The (Non)-Right to Sex

BY MARY ZIEGLER, 69 U. Miami L. Rev. 631 (2015).

Introduction: With the growing influence of the marriage equality movement, scholars have criticized the “domesticated liberty” pursued by activists and ratified by the Court. The privileging of marriage and marital-like relationships has prompted intense debate within the gay rights community. Some see access to marriage as a quintessentially progressive project—the recognition of the equality and dignity of gay and lesbian couples. For others, promoting marriage and marital-like relationships reinforces bias against individuals making alternative intimate decisions. With compelling policy arguments on either side, the debate appears to have come to a standstill.

By telling the lost story of efforts to expand sexual liberty in the 1960s and 1970s, this Article offers a new way into the debate. The marriage equality struggle figures centrally in a longer narrative about the omission of sex—rather than committed relationships or marriage— from the constitutional canon. By recapturing this narrative, we can identify powerful doctrinal constraints confronting the contemporary marriage equality movement. As importantly, the story of the “non-right to sex” provides a compelling historical parallel to this movement. The mistakes of past decades illuminate dangers inherent in contemporary marriage equality tactics.

This Article begins the story of the non-right to sex in the 1960s and 1970s, when progressives confronted a backlash against a perceived increase in illegitimacy rates. Some attorneys and activists viewed the illegitimacy backlash as evidence of the intersectionality of race discrimination, sex discrimination, and the denial of sexual liberty. Often, however, progressive social movements presented themselves as defenders of conventional sexual morality, arguing that the reform of laws on illegitimacy, contraception, and abortion would strengthen traditional sexual norms. These arguments helped progressives achieve incremental progress. At the same time, progressives reinforced the State’s ability to regulate sexual behavior. Progressives’ strategy contributed to the conspicuous absence of sex from the Supreme Court’s foundational equal protection and substantive due process decisions.

This Article makes an important contribution to the theoretical and historical literature on the relationship between equality and liberty jurisprudence under the Fourteenth Amendment. Other scholars have foregrounded the limits of the constitutional protections set forth in Lawrence v. Texas, a decision striking down sodomy bans. This Article adds a new dimension by showing that Lawrence’s domesticated liberty came as a logical extension of the Court’s past treatment of sexual freedom. As this Article shows, Lawrence’s limits reflect a larger gap in American constitutional law.

Moreover, this Article reveals unanticipated costs tied to otherwise promising incremental strategies for legal and social change. Progressives paid lip service to the evils of illicit sex in an effort to gradually chip away at discrimination against minorities, sexual dissenters, and women. This tactic had unexpected consequences, because cause attorneys sometimes helped to entrench a legal and cultural status quo.

For the marriage equality movement, this history builds on existing scholarship exploring the potential disadvantages of marriage equality litigation. Some proponents of marriage equality have battled to separate their cause from any demand for rights for those engaging in other forms of stigmatized conduct, reaffirming the State’s power to distinguish licit from illicit sex. In the past, similar strategies have been costly. Incremental tactics may promise realistic social change, appealing to the concerns of cautious judges, allowing democratic debate to unfold outside the courts, and minimizing the chances of backlash. As the history studied here shows, however, incremental tactics may inadvertently entrench the status quo.

This Article proceeds in four parts. Part II positions the marriage equality struggle in a longer narrative about battles to expand sexual liberty. This Section begins the narrative by exploring the illegitimacy backlash of the 1960s and 1970s. In that period, illegitimacy discourse served as a convenient vehicle for discomfort with the changing status of racial minorities and women. Some feminists, welfare-rights activists, civil libertarians, and civil rights leaders saw the illegitimacy backlash as an opportunity to elaborate on the connections between sexual pluralism, race discrimination, and sex discrimination.

As Part III shows, in other instances, activists in organizations like the American Civil Liberties Union (“ACLU”), the National Urban League (“NUL”), and the National Association for the Advancement of Colored People (“NAACP”) leveraged discomfort with female sexuality to build support for their chosen reforms. A similar strategy sometimes informed the equal protection litigation pursued by such groups. Attorneys working with the ACLU and NAACP compared discrimination on the basis of race to illegitimacy. This analogy allowed activists to reason about race in novel ways, highlighting the use of proxies for race discrimination and racially disproportionate impacts. Nonetheless, the race analogy presented illegitimate children as the victims of their mothers’ immorality. Indeed, attorneys and activists conceded that the State could punish women as long as they did not harm innocent children.

As Part IV explains, the abortion-rights movement borrowed from this strategy in challenging laws on contraception and abortion. Some feminists framed abortion and contraception as part of a larger campaign for sexual liberty for women. However, the mainstream abortion-rights movement mostly avoided any challenge to the status quo, insisting that reform would not increase “sexual promiscuity.” Instead, the movement drew on a rich psychiatric discourse describing the harms women suffered as the result of both unintended pregnancy and sexual mistakes.

Parts III and IV document the impact of these strategies on the Court’s equal protection and due process jurisprudence of the late 1960s and 1970s. In Eisenstadt v. Baird, Roe v. Wade, and a line of cases involving illegitimacy, the Court reaffirmed the existence of a broad State authority to deter illicit sex. Expanding reproductive freedom and fair treatment for non-marital families came with little discussion of sexual liberty.

Part V explores the normative implications of this history. This Section evaluates how a more historically grounded understanding of the relationship between sexual freedom and marriage equality could help cause lawyers more productively advance intimate pluralism. Part VI offers a brief conclusion. . . . Full Article.

Recommended Citation: Mary Ziegler, The (Non)-Right to Sex, 69 U. Miami L. Rev. 631 (2015).

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