President Trump’s nomination of Judge Brett Kavanaugh to replace Justice Anthony Kennedy on the Supreme Court does not bode well for the future of sexual life in America. It has been widely reported that Kavanaugh, as a federal judge, sought to prevent a 17-year-old unauthorized immigrant from receiving an abortion, but was overruled by other jurists on the D.C. Court of Appeals.
Much of the current debate about Kavanaugh – and the previous appointee, Neil Gorsuch – focuses on the Court’s likely reversal (if not significant weakening) of the landmark 1973 decision, Roe v. Wade. The decision granted each woman the right to personal privacy, to decide the outcome of her pregnancy.
Over the last-half century, many of the Court’s most consequential decisions have involved the sex life of Americans. Abortion is but one. Gay rights and marriage, youth sex education and contraceptive use, and rights of transgender people are three others. Still others involve prostitution and sex trafficking, public media obscenity and zoning restrictions of commercial sex businesses (e.g., sex-toy outlets, “gentlemen’s” clubs). And then there’s the Internet, facilitating any and every conceivable sexual indulgence. Cumulatively, these decisions have helped profoundly transform the nation’s sexual culture.
Personal privacy is at the heart of the debate over Roe as well as many of the other sex-related Court decisions over the last-half century. Before Roe, each state had the authority to determine the limits of a woman’s privacy, especially in terms of her pregnancy … and, possibly, an abortion.
With Roe, the Court shifted the right of privacy from the individual state to the individual pregnant woman and extended the woman’s rights to the nation as a whole. It dramatically revealed how, up to then, American women — as “citizens” – had no personal right to sexual privacy. Roe grants each woman the right, the power, to decide the outcome of her pregnancy.
Moralist believe that a fetus, the unborn and as tiny as six weeks of gestation, should have ultimate power to determine the fate of the pregnancy and that of the birth mother. In many states, people can buy an automatic weapon but not a dildo. The boundaries of personal privacy will likely be a key concern of the “new” Court.
Fear of sex
In 1873, the U.S. Congress enacted the most draconian laws involving sexuality in the nation’s history, popularly known as the “Comstock laws.” Formally entitled “Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use,” they were named after Anthony Comstock. He was the nation’s leading moralist who spoke for a new generation of American Puritans. They fought against prostitution, obscene literature, birth control, race mixing, homosexuality and alcohol consumption. The Comstock laws led to the enactment of, in 1910, the Mann Act barring interstate sexual commerce (i.e., “white slavery”); in May, Pres. Trump pardon the boxing champion Jack Johnson who was convicted – and eventually imprisoned – for driving across a state line with his white wife. In 1919, the religious right’s efforts led to the adoption of the 18thAmendment establishing Prohibition and, in 1920, the adoption of 19thAmendment granting women the right to vote.
Often forgotten, in 1927, the Supreme Court decided that state-sanctioned sterilization was legal. Justice Oliver Wendell Holmes, the legendary voice of moral American, argued: “It is better for all the world, if instead of waiting to execute degenerate offspring for crime or to let them starve for their Imbecility, society can prevent those who are manifestly unfit from continuing their kind… Three generations of imbeciles are enough.” The decision led to the sterilization of some 60,000 citizens throughout the country. Obviously, the definitions of “imbecile” and “feeble-minded” were essentially arbitrary, morally and politically motivated, thus legally meaningless.
In 1930, Margaret Sanger provoked one of the 20th century’s major legal confrontations over a woman’s right to birth control materials, this time as a free speech issue. She “illegally” imported Japanese condoms in violation of the Comstock laws. In 1936, the Supreme Court, in U.S. v One Package of Japanese Pessaries, struck down the prohibition because the material, as information and devices, served medical purposes, protecting the patient’s life. It was the first decision limiting the Comstock laws.
During the following two decades, and especially among WW-II servicemen stationed away-from-home or overseas, condoms became the principal means to prevent catching a sexually transmitted disease (STD). Griswold v. Connecticut (1965) overturned an old, Connecticut statute outlawing the use and distribution of contraceptives; the decisions granted physicians the right to provide counsel and contraceptives to a married couple. The Court ruled that the state could not limit the “zones of privacy,” including the “‘privacy in one’s associations,’” the privacy of the home and a general privacy that protected the institution of marriage.
In 1972, in Eisenstadt v . Baird , the Court extended Griswold, establishing the right of unmarried people to acquire and use contraceptives.
In 1973, abortion was legalized when the then all-male Supreme Court voted 7-2, in Roe v Wade, to overturn a Texas law making it a crime to assist a woman to have an abortion. The Count found the law violated a woman’s due process rights. Richard Nixon was the president at the time of the Roedecision and supported abortion, but in limited cases: “There are times when an abortion is necessary. I know that. When you have a black and a white or a rape.”
In the 1992 case, Planned Parenthood v. Casey, the Court reaffirmed the legal framework laid out in Roe.
In June 1967, the Court overturned, in Loving v. Virginia , a state statute barring interracial marriage was a violation of the 14th Amendment. The decision was but one in a line of Supreme Court and district court decisions reconfiguring the cultural and moral landscape. The Court’s ruling enunciated in Loving were extended to gay marriage in Lawrence v. Texas.
Homosexuality & gay marriage
In 1996, the Court, in Romer v. Evans, struck down a Colorado state constitutional amendment that prevented cities and towns from adopting their own bans on discrimination against gays, lesbians or bisexuals. The Court found the state amendment violated the 14th Amendment’s Equal Protection Clause.
In 1986, the Court upheld a Georgia law, in Bowers v. Hardwick, that made sodomy a criminal offense. However, nearly two decades later, in Lawrence v. Texas (2003), a 6-3 majority-decision reversed Bowers,invalidating a Texas’s ban on oral and anal sex between two men or two women. Justice Kennedy wrote the decision that overrode Bowers.
However, in the recent Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018) decision, the Court found in favor of a baker who had refused to make a cake for a gay couple’s wedding.
Obscenity & free speech
In the post WW-II era, Court decisions transformed the media landscape. The landmark 1948 Paramount decree formally broke up the Hollywood studios’ monopoly on movie distribution. In 1952, the screening of Roberto Rossellini’s film, The Miracle, was a major controversy; in Burstyn v. Wilson, the Court overturned the 1915 Mutual Film Corporation ruling and formally granted movies First Amendment protection. According to the legal scholar, Richard Randall, “The Miracle decision did not outlaw government censor boards per se, but it did provide a constitutional basis for challenging their rulings.”
In Roth v . U.S. (1957), the Court found that “sex and obscenity are not synonymous ….” It found that obscene works were not entitled to constitutional protection . The decision established the principles of (i) community standards and (ii) considering the work as a whole. It went further, noting that, “Se x , a great and mysterious motive force in human life , has indisputably been a subject of absorbing interest to mankind through the ages; it is one of the vital problems of human interest and public concern . ”
Also, in 1957, the Court, in Adams Theatre v. Keenan, ruled to uphold a 1953 New Jersey decision that applied a higher obscenity standard to live public performances then to books, magazines, photos and films. The Newark, NJ, ordinance targeted a burlesque house and prohibited “the performance of any dance, episode, or musical entertainment, the purpose of which is to direct the attention of the spectator to the breasts, buttocks, or genital organs of the performer.”
In 1962, the Court ruled, in Manual v. Day, that the Post Office could not refuse mail services for male physique magazines. In his ruling, 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.
In Jacobellis v. Ohio (1964), the Court found Louis Malle’s provocative French film, Les Amants (The Lovers), shown at a Cleveland Heights, OH, movie theatre, not obscene. Justice Potter Stewart, trying to distinguish between “soft” and “hard” core pornography, famously exclaimed, “I know it when I see it.”
In 1972, the Court ruled, in Byrne v. Karalexis, that Vilgot Sjöman’s Swedish film, I Am Curious (Yellow), distributed by Grove Press, was obscene because it depicted male frontal nudity and could be prohibited from being publicly screened.
In Miller v . California (1973), the meaning of obscenity was further refined.
One traditional evaluation criterion — whether a work was “utterly without redeeming social importance” — was revised. The Court now set three determining factors for obscenity: (i) whether the average person , applying contemporary community standards, would find that the work — taken as a whole – appealed to the prurient interest; (ii) whether the work depicts or describes sexual practice in a patently offensive manner; and (iii) whether the work has serious literary , artistic , political or scientific value.
In 1978, the Court, in FCC v. Pacifica , found seven words – “ shit,” “piss,” “fuck,” “cunt,” “cocksucker,” “motherfucker,” and “tits” — as obscene, unsuitable for broadcast on the public radio and television airways. New York’s Pacifica station, WBAI, rebroadcast a live performance by comedian George Carlin using the words during the day time – i.e., when children could be listening – and thus did not have First Amendment protection.
The Supreme Court has long adhered to a belief that there is a Constitution difference between art, “soft core,” which titillates, and obscenity, “hard core,” which excites. This difference between art and obscenity was ineloquently drawn by Justice Potter Stewart’s legendary obfuscation, “I know it when I see it.” Nevertheless, it is a difference with significant consequence.
First Amendment protections do not apply to obscene or pornographic works. In 1982, the Supreme Court ruled, in New York v. Ferber , that child pornography was an exception to First Amendment free-speech protection. It insisted, “a child has been physically or psychologically harmed in the production of the work.” In this way, it was similar to a handful of other forms of expression, including libel, profanity and sedition also excluded from First Amendment protection.
The last major battle fought over obscenity took place a decade ago. On February 1, 2004, Janet Jackson and Justin Timberlake took the stage at the Super Bowl XXXVIII halftime show at Houston’s Reliant Stadium and — for about 9/16thof a second — a CBS TV audienceof nearly 150 million viewerswas exposed to a “costume malfunction” revealing Jackson’s bare breast and nipple shield.
The Federal Communications Commission (FCC) received 540,000 complaints about the incident, many call-ins orchestrated by conservative morality groups. FCC Chairman Michael Powell called Jackson’s exposure, “a classless, crass, and deplorable stunt,” and promised a tough response. In March 2004, the FCC imposed a $550,000 fine against CBS for its display of a “ fleeting instance” of indecency in line with its 1972 “seven dirty words” standard. CBS appealed the decision and, in June 2012 and, following an earlier ruling by the U.S. Third Circuit Court of Appeals in Philadelphia a gainst the FCC, the Supreme Court refused to reinstate the fine.
It appears that the Court has never directly ruled on the constitutionality of “consensual” commercial sex, prostitution.
Most recently, the Erotic Service Provider Legal, Education & Research Project (“ESPLERP”), an organization of San Francisco sex workers, lost a case challenging the constitutionality of California Penal Code section 647(b) that criminalizes the commercial exchange of sexual activity. The Court of Appeals for the Ninth Circuit refused to hear its appeal; ESPLERP is considering appealing to the Supreme Court.
In 2013, the Court overturned a law requiring any organization accepting U.S. funds to combat HIV/AIDS and related diseases overseas must explicitly denounce prostitution as a condition of receiving funding. Chief Justice John Roberts stated that while government can restrict the ways that funds are spent, it cannot require organizations to “pledge allegiance to the government’s policy of eradicating prostitution.” Such a pledge would violate their First Amendment rights.
The current case against Backstage.com over alleged solicitation of sex-trafficked children, if it gets to the Court, could fix a moral line on what is socially acceptable, one mediated by the vast web media culture.
In 1988, the Court reversed a lower court decision and found that the 1981 Adolescent Family Life Act (AFLA) was not unconstitutional. In 1993, an out-of-court settlement stipulated that AFLA programs could not include religious references, use churches as venues or be presented at parochial schools during school hours. Will the new Court strengthen abstinence-only sex ed programs? Will “underage” youths be able to acquire contraceptive products? Similarly, will the Court support efforts by states to prohibit or restrict the teaching of global warming?
In a 1952 Court decision, Wieman v . Updergraff , Justice Felix Frankfurter wrote that teachers were “the priests of our democracy” because their task is “to foster those habits of open-mindedness and critical inquiry which alone make for responsible citizens.” In a secular world, the classroom is one of the most scared venues of free expression. Few other social institutions encourage careful reading, rigorous discourse and having a defensible point-of-view. Unstated but implicit, the classroom is one of the few social institutions that encourages the explicit challenge to established authority, the student’s “right” to question the teacher.
States and localities claim the authority to regulate “obscene” businesses because they have “secondary effects” on the community. Such venues include theatres showing “adult” movies, adult bookstores and sex-toy shops, strip clubs featuring nude dancing and/or selling alcohol. Governments claim that such businesses increase crime, decrease property values and have a negative impact on a neighborhood. Strict zoning ordinances of a “ sexually oriented business” ( SOB) have been used to either block such a business from opening or set limits (e.g., 500 or 1,000 feet) to where such a business can be located vis-a-vis a residential dwelling, church, park or school.
In 1976, the Court ruled, in Young v. American Mini Theatres , that a city could set zoning ordinance to regulated porn theatres and other sex-related businesses. In New York, then-mayor Rudi Giuliani pushed sweeping regulations restricting sex-oriented video stores, X-rated theaters and topless bars in Times Square. The old midtown Honky Tonk has been turned into a metro Disneyland.
In Renton v. Playtimes Theatre (1986), the Court permitted cities to use zoning ordinances to restrict porn exhibition to 1,000 feet from a residential zone, single- or multiple-family dwelling, church, park or school.
In 2007, the Court chose to sidestep the issue of adult “vice,” refusing to hear a case brought by Sherri Williams, owner of Pleasures, a Decatur, AL, adult sex-toy shop. Her case dated from a violation of a 1998 Alabama anti-obscenity law that bans the sale of sex toys in the state. The Court’s refusal to hear her case signaled its intent to allow individual states to set their own “moral” standards. As Williams noted, “Alabama is the only state in the nation that still refuses to get with the times and overturn their silly ban on the sale of toys.
In March 2018, the Court refused to review of a lawsuit over a Sandy Springs, GA, ban on “gentlemen’s” clubs. The case began in 2006, when three “adult entertainment businesses” and an adult bookstore selling sex toys challenged newly implemented city codes banning the sale of alcohol in strip clubs, also placing zoning restrictions on where such businesses could operate. The businesses sued, claiming the city violated the First and Fourteenth Amendments; the city eventually revised its ordinance with regard to the bookstore.
In the first-quarter of the 21st century, many Americans assume a personal “right” to sexual privacy. Consensual, adult sexual fulfillment (however defined) is an expected – and accepted — aspect of a person’s life. Sex has been integrated into the mainstream of the marketplace, estimated to be a $70-billion enterprise. The Trump administration can be expected to undertake efforts to contain, if not suppress, popular sexual culture. Whether it succeeds will be determined to what extent the “new” Supreme Court — and Americans at large — accepts the personal right to sexual privacy, whether involving pleasure or an abortion.