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. ...