Laura A. Rosenbury & Jennifer E. Rothman, Sex in and Out of Intimacy

• Publication year: 2010

SEX

IN AND OUT OF INTIMACY

Laura A. Rosenbury^*

Jennifer E. Rothman^**

The state has long attempted to regulate sexual activity by channeling sex into various forms of state-supported intimacy. Although commentators and legal scholars of diverse political perspectives generally believe such regulation is declining, the freedom to engage in diverse sexual activities has not been established as a matter of law. Instead, courts have extended legal protection to consensual sexual acts only to the extent such acts support other state interests, including marriage, procreation, and, most recently, the development of enduring intimate relationships.

Courts and scholars have largely failed to consider whether sexual activity might serve any valuable purposes independent of these aims. The few cases generally credited with establishing constitutional rights to sex, on closer examination, actually have little to do with sex acts themselves. Cases concerning contraceptives and abortion, for example, although involving the potential procreative effects of sexual activity, have very little to say about the legitimacy or illegitimacy of state regulation of the underlying sexual conduct.¹

The most recent Supreme Court case ostensibly protecting sexual activity, Lawrence v. Texas,²also can be narrowly construed to protect sexual conduct only when such activity promotes emotional intimacy. In holding that same- sex couples possess a liberty right to engage in sodomy,³the Court emphasized that sexual acts, including anal sex between two men, "can be but one element in a personal bond that is more enduring."⁴The Court therefore did not declare that consenting adults enjoy the freedom to engage in all forms of sex. Instead, the Court suggested that sex deserves constitutional protection only when potentially in the service of emotional intimacy. That analysis in many ways fulfills the goals set forth in Kenneth Karst's influential article, The Freedom of Intimate Association.⁵Karst identified an underlying state interest in promoting intimate associations between individuals and developed a system of values that justified constitutional protection of such associations.⁶The Court in Lawrence acknowledged that sexual activity can play a crucial role in forming and sustaining intimate associations and accordingly protected sex in that context.⁷

Although protecting intimate associations from governmental intrusion is vitally important, relying on that rationale to protect sodomy furthers a form of sexual regulation that Lawrence was originally thought to abolish. Lawrence has not spurred a "libertarian" sex revolution, as some had feared and others had hoped.⁸Most courts have narrowly construed Lawrence to uphold various regulations of sexual activity.⁹Indeed, after Lawrence, judges have made their own judgments about which sex acts promote the type of intimacy protected by Lawrence. Sex toys, no (at least in Alabama). Oral and anal sex, yes-though only in one's own home and for free. Sex clubs and group sex, no.

Fornication, yes-at least most of the time. Bondage and sado-masochism, no. Strip clubs, yes. Prostitution, no.¹⁰

This Article challenges the underlying assumption in Lawrence that sex is valuable only when potentially in service to emotional intimacy and proposes a new theory for extending legal protection to a wider range of consensual sexual activities. The current regulation of sex devalues both sexual relationships that lack an intimate component and intimate relationships that lack a sexual component. We argue that the state should independently protect both intimate relationships and sexual interactions because sex can constitute a vital part of individual identity and self-expression even when not channeled into intimacy. Other legal scholars have argued that intimate sexual relationships should be protected outside of marriage,¹¹or that sex and marriage should be separated from state support for families.¹²Our project is unique in that we extend the deconstructive project to intimacy in general, arguing that sex should be decoupled in the legal sphere from both domestic relationships and other traditional forms of emotional intimacy. We thus challenge the dominant, almost sacred, understanding that the most important relationships between adults should always be both sexual and emotionally intimate.

In Part I, we briefly discuss the current sex-negative landscape. We examine the legal and social structures that discourage sexual activity outside of emotionally intimate relationships and that deter openness about the potential diversity of sexual experiences. In Part II, we discuss the limits of Lawrence and the problems that flow from its romantic rhetoric. Although the Supreme Court in Lawrence could have liberated sex, it provided another avenue for confining it.¹³In Part III, we then examine in more detail some of the consequences of protecting sex only when it potentially serves emotional intimacy. Among other things, we illustrate how the vision of sexuality adopted in Lawrence is gendered, viewing sex as the primary avenue through which men can become emotionally intimate.

In Part IV, we turn to alternative conceptions of sex and intimacy. We discuss ways that sex can have value even in non-intimate circumstances and challenge the notion that relationships are more valuable or more emotionally intimate when there is a sexual component. At the same time, we contend that sex can maintain its relational and generally intimate character even if it is not always tied to emotional intimacy. Sex could become intimate and intimacy could become sexual in new ways. Sex might even eventually lose its status as an exceptional activity with unique values and dangers. As long as sex retains its exceptional status, however, we contend it is deserving of the same protection extended to intimate association. Therefore, in Part V, we consider how the values furthered by alternative constructions of sex and intimacy could support a constitutional right to engage in consensual sexual activity without regard to the motives or goals behind the activity.

I. THE SEX-NEGATIVE LANDSCAPE

The coupling of sex with emotional intimacy is one aspect of a broader social construction of sex that promotes a narrow vision of acceptable sexual expression and conduct and stigmatizes other visions. A number of theorists have analyzed and critiqued this sex-negative construction, including theorists as diverse as Michel Foucault,¹⁴Gayle Rubin,¹⁵Leo Bersani,¹⁶Brenda

Cossman,¹⁷Catharine MacKinnon,¹⁸Adrienne Rich,¹⁹and Steven Seidman.²⁰

These theorists, among others, emphasize that myriad social and cultural forces sustain the construction of sex in complex and diverse ways.²¹The state is one of these forces given its promulgation of laws prohibiting or penalizing some forms of consensual sex, as well as its role in recognizing and privileging certain relationships assumed to be sexual, particularly marriage.²²As such, the law constitutes one perspective from which to critique the current social construction of sex.

We engage in such a legal critique to expose, examine, and challenge those aspects of legal discourse and doctrine that posit emotionally intimate contexts as the only legitimate site for adult sexual activity. A purely legal critique is unlikely to transform the current construction of sex given that so many extralegal factors also contribute to that construction. Legal discourse about sex has also undoubtedly been shaped by such extralegal forces, making it difficult to identify legal effects separate from the effects of other forces. Despite these limitations, legal critique is a necessary component of any challenge to the current construction of sex given the law's power to endorse certain sexual practices while ignoring or punishing others.²³

Moreover, legal scholars should care about challenging the current construction of sex, both within the law and outside of it, for at least two related reasons. First, the construction, and laws that contribute to it, benefit some individuals while harming others, thus conflicting with norms of equality and individual liberty. The vision of acceptable sexual activity furthered by the current construction of sex is primarily modeled on heterosexual, monogamous couples, thus channeling sex into a domesticated and gendered form.²⁴Individuals who do not adhere to this vision are stigmatized as being hypersexual, asexual, criminal, or otherwise deviant. Those who engage in sex outside of emotionally intimate contexts, or without the prospect of developing an ongoing emotional bond, are often dismissed as engaging in "meaningless," "casual," or "promiscuous" sex.²⁵On the flip side, those who prioritize relationships that do not have sexual components are often dismissed as engaging in relationships that are less stable, mature, and valuable than sexually intimate ones.²⁶

Second, legal analysis plays a role not just in creating the current construction of sex but also in naturalizing that construction, thereby obscuring the ways the construction can be challenged and changed. Legal scholars contribute to this naturalization when they argue that most sexual activity takes place in a zone outside of the law or that the law merely reflects and supports pre-existing social practices.²⁷Although the role of the law should not be overstated, placing sex outside the law reinforces the notion that sexual practices are primarily innate or biological, rather than the product of social and cultural forces.²⁸By examining the current construction of sex and the law's role in that construction, legal scholars can instead expose and critique its constructed nature.²⁹

A. Law and the Construction of Sex

Until the Court's decision in Lawrence, criminal law and family law long worked in tandem to channel perceived sexual vice into protected forms of intimacy. Criminal law traditionally prohibited and punished a wide range...