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Do Americans have a “right” to sexual pleasure, something different, more erotically fulfilling than the sexual intercourse required for procreation? Such a right would be neither formal nor implied, but more an aspirational desire, a sensuous reminder of what could be.
The concept of a personal “right” suggests two, often conflicting, notions. One is formal, a legal right, a specific freedom enumerated in the U.S. Constitution. Such rights include free speech and assembly. A second notion is informal, an implied right that is established by precedent; a practice contested over time that becomes an accepted right. Among such rights are the use of a contractive, interracial marriage, having an abortion, engaging in consensual sodomy and gay marriage as well as bearing arms. Unfortunately, these are rights, like slavery, that can be redefined over time.
Over the last half-century, changes in popular culture and key Supreme Court (and other court) decisions have transformed the meaning of sex in the lives of ordinary Americans. A 2016 report in the Journal of Sexual Medicine notes, “… sexual health was a highly important aspect of quality of life for many participants, including participants in poor health. Moreover, participants in poorer health reported lower sexual satisfaction.”
The Trump administration is moving to turn back the clock on sexual freedom by aggressively relaunching the culture wars. The political and religious right seeks to contain the on-going transformation of America’s sexual culture. Since the post-WW-II consumer revolution, sex has been, simultaneously, emancipated and commodified, the definition of the sexually acceptable expanded as it was increasing integrated into the marketplace.
Commercial sex business is estimate to be a $50 billion enterprise. Trump’s sex-related policies seek to restrict the scope of human sexual experience, of moving the line where personal pleasure and the market economy cross paths. Trump’s campaign to block transgender people from the military is but the latest salvo in the renewed culture wars.
The Constitution was adopted in 1791 and does not directly address the question of sexual pleasure, a most personal — and often private — experience. It does, however, directly consider the issue of personal privacy, alluding to it in four Amendments – the Fourth, Fifth, Ninth and Fourteenth. They be summarized as follows: the Fourth protects against unwarranted searches and seizures; the Fifth protects against self-incrimination; the Ninth identifies that other rights may exist not enumerated; and the Fourteenth has been applied to a wide range of personal privacy matters including procreation, marriage, child rearing and termination of medical treatment.
The issue of sex has divided the nation since its founding, the boundaries of pleasure fought over by each new generation. Over the last four centuries of American legal and social history, four broad issues have framed consideration of sexual pleasure.:
(i) was the sex with another of the opposite gender for reproduction?;
(ii) was the sex with another of the opposite gender for pleasure, not procreation?;
(iii) was the sex with another of the same sex, for pleasure?; and
(iv) was the sex voluntary and consensual, not rape, trafficking or pedophilia?
Each issue can involve one of a variety of forms of sexual pleasure, whether experienced physically (e.g., intercourse, orgasm) or emotionally (e.g., fulfillment, psychotic abuse). Each issue has been addressed, in one form or another, since the nation’s founding. The battle over what was “acceptable” sexual pleasure shaped the nation’s legal and social standards as well as actual physical sexual practices Americans have engaged in over the last four centuries. These issues raise a deeper question about America society: is it a religious or a secular nation?
Challenges to the then-dominant moral order have, for centuries, played-out on numerous battlegrounds. They having involved sex across the race and gender lines; non-marital and non-procreative sex; using birth-control devices and abortion procedures to prevent procreation and to insure the health (physically and psychologically) of the mother and the viability of the fetus; using ever-newer forms of speech to push the boundaries of sexual expression; expanding sexual identity to more than only two genders; regulating prostitution and commercial sex for the good of the sex worker and client, thus cutting-out the middlemen, traffickers; and bringing notions of restorative justice to the treatment of people convicted of sexual crimes, 21st century witches.
Compounding the specific issue of struggle, the emergence of a mass consumer market during the 20th century — first in the post-WW-I era, then in post-WW-II-era – enormously expanded American sexual culture. In the postwar era, the advertising, fashion and entertainment industries — along with the adoption of the birth-control pill and teen sex-education — eroticized American life, especially the life of women (and, increasingly, younger girls). Cumulatively over the last century or so, Americans seem to have come to accept the legitimacy of their right to sexual pleasure.
Sexual pleasure can be experienced individually or with another(s), be it involving one’s same or another sexuality. Each sphere of sexual pleasure needs to be considered on its own terms; together, they fashion sexual culture.
Since the 1960s, key Supreme Court decisions significantly expanded the acceptable spheres of adult sexual practice with another, shifting the legal framework of privacy and pleasure. Among the decisions are: Griswold v. Connecticut (1965), granted married couples the right to purchase and possess contraception materials; Loving v. Virginia (1967), giving interracial couples the right to marry; Eisenstadt v. Baird (1972), extended to unmarried people the right to acquire and use contraceptives; Roe v. Wade (1973), guaranteeing a woman the right to terminate her pregnancy; and Bowers v. Hardwick (1986), that criminalizing consensual same-sex sodomy.
More recently Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) upheld Roe, but permitted states to regulate abortions to ostensibly protect the health of the mother and the life of the embryo/fetus; Lawrence and Garner v. Texas (2003) overturned Bowers, extending constitutional privacy protections to adults who engage in private, consensual sodomy; U.S. v. Windsor (2013) ruled the 1996 Defense of Marriage Act (DOMA) was unconstitutional; Obergefell v Hodges (2015) legalized gay marriage; and Whole Woman’s Health v. Hellerstedt (2016) overturned a Texas law restricting the delivery of abortion services.
In these and other decisions, the nature of sexual pleasure appears never have been defined. Rather sexuality was indirectly approached from two very different perspectives. First, in terms of a heterosexual’s right to acquire and use contraceptives to control procreation by, initially, married couples (Griswold) and, then, by unmarried adults (Eisenstadt). Second, in terms of a homosexual’s right to engage in consensual sodomy (Bowers and Lawrence) and to marry (Obergefell).
The right to the outcome of heterosexual sexual engagement was hinted at in Griswold and more formally articulated in Eisenstadt. As Justice Arthur Goldberg noted in Griswold, “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”
The right to sexual pleasure was directly addressed in the Lawrence decision overturning Bowers. In Bowers, the Court earlier ruled, “Sodomy was a criminal offense at common law and was forbidden by the laws of the original thirteen States when they ratified the Bill of Rights.” It added, “In fact, until 1961… all 50 States outlawed sodomy, and today, 24 States and the District of Columbia continue to provide criminal penalties for sodomy performed in private and between consenting adults.” Sodomy among consent adults was considered a crime.
In the 2003 Lawrence decision, the Court split, with the majority — led by Justice Kennedy, supported by Breyer, Ginsburg, O’Conner, Souter and Stevens — looking forward; those looking backward included Rehnquist, Scalia and Thomas. In Kennedy’s words, “Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.” Sadly, people are still not sexual creatures.
Conservative Americans have long feared what was consider “obscene” forms of sexual expression, be it in word, image or other forms of representation. They represent the single greatest source of auto-erotic pleasure, masturbation, more so in the Internet age. The U.S.’s first obscenity case was in 1821, when a Massachusetts court outlawed Fanny Hill; the publisher, Peter Holmes, was convicted for printing a “lewd and obscene” novel.
In 1873, Congress passaged what were known as “Comstock laws,” the “Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use” promoted by the hyper-moralist, Anthony Comstock, and would remain in place for nearly half-a-century. It criminalized the sending of erotica, contraceptives, abortifacient and sex toys through the postal system. In 1881, with Comstock’s backing, the Boston District Attorney forced the suppression of Walt Whitman’s Leaves of Grass, one of America’s greatest literary works.
In Roth v. U.S. (1957), the Court convicted Samuel Roth and Marvin Miller of distributing obscene material, i.e., speech not protect by the First Amendment. However, in its judgement, it redefined obscenity as material whose “dominant theme taken as a whole appeals to the prurient interest” to the “average person, applying contemporary community standards.” In 1962, the Court ruled in Manual v. Day that the Post Office could not refuse mail services for male physique magazines; Justice John Marshall Harlan distinguished between a “prurient” appeal and an obscene image and wrote that the images in Manual were not “patently offensive” based on community standards.
This sentiment was reiterated in Jacobellis v. Ohio (1964) that found that Louis Malle’s film, The Lovers (Les Amants), was not obscene; Justice Potter Steward famously lamented: “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description [“hard-core pornography”], and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.”
In Miller v. California (1973) the Court made a major shift in the definition of obscenity. It revised the old standing — a work “utterly without socially redeeming value” — to that lacking “serious literary, artistic, political, or scientific value.” However, in the 1978, it ruled that George Carlin’s “seven dirty words” — shit, piss, fuck, cunt, cocksucker, motherfucker and tits — aired over Pacific Radio station WBAI were obscene, thus prohibiting them from being uttered over broadcast radio or television.
Most noteworthy of recent obscenity cases, in 2004, the Court refused to reinstate an FCC fine against CBS-TV broadcast of the Super Bowl XXXVIII halftime show in which a “costume malfunction” exposed Janet Jackson bare breast and nipple shield for about 9/16th of a second to an audience of nearly 150 million viewers.
In a 2004 article in the Yale Journal of Law & Feminism, “A Bedroom of One’s Own: Morality and Sexual Privacy,” Marybeth Herald argues that “the Lawrence decision disengaged sex from reproduction by protecting sexual relationships where procreation was not possible.” She adds, “Lawrence gives power to the value of sexual intimacy alone, unrelated to procreative issues.” It legitimized adult non-reproductive acts like anal intercourse, but also private masturbation, oral sex (i.e., fellatio and cunnilingus), viewing pornography and the use of sex toys (e.g., dildos, vibrators).
Lawrence was decided in 2003, nearly a decade-and-a-half ago. This was the period when sexual pleasure shifted from a private consensual practice to a public commercial business or erotic performances. During this period, the Court has allowing localities great latitude determining what is acceptable. Domains of “public” sex include:
(i) adult sex-toy retail outlets,
(ii) sex-performance venues and
(iii) commercial sex engagements.
Under the Trump administration, each can be expected to face increased repression.
Both sex-toy stores (including adult video outlets) and sex-performance venues (including strip clubs) are considered sexually oriented businesses (SOBs). They are subject to varying state and local licensing requirements and and zoning regulations. In June 2017, New York State’s Court of Appeals ruled in favor of a local New York City regulation that bans adult businesses from most residential and commercial districts. As of 2016, it was illegal to purchase of sex toy in Mississippi, Alabama and Virginia in apparent violation of the Lawrence decision.
Strip or “gentlemen’s” clubs appear to operate in every state and (formally) adhere to what is known as the “6-foot rule” requiring dancers while performing to maintain a 6-foot distance from patrons. Clubs permitting female entertainers to performing fully nude are subject to further requirements, including no-touch rules between customers and dancers as well as restrictions on alcohol sales.
In the early-21st century, many Americans seem to assume a personal “right” to sexual pleasure. Consensual, adult sexual fulfillment (however defined) is an expected aspect of people’s lives. It’s been integrated into the mainstream of the marketplace, estimated to be a multi-billion-dollar enterprise. The Trump administration can be expected to undertake efforts to contain, if not suppress, popular sexual culture. Whether it succeeds or not will be determined to what extent the Supreme Court, and popular society, accepts the personal right to sexual pleasure.