Sex as a form of gender and expression after Lawrence v. Texas.

• Author: Garland, James Allon
• Position: Sexuality and the Law

The Supreme Court's decision in Lawrence v. Texas (1) has been touted in many circles as a significant gay rights opinion, (2) but it is much more than that. While it is certainly the first decision of the Court to recognize a constitutionally protected interest in same-sex intimacy, (3) it is even more significant as the first opinion from the Court to speak positively about sex without reference to procreation, (4) recognizing that sex can be a valuable form of "expression" that "can be but one element in a personal bond that is more enduring." (5) The reference is brief and unexplained, but has greater constitutional resonance when compared to the Court's prior relegation of sex to "myster[y]" and a "sensitive, key relation to human existence." (6)

The Court's willingness to characterize sex as a possible form of expression is particularly remarkable, considering how little judicial and scholarly support the argument has found. (7) For some, it may be difficult to accept that sex could be communicative without a public audience, (8) even though the Court has held that private communication, such as a conversation, is protected by the First Amendment. (9) For others, only traditional coital sex expresses appropriate values, (10) even though it is precisely this attempt to monopolize conduct for a particular point of view that triggers strict scrutiny of conduct alleged to express ideas. (11) Or perhaps it is all that sex entails--the physical exertion, the concentration on technique, the sweat, the noises and curious silences, the pursuit of orgasm, the hope or fear of procreation, and frankly sometimes simply too much or too little going on wherever it all takes place--that just seems so unusual for "speech," making a mess of the idea of expression in the midst of sex, or at least sex as some know it.

But the Supreme Court has repeatedly made clear--twice now in the context of conduct used to express a sexual point of view (12)--that "a narrow, succinctly articulable message is not a condition of constitutional protection," and that a message may be protected even if it as abstract or perplexing as the "painting of Jackson Pollock, music of Arnold Schoenberg, or Jabberwocky verse of Lewis Carroll." (13) And Lawrence's brief but carefully qualified statement about the expressiveness of sex is entirely consistent with its expressive conduct doctrine, open to the idea that the parties might engage in sex to express a feeling or idea. (14)

The absence of such arguments may be precisely what has made it easy for courts to choke feelings and ideas from their portrayals of sex as mere conduct, striking at sexual nonconformists, often at the most vulnerable and intimate moments in our lives. In the days of Bowers v. Hardwick, (15) the Court had evidence before it that, for gays and lesbians, as for all people, sex can be an important means to express love and intimacy. (16) But, without the doctrinal development of First Amendment claims for sex, the Court demeaned sex as mere conduct. (17) Given that, the Lawrence majority's recognition of the thoughts and feelings injured by laws policing sex is not only a potential doctrinal watershed, it is utterly touching.

This Article elaborates on the theory of sexual expression floated in Lawrence in two ways. Part I summarizes generally why the Court's expressive conduct doctrine, aided by Lawrence, should permit future litigants to make expressive conduct and association claims for sex. But while Lawrence may effectively protect all private, noncommercial, consensual, adult sex between two adults from criminal prosecution, it leaves a great deal of sex, as well as a great deal of expression, unprotected from injury by government forces, as Part II of this Article details. (18) Of particular note, Lawrence's silence on the array of gender expression lost to the punishment of noncoital sex would be deafening but for the Court's brief suggestion that a liberty interest in sex should not depend on the gender of the parties involved. (19) While its substantive boosts to future First Amendment claims may lie primarily in depriving governments of arguments that noncoital sex is inherently harmful, Lawrence's cryptic references to expression, I contend, virtually invite future First Amendment claims for sex.

Despite charges that expressive claims for sex romanticize it, (20) First Amendment arguments pose no threat of normalizing any view of sex, as Part III of this Article explains. Rather, recognition of sex as a form of expression not only requires openness to claims that sex can be important as a means to express sexually diverse points of view, but should also encourage more discourse about sex by requiring governments to justify sex regulation with more thoughtful reasoning rather than simply declaring sex "good" or "bad" on moral grounds. With lower courts already narrowing Lawrence, (21) First Amendment claims may be precisely what are required to flesh out the protection of sex in this way and give individuals full control of consensual sex and its meanings.

1. LAWRENCE AND THE PARTIAL LIBERATION OF SEXUAL EXPRESSION

   1. The Pornographic, "Procreative" Vision of Sex in Bowers v. Hardwick

      Defense of sex's value apart from procreation has fallen largely on gay Americans--and others heretofore considered "sex criminals." Once the Supreme Court recognized a right to private contraceptive use for married individuals (22) and extended that liberty to unmarried individuals, (23) the general need to defend penile-vaginal sex for its expressive qualities dissipated. Many states responded to these decisions by repealing laws criminalizing consensual sex to avoid further conflicts with this right to privacy, (24) even though the Court had framed the right as the right to decide whether "to beget a child," rather than a right to sex--the avoidance of which could clearly prevent procreation as well as contraception could. (25) Half the states, though, either retained gender-neutral laws criminalizing oral and anal sex or passed gender-specific laws, primarily for the purpose of ensuring the illegality of sex when it was "homosexual," often resulting in spectacularly absurd attacks on lesbians and gay men. (26)

      In the midst of the Court's decisions protecting controlled procreation, the Court's respect for sexual expression took a curious, pornographic turn when it not only protected private possession of explicit sex on film under the First Amendment, but also threw the weight of the United States' "whole constitutional heritage" behind the decision to do so. (27) That case--Stanley v. Georgia--reversed a criminal conviction for possession of "obscene" films. (28) Rejecting both morality and speculative claims of harm to the public as reasons to ban possession of sexual films, (29) the Court eloquently described Stanley's "right" as protecting the "spiritual nature" of his "feelings" and "his intellect," both as "conditions favorable to the pursuit of happiness." (30) The Court concluded that governmental intrusion "into the contents of his library" (of porn) (31) endangered not only his thoughts but his "emotions and sensations" and, thus, his right to "satisfy his intellectual and emotional needs" (for porn). (32)

      Stanley's protection, of course, was limited, in no way changing the Court's persistently discriminatory hostility to public sexual expression. The Court, for example, has generally considered a governmental claim that expressive conduct is "offensive" talismanic of a reaction to an idea--as in Texas v. Johnson, where the Court invalidated a prohibition on burning the flag because the effort to preserve the flag as "a symbol" of patriotism amounted to little more than an effort to monopolize its use for a particular point of view, shielding the public from unpopular, contrary ideas. (33) In contrast, the Court's obscenity and indecency classifications have continued to ratify public anxiety about lustful, pleasurable sex, (34) thus protecting sex as expression only with some other cultural or social "value" added to it. (35) In fact, at least five members of the Rehnquist Court adhered in different contexts to the view that sexual expression has lesser value simply because it is unpopular. (36)

      Before Lawrence, the official effect of these decisions was to protect pornography and procreation, while refusing to address sex's value, even though sex is what connected these two presumably different outlets for desire. (37) The Court, in Bowers v. Hardwick, affirmed its pornographic-procreative dyad when it held that an alleged tradition of disrespect for same-sex intimacy barred a right to engage in it, (38) and that any liberty to engage in such sex could be overcome by the public assertion of an attempt--however fruitless--in advancing societal morality. (39) The Hardwick Court brushed aside all analogies of sexual liberty to the right protected in Stanley, holding that Stanley's emphasis on books and films was "firmly grounded" in traditional First Amendment cases, while consensual (homo)sex--like the "possession ... of drugs, firearms, or stolen goods," and "adultery, incest, and other sexual crimes"--was not. (40)

      This pornographic-procreative vision of sex that Lawrence inherited is what makes the architecture of its response to Hardwick sweeping and dramatic. Hardwick's crude and primitive conceptualization of sex constitutionalized archaic concepts about sexual expression and the roles of men and women in sex, degrading a line of the Court's most important judicial opinions on sex and weaving them into an aggressive statement on the superiority of "traditional" sex in the process. Given the work required to dismantle Hardwick, it is not surprising that the Lawrence majority would focus its efforts on reconnecting its core decisions on sex into a coherent doctrine to protect liberty and intimacy. (41) But the question Lawrence unanswered as a result is...