Kim Shayo Buchanan, Lawrence v. Geduldig: Regulating Women's Sexuality

• Jurisdiction: United States,Federal
• Publication year: 2007
• Citation: Vol. 56 No. 4

LAWRENCE V. GEDULDIG: REGULATING WOMEN'S SEXUALITY

Kim Shayo Buchanan^*

INTRODUCTION ............................................................................................ 1236

I. SEXUAL REGULATION: COERCING WOMEN, LIBERATING MEN ....... 1239

A. The Laws of Paternity: Boys Will Be Boys ............................... 1241

B. Masturbation: Obscenity, Prurience, and Normal, Healthy

Sex ............................................................................................ 1246

C. Regulation of Women's Sexuality: Punishing Sex .................... 1254

II. EQUAL SEXUAL LIBERTY ................................................................. 1270

A. Due Process Liberty in Lawrence: Promise and

Disappointment ........................................................................ 1270

B. Equal Protection After Geduldig .............................................. 1282

1. Gender-Neutral Pregnancy ................................................ 1282

2. Pregnancy-Based Justifications for Sex Discrimination .... 1284

3. Constitutional Rights: The Abortion Discount ................... 1290

C. Equal Sexual Liberty ................................................................ 1294

CONCLUSION ................................................................................................ 1302

INTRODUCTION

The Supreme Court's 1974 decision in Geduldig v. Aiello¹established that, for the purposes of the Equal Protection Clause of the Fourteenth Amendment, discrimination against women on the basis of pregnancy was not sex discrimination.²Because the Court deemed governmental classifications based on pregnancy to be constitutionally innocuous, they were not entitled to the heightened scrutiny accorded to governmental classifications based on sex. This decision was subject to immediate and sustained criticism.³Many state courts declined to follow it,⁴and Congress⁵and many state legislatures rejected it, enacting statutory prohibitions on discrimination against pregnant women.⁶

Nonetheless, Geduldig is not a dead letter: Doctrinally, it continues to "ma[k]e it more difficult to claim that reproductive freedom is an aspect of sex-based equality."⁷Geduldig's legacy shapes equal protection analysis in three important ways: (1) it deems pregnancy-based government classifications to be facially neutral with respect to gender; (2) it allows governments to advance pregnancy, or women's capacity to become pregnant, as a justification for government-imposed sex classifications that, in practice, enforce traditional gender roles; and (3) its reasoning justifies a deferential approach to government action that infringes the equal protection and due process liberty rights of pregnant women.

This Article contends that Lawrence v. Texas⁸offers an opportunity to disrupt the Geduldig paradigm. In Lawrence, the Supreme Court recognized a due process liberty interest of adults to be free from governmental interference in decision making about private, consensual sex. The majority opinion in Lawrence is ambiguous as to whether the sexual liberty right was fundamental. It elides the question of the standard of review applicable to sexual liberty claims,⁹and lower courts have construed the scope of the right quite narrowly.¹⁰But whatever the scope and nature of due process sexual liberty, equal protection requires that women must enjoy it equally with men.¹¹

Geduldig's conclusion rests on the naturalistic assumption that pregnant women are not similarly situated to men in any constitutionally relevant way.¹²

But women, whether pregnant or not, are similarly situated to men with respect to their interests in sexual autonomy and reproductive control.¹³The Supreme

Court has recognized that both women and men have constitutional interests in being able to "organiz[e] intimate relationships and ma[k]e choices that define their views of themselves and their places in society . . . [and] to participate equally in the economic and social life of the Nation."¹⁴As Erin Daly has pointed out, "If these rights are so important as to implicate the constitutional right to liberty, they must be available to women and men on an equal basis."¹⁵

Lawrence offers an opportunity for courts to reject Geduldig's legacy without having to challenge the long-established "similarly situated" test.¹⁶By affirming a right to sexual autonomy, Lawrence reorients the equal protection analysis. Rather than comparing men to women during pregnancy, an equal sexual liberty analysis compares the sexual liberty accorded to men and women at the moment of (hetero) sex. At that moment, the man and woman have equal due process interests in deciding how to conduct their private lives in matters pertaining to sex, and their conduct carries equal potential to create fetal life.

An equal sexual liberty approach to sexual regulation-one that affirms that women enjoy rights to sexual autonomy equal to those of men-would put governments to a stringent standard of justification when they impose legal, social, financial, or health burdens on women's sexual expression that are not imposed on that of men. In particular, equal sexual liberty requires heightened scrutiny of state action that enforces traditional gender roles by binding women to the reproductive consequences of heterosexual activity while excusing men.

In practice, governments impose countless forms of gendered sexual regulation that operate in exactly this way, as is described in Part I of this Article. Laws that regulate sexual activity typically invoke women's pregnancy or their capacity to become pregnant, as justification for reinforcing traditional gender roles.¹⁷Such laws typically safeguard men's ability to engage in nonmarital sexual activity without legally imposed consequences, while imposing reproductive burdens that coerce women into compliance with gender norms that demand premarital virginity, marital fidelity, and mandatory motherhood. Geduldig thus carves out an exception to gender equality that threatens to swallow the rule.

Part II of this Article develops the equal sexual liberty argument. Part II.A reviews the initial promise of Lawrence and its disappointing implementation: Lower courts apply a deferential form of rational-basis scrutiny to due process sexual liberty claims in ways that protect individuals against criminal bans on sodomy, adultery, and fornication, but offer few protections beyond this narrow scope. Where legislation restricts sexual liberty in a way that discriminates on the basis of sexual orientation, though, state appellate courts have used a form of equal sexual liberty analysis to justify a "more searching"¹⁸level of equal protection scrutiny. Part II.B addresses Geduldig's legacy in equal protection jurisprudence. While the Supreme Court has long been skeptical of arguments based on reproductive physiology when they are used to exclude women from public life,¹⁹it has been remarkably credulous of such rationales when the impugned laws are understood to regulate sexual activity.²⁰Moreover, the Supreme Court and federal appellate courts have repeatedly suggested that the normally rigorous level of scrutiny applicable to women's equal protection claims of sex discrimination is somehow attenuated when pregnant women seek to vindicate their abortion rights-a phenomenon I describe as the "abortion discount." By refocusing equality jurisprudence on the regulation of sex rather than pregnancy, Lawrence reaffirms that women's equal protection rights against governmental reproductive coercion are as compelling, if not more so, in the context of sexual activity as compared to economic activity. Finally, Part II.C considers the shape of the equal sexual liberty analysis and explores its promise and pitfalls.

I. SEXUAL REGULATION: COERCING WOMEN, LIBERATING MEN

Sexual regulation has always been gendered. While the law extends a marked solicitude to the right of men to have nonmarital sex without incurring unwanted reproductive consequences, it visits the legal, financial, health, and reproductive burdens of unmarried sex exclusively on women²¹and attributes the disparate treatment to nature.²²Judicial and legislative sexual regulation relies on "the premise that women's reproductive role is dictated by nature, and that regulation of women's reproductive conduct can be evaluated by consulting facts of nature. The result is that social relations enforced by the body politic often find constitutional justification in the organization of the female body itself."²³

Unlike the Supreme Court in Geduldig, many foreign courts and international tribunals have recognized that discrimination against pregnant women is sex discrimination.²⁴Similarly, sources of international law suggest that restrictions on abortion, contraceptive information, and reproductive health care violate women's right to equality, as well as their rights to life and health.²⁵

Although many of the legal rules and practices described in this section might not satisfy the discriminatory purpose requirement²⁶for equal protection sex claims based on disparate impact, they are not facially neutral. "They are too gendered to be neutral, and any law on rape or pregnancy affects the sexes differentially, without necessarily being discriminatory."²⁷An equal sexual liberty analysis may discredit the underpinnings of Geduldig by exposing the ways in which such rules and practices reinforce gender stereotypes²⁸so that regulations of sex, pregnancy, and reproduction, though not malicious, might be identified as the facial sex classifications they are.

The gendered regimes of sexual regulation described in this Part require the sacrifice of women's health, liberty, and autonomy to uphold legislative conceptions of sexual morality. The legal coercion of sexual morality is typically interpreted in a way that requires the control, surveillance, and punishment of women, but rarely of men.

A. The Laws of Paternity: Boys Will Be Boys

...