What do banning sex toys, being fired for an off-hours affair, or losing custody of a child because of sexual orientation have in common?
They’re all the result of legal rulings, thanks in part to narrow interpretations of a 2003 U.S. Supreme Court ruling that eliminated criminal prohibitions against sodomy according to Laura Rosenbury, JD, professor of law, at Washington University in St. Louis.
In the landmark case Lawrence v. Texas, the high court ruled 6-3 that Texas’ criminal ban on sodomy between consenting adults was unconstitutional. The decision, which overturned similar laws in other states, was expected to broaden, not restrict, sexual rights.
The petitioners in Lawrence, two men who had been arrested for engaging in sodomy in a private home, were not in a committed, romantic relationship with each other. (It was a jealous partner who called police.) But since the ruling was handed down, scores of lower court cases have held that the case applies only to sexual activity involving emotional intimacy.
These subsequent rulings stem from Supreme Court Justice Anthony Kennedy’s wording of the decision, according to Rosenbury, who co-authored “Sex In and Out of Intimacy,” published in July in the Emory Law Journal.
“Justice Kennedy actually overlooked the actual facts of the case and instead reasoned that consensual sexual activity should be constitutionally protected because it’s an important part of relationships,” Rosenbury says. “And the lower courts have used that language, not the facts of the case, to protect sex only when it’s in this relationship context.”
LONG HISTORY OF CORRALLING SEX, RELATIONSHIPS
States have long protected sexual activity only when it serves the states’ own interests, typically marriage and procreation. While Lawrence has reined in that effort in some cases, the ruling has reinforced the link between sex and relationships in others by suggesting the protection of sexual activity should occur only in long-lasting, intimate associations.
“States used to be much more coercive, punishing sex outside of marriage, and have gradually become less coercive but they still maintain this idea that sex is only valuable in relationships,” Rosenbury says. “We’re trying to highlight how such practices remain to this day, and to provide arguments for really letting go of the channeling of sex into marriage or other relationships that have the potential of long-term intimacy.”
States’ constant linking of sex and intimacy diminishes not only sex outside of relationships but also intimate relationships that are not sexual. Rosenbury’s article asks: Why shouldn’t states allow people to divide the rights and obligations currently attached to marriage among a variety of others: spouses, friends, siblings and sexual partners.
The sex-intimacy connection also reinforces gender stereotypes, assuming that that men achieve intimacy primarily through sex and that women desire intimacy over sex, according to Rosenbury.
“There have long been sexual double standards, and protecting sex only when it is in the service of intimacy does nothing to change those standards,” Rosenbury says. “Although Lawrence acknowledged that emotional intimacy need not involve women, it did nothing to disrupt the idea that sexual pleasure is a male domain.”
Rosenbury, whose research and teaching focuses on sex, family, work and other everyday issues, is committed to examining ways that the law influences seemingly private relationships and conduct. “Sex In and Out of Intimacy” is her most recent examination of that phenomenon.