at Reason:
When it comes to Americans’ understanding of sexual privacy and public sexual expression, most of us are effectively members of the American Civil Liberties Union. This is so even for people who carry no card, pay no dues, and—if such a thing were possible—have never even heard of the organization.
That’s the takeaway from How Sex Became a Civil Liberty, Leigh Ann Wheeler’s dense but fascinating account of the ACLU’s wildly successful efforts, since its founding almost 100 years ago, to bring sex under the purview of the Bill of Rights. Wheeler, a Binghamton University historian, could have stuck with a wonky narrative about a long march of law and jurisprudence. Instead, she’s taken what she calls an “empathic” approach. She has combed vast archives, including personal correspondence of the ACLU’s founders and decades of files from the national office and local affiliates.
From these papers she has assembled a story about men and women working through their own sexual passions and contradictions as they shaped a legal and political practice for the entire country. She reveals how activists pushed, slouched, and pushed some more to arm their fellow citizens with sexual rights, even as those rights provoked further conflicts, including among ACLUers themselves.
Wheeler’s story starts in the 1920s, as young, educated men and women flocked to Greenwich Village to partake of a modernist cultural revolution with heady new ideas about the nature and purpose of sex. One of these migrants was Roger Baldwin. As a 12- or 13-year-old in the 1890s, he had been seduced by his family’s Irish servant. He’d spent the next few years having sex with her, learning, as he put it, “everything that was to be known, even how to prevent getting her pregnant.”
In the Village, Baldwin met Madeleine Zabriskie Doty, who had spent her youth wondering if she was physically attracted to women rather than men. By the 1920s, she was in love with Baldwin. The couple wed in the new style, sans ring or vows. And Baldwin founded the ACLU.
December 3rd, 2012 | 2:51 pm
Seems like it’s always been there in the 9th amendment.
December 3rd, 2012 | 7:48 pm
No Ray, there were fornication and adultery laws when the 9th Amendment was written, and they stayed in effect, so clearly being allowed to have sexual intercourse with someone you aren’t married to is not a right. On the contrary, the right to be born to married parents, and the right to marry and procreate with your spouse using your own gametes, was and is a right covered by the 9th Amendment.
The ACLU has not fought any case finding a right to sexual intercourse by unmarried couples, that I am aware of. Lawrence doesn’t apply to sex, despite Virginia’s cynical application of it to an adultery case.
December 4th, 2012 | 10:31 am
John Howard – Were there federal “fornication and adultery laws”? Such matters were the province of the states, back then.
Of course, now we have the 14th Amendment, applying the protection of the Bill of Rights to state law as well.
December 4th, 2012 | 11:32 am
Well, even after the 14th Amendment, SCOTUS continued to accept the legitimacy of state fornication laws in Zablocki, and affirmed that marriage is “about the right to have sexual intercourse” in Lawrence. And, the US military still prosecutes and court martials American citizens for adultery.
The ACLU has made some inroads on abortion rights and homosexuality, but they haven’t asserted a right to have unmarried sex or procreation.
December 4th, 2012 | 12:23 pm
John Howard –
The Supreme Court also handed down Plessy v. Ferguson after the 14th Amendment. Even Catholics, who believe in infallibility, don’t ascribe that to anyone on the Supreme Court.
December 4th, 2012 | 2:48 pm
OK, that’s what I say about Virginia’s inept application of Lawrence to a heterosexual adultery case, and remind people that Virginia was wrong in Loving v Virginia too.
My point remains, the ACLU has not had the success that people seem to think it has regarding sex: there has never been a case that found a right for unmarried sexual intercourse.
December 4th, 2012 | 8:07 pm
Late Moderns confuse “rights” with “common practices.”
December 5th, 2012 | 8:22 am
Not just “Late Moderns”, however you define that.
December 5th, 2012 | 11:21 am
Renaissance Moderns, Early Moderns, Enlightenment Moderns, High Moderns had another definition based on the more rational medieval notions. Although things may have begun changing already in the High Modern Age.
Basically: Late Modern = post-1914, but earlier in the arts, later in the sciences. So we may as well say “20th century” and accept fuzziness at the boundaries.
December 5th, 2012 | 12:59 pm
YOS – I’m afraid I don’t follow. It’s my understanding that slavery predates the 20th century by a substantial margin…
December 5th, 2012 | 1:20 pm
Slavery? Are you on the wrong discussion thread? My comment was on the growing prevalence of rights=common practices.
December 5th, 2012 | 2:07 pm
You may have missed that my comment of 8:22am was a link to another First Things story.
The common practice of slavery led many people to believe they had property rights in other people. The confusion you allude to is not at all peculiar to “Late Moderns”.
December 5th, 2012 | 5:31 pm
Your right. I did not notice that it was a link. But I still contend that the confusion of “right” with “practice” is especially acute here at the end of the modern age. The earlier confusion had to do with what counted as property, not that there was or was not a right to possess property. For evidence, I present the whole laundry list of newly discovered rights that the Late Moderns have come up with.
There is also a related confusion between having a right to something and imposing an obligation on someone else to provide it.
December 6th, 2012 | 10:08 am
Yes, I’ve noticed that confusion between a right to do something and an obligation to have it provided to you when I talk about a right to marriage and procreation. All it means is one can’t be prohibited from them, it obviously doesn’t mean a wife and baby is provided to you. Same with a right to sexual intercourse, it obviously doesn’t mean a sex partner is provided to you. I don’t think anyone is really confused by this, but they just like to throw up a smokescreen and avoid the point that people have a right to marry and procreate with their spouse.
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