing aid organizations to sign a pledge vying to oppose prostitution—even as these same groups are supposed to be doing HIV/AIDS-related work with commercial sex workers—a population that is especially vulnerable to the disease.

And finally, David J. Garrow looks back and salutes Estelle Griswold, and her colleague Dr. C. Lee Buxton, whose courage forced the Supreme Court to confront the question of whether states can prohibit the sale or use of contraception. Griswold and Buxton would no doubt be elated to hear of the recent news that the Department of Health and Human Services will adopt the recent Institute of Medicine panel’s recommendation and require insurance plans to offer no-copay contraception to women.

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