The article “Sex In and Out of Intimacy” is written by Washington University Law School in St. Louis Professor Laura A. Rosenbury and Loyola Law School Professor Jennifer E. Rothman. Despite being written by apparent teachers of the law, it is one of the most mindless and ridiculous articles one can read. I shudder when I think drivel such as that which appears in their article enters into a classroom and influences the minds of future lawyers. The article is Justice Antonin Scalia’s slippery slope unabashedly on full display. In Lawrence v. Texas (2003) , which overturned a Texas sodomy law declaring it unconstitutional, Justice Scalia warned that "State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light...[judicial] validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision." For those that ridicule Scalia for this rather cogent point, all that needs to be done is read actual articles like "Sex In and Out of Intimacy" by actual law professors since the Lawrence decision. Even though the authors distinguish their own ideas from that of the Supreme Court majority opinion authored by Justice Anthony Kennedy in that case, it is the actual logical extension of Lawrence in its promotion in part of protecting all sexual autonomy and activity between consenting adults. Lawrence was not limited to protecting sodomy between those that could demonstrate they were in committed relationships, even if phrases about intimacy appeared in the majority opinion. As Justice Scalia wrote in dissent, Lawrence “effectively decrees the end of all morals legislation…as the Court asserts…the promotion of majoritarian sexual morality is not even a legitimate state interest.” This article, therefore, is not to be taken as all that far from Lawrence after all even if the law professors would like to believe it is. Though it is pretty clear that even Anthony Kennedy would cringe at the absolute radical sexual revolution (or perhaps rebellion) in law and society being called for by this article, and the argument for a constitutional and legal framework of protection and promotion that should surround it as put forth by these law professors.
That these authors think whatever they have formulated in an article about sex should actually be constitutionalized is astounding. It’s one thing to argue in an article for a shift in the legal landscape by lobbying one’s legislators or the public at large to change all sexual mores, but to think this is a credible constitututional theory is absolutely ridiculous. Yet that is precisely what is put forward in the article. If Lawrence contributed even slightly to authors like these seriously thinking that the courts should or can mandate a complete sexual upheaval and impose any new vision on society regarding sex, then that is a sad commentary on Lawrence. The Constitution does not demand all of law conform to this extreme libertarian/liberal view of sexuality. It makes a mockery of the Constitution to think what they espouse about all “consensual adult sexual activity without regard to intimacy” actually justifies “constitutional protection.”
But even as pure policy, the arguments in this article are nonsensical. Putting aside asinine lines like “solo sex may ultimately promote involvement in society,” the very idea that all of law and society must place the same value on sex of every kind as is placed on that which takes place within the framework of an intimate stable couple is mind-boggling. There are more ideal ways than others to channel one’s sexual urges. The article at its core was really about the complete decoupling of morality and sexuality, not about the decoupling of sexuality and intimacy. In this warped vision a stable married couple faithfully dedicated to one another and perhaps raising a family is no more ideal and noble than someone having sex with a different person every night. These policies if taken seriously would be disastrous as it would literally eliminate whatever limited unified ideals or mores surrounding sex and relationships are left in our culture.
Advocating “changing our understanding of sex as an exceptional activity producing unique harms and benefits” is idiotic. Unfortunately, given the fact that much of the legal academia is on the left, it should not be terribly surprising that two law professors would actually write this in an article for all to read. Do they think having sex is no different than playing a game of Monopoly? Last I checked, there were no Monopoly Transmitted Diseases. If they really believed this they would be unable to see the difference between forcing a child to eat his broccoli and forcing a child to perform a sex act. They would be unable to recognize that some sexual behaviors can be signs of psychological trauma or disorder (e.g., gender identity disorder or paraphilias [http://en.wikipedia.org/wiki/Paraphilia]), and not always opportunities for enhancing “self-awareness.” Further, not only is sex an exceptional activity, it is obviously so. It is the only activity that throughout human history results in the “benefit” of offspring. By not even noticing that simple fact, these authors would have the sexual ideal of humanity be reduced to the level of a bunch of animals. Not noticing that procreation is directly related to sex is also one important reason why these authors advocating “shifting the landscape” misses the boat completely. It renders the article a string of irrelevancies.
These authors talk about “envisioning” a world where ongoing sexual interactions are not tied to committed domestic relationships, and look at that vision as some sort of wonderful goal. No “envisioning” is needed. Sex not tied to committed domestic relationships already takes place in huge numbers. And the implications are not some rosy sexually liberated wonderland. Teen pregnancy, single motherhood and absent fathers, the increase of the spread of sexually transmitted diseases at all ages, and more, are the sort of rancid fruit of these ideas.
Even the implications of the authors are awful, even putting aside the fact that they are actually claiming the Constitution should be interpreted to achieve their radical agenda. Laws against prostitution are gone? Laws against incest are gone? Virtually any legal restriction or societal disapproval relating to sex is gone? In its place, these law professors would like custody or divorce decisions that cannot look to conduct of the spouses such as adultery, “pluralistic sexual education” that doesn’t conform “to traditional notions of gender and heteronormativity,” government facilitation of “exploration” of one’s own sexualities, and more. And of course, to top it off, in the mind of two law professors it is “likely a good thing” if there were some “level of destabilization” of “entrenched family structures.” The implications are so radical, and so varied, that they each should require their own attention. But the truth is that the authors feel no need to take all these issues independently. No argument need be made for any of these individually, only bold irrational assertions that treating all sex in every context equally would be great for “self-understanding” and “interconnectedness.”
Of course I have no problem conceding to these law professors that “sex can constitute a vital part of self-expression.” But what they fail to realize is that like any form of self-expression (be it sex, or even speech, writing, art, etc.), it must be recognized that some forms are better than others, and other forms can be just downright vulgar and disgusting.
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