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How Sex Became a Civil Liberty?
by leigh ann wheeler?
oxford, 352 pages, $34.95

The 2013 Oscar ceremony, says Ross Douthat, revealed “the movie business’s essential schizophrenia, which is also the schizophrenia of post-1960s cultural liberalism writ large.” On display were “the official commitment to high-minded principles of equality and human dignity,” represented by a cameo appearance by Michelle Obama, the “tsarina of contemporary liberalism,” as well as vulgar, profane, and jejune riffs exemplifying “the ‘whatever sells’ libertinism that tends to undercut those ideals at every turn.”

The extravaganza, “honest about the culture that it celebrates,” thus combined a “theoretical embrace of feminism and multiculturalism and the practical realities of pornography and sadism.” Says Douthat, “That’s our liberalism.”

Our liberalism’s simultaneous embrace of high and low is on display at every turn in Leigh Ann Wheeler’s How Sex Became a Civil Liberty .This fascinating and important book, by a professor of women, gender, and sexuality at Binghamton University, begins by acknowledging that sex and procreation used to be viewed as matters for civil society, carefully regulated through custom, practice, and informal mores that were both widely accepted and legally reinforced but outside the ambit of constitutional authority.

No longer. These vital aspects of human behavior have now acquired the status of powerful and ­autonomous rights, treated as “civil ­liberties” and strongly protected not only against the state but also against ­private encroachments. How did this happen? Or, to paraphrase Supreme Court justice Antonin Scalia’s query during oral argument in one of this past term’s same-sex marriage cases, “When exactly did sex become a right?”

A linchpin in the tale Wheeler tells is the American Civil Liberties Union. When the city of St. Louis tried to prevent birth-control crusader Margaret Sanger from speaking publicly in 1915, her cause came to the attention of Roger Baldwin, a recent Harvard graduate, prominent St. Louis civic leader, and longtime fan of sexual liberation and free love. Five years later he founded the ACLU. Composed of a fervent, high-minded band of libertarians and bohemians, the new organization initially sought to protect free speech and political dissent by defending communists, draft dodgers, antiwar activists, pacifists, and union organizers. But this relatively circumscribed brief soon morphed into a far broader project.

At first, Baldwin’s enthusiasm for birth control rights was a tough sell with the civil liberties crowd. Contraception was a “controversial practice that occupied a dubious legal status.” The proposed segue from speech to action”from protections for information and advocacy to estab­lishing a constitutional right to buy, sell, and use”faced myriad legal obstacles as well as the skepticism of the mostly male civil liberties community. The tactics of factions hostile to ­contraception helped overcome the ACLU’s reluctance.

Birth control opponents launched a multipronged effort to suppress advocacy for family planning, which included limits on public discussion and bans on the publication and mailing of information. Not only did the relentless campaign against Sanger and her followers outrage libertarians, it seemed to threaten First Amendment rights, which were squarely within the ACLU’s bailiwick.

There were other reasons why birth control activism and a broader push for reproductive rights caught on with the ACLU. The founders came from a cohort of libertines and intellectuals with distinctly atypical views about sex. They viewed sexual exploration as the route to happiness and self-actualization, and their private lives “became laboratories for experimenting with sexual civil liberties.” By removing the constant fear of pregnancy that haunted every sexual encounter, effective contraception made sexual adventurism more attractive and less fraught. The “right” to use birth control fit naturally with these priorities.

Most influential in shaping the ACLU’s strategy on reproductive rights was ­Melvin Wulf, a lawyer and man about town. He stressed consumers’ rights to “read­”see”hear” scientific information about contraception and sexuality, made use of the new social science of sexology to argue that ­sexual irregularities were common and thus “normal,” and repeatedly raised the regulatory specter of official intrusions into married life. Appellants, he wrote, simply want “policemen as well as legislators to stay out of their bedrooms.”

Although this type of surveillance was not technically unconstitutional as long as contraception was restricted or illegal, it was rare in practice. Yet the Fourth Amendment analogy enabled Wulf to create lurid images of the state peering into intimate spaces and meddling with couples’ sex lives. The idea of official investigations of these matters incensed freedom-loving citizens, and their dollars followed their outrage. The ACLU raised unprecedented sums and rapidly expanded its ­membership.

Eventually, the ACLU would help ease restrictions on hard-core pornography, abolish legal disabilities based on illegitimacy and marital status, repeal laws that permitted marital rape, legalize sodomy, liberalize bans on abortion, and legalize and destigmatize homosexual conduct. Progress was slow but steady.

The most critical development was the Supreme Court’s recognition in the 1960s and 1970s of a constitutional “right to privacy.” A spectrum of positions on sex as a “right” still exists, but it is distinctly lopsided; few respectable lawyers or scholars would question the constitutional right to privacy today. Nonetheless, the ACLU was not free from internal conflicts and controversy. Fault lines plagued its campaigns on several fronts, with equality and identity agendas clashing with civil liberties priorities.

When feminists clamored for rape shield laws to protect female victims, for example, pro-defense elements cited the centrality of a presumption of innocence for defendants and the importance of their freedom to adduce all evidence potentially relevant to the woman’s consent, including her past sexual conduct. The ACLU’s staunch commitment to criminal defendants made it a lukewarm proponent of these reforms.

On other issues, like the right to engage in sexually explicit public speech or action, there was ongoing internal debate. Some defended the public’s right to be left alone, likening such speech to an assault on a captive audience, but this concern never acquired as much support as the right to untrammeled sexual expression in the media and the arts.

Civil libertarians also wrestled with the dilemmas posed by the public“­private divide deeply embedded in our constitutional structure. The First Amendment protects against government-imposed censorship, not private discrimination based on speech or opinions.

Nonetheless, following John Stuart Mill’s influential On Liberty , which argues that public and private enforcement of orthodoxy are equally pernicious, the ACLU sought to blur the boundaries. It not only campaigned against legal restrictions on thought, action, sexual status, and sexual preference, but also fought citizen boycotts of sexually explicit material and supported against-private-incursions legislation to protect its publication and sale.

The ACLU’s project was to transform norms designed to balance personal freedom against social harms into absolute prerogatives that recognized few limits and ignored social harms. That was the express goal of “rights talk.”

Through the organization’s offices, the best and the brightest assiduously served bottom-feeders. High-minded idealists routinely defended pornographers, refined and well-educated lawyers supported profit-minded smut purveyors, and cultivated crusaders made common cause with vulgar exhibitionists, hate-mongers, and the dregs of society. Thus did vaunting ideals inevitably fuel the coarsening of public discourse, the debasement of the arts, the decline in reticence, and the collapse of boundaries between what had previously been held private and what is exposed for all to see.

To be sure, the ACLU, strictly speaking, targeted only external restrictions, whether formal or informal. It stressed autonomy and personal choice, not the absence of self-imposed limits and personal restraint. But even if, like Freud, some ACLU supporters took relatively little advantage of the freedoms they advocated, the sexual irregularities and adventurism of the ACLU leadership, and the behavior of the avant-garde libertines they championed, were viewed as almost entirely benign.

Drawn from a cognitive and social elite, most could deftly handle new freedoms, and even thrive on them. Yet these enthusiasts remained oblivious to the downside: that some people cope with freedom better than others, that what is good for a few might be disastrous for the many, and that moral deregulation might harm the weakest most.

The legal protections the ACLU sought have delivered undeniable benefits, but by elevating individual autonomy and choice over social regulation, the ACLU has undermined long-standing norms and deformed our cultural life, debased our speech, weakened vital and sacred institutions, and radically disoriented the most vulnerable among us. The freedoms intended to better people’s lives have sometimes widened the disparities “liberation” was meant to remove. Unfortunately, the author does not discuss these realities. That is a notable weak spot in an otherwise fascinating and thoughtful book.

Amy L. Wax is Robert Mundheim Professor of Law at the University of Pennsylvania Law School .

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