SEX

From Moral Issues that Divide Us

James Fieser

home: www.utm.edu/staff/jfieser/160

Copyright 2008

Updated: 11/1/2008

Contents

1. Overview

2. Is Homosexuality Abnormal: Pro and Contra  — John Finnis and The American Psychological Association

3. Pornography: Harmful yet Legal? — Pamela Paul and Rodney A. Smolla

#1. OVERVIEW

Jill, a sophomore in college, was raised in a conservative family and actively attended a Baptist church throughout her life. Her parents instilled within her the conviction that she should wait for marriage before having sex, and she even signed a purity pledge, promising to God to stay pure until marriage. While during high school she dated a boy from her church, she nevertheless stuck to her vows. Shortly after entering college, though, she fell in love with a handsome student named Jason, their relationship got steamy, and she set her purity vow aside. A particularly popular and social guy, Jason brought Jill to drinking parties across campus that would go on late into the night, and the two would frequently crash on a bedroom floor with other guests. On one occasion, a couple in the same room began getting intimate; Jason followed suit with Jill. The lights were off, and both couples were under covers on the opposite sides of the room, and Jill, though a little embarrassed, complied. The situation repeated itself the next night, but this time both couples were in more plain view. The two couples became close friends, and before long they swapped partners, and the guys encouraged the girls to be intimate with each other. They took digital pictures of their activities, blotting out their faces, and posted them on the internet. Jill and Jason drifted apart and she began casually dating on her own, typically sleeping with her new date on the first night. As Jill’s sexual contacts began to grow, she had to be treated for chlamydia and gonorrhea. One day while cleaning out her dresser she found her old purity pledge and laughed. What she became in college was exactly what she was hoping to avoid in high school.

           Jill’s story represents a range of sexual activities that raise moral questions: is it OK to have premarital sex, group sex, homosexual sex, casual sex, and one night stands? Is it OK to view sexually explicit photos, or post some of your own on the internet? The list continues when couples are married: is it OK to have adulterous relationships, swap spouses, or have more than one spouse? The liberal answer to all of these questions is a qualified yes: these activities are morally permissible, so long as they are done between consenting adults and no one is harmed or exploited. The traditional answer is an unqualified no: none of these activities is acceptable, and the only morally proper context for sexual activity is within a committed marriage between one man and one woman. For convenience, throughout this chapter we will use the term “non-traditional sexual practices” to refer to the above list of sexual activities, and “traditional sexual practices” to refer to the marriage-only view.

BACKGROUND

When we consider non-traditional sexual behaviors such as premarital sex, adultery, and homosexuality, we invariably make moral judgments about them, much as we do any other morally controversial issue. What is unique about the issue of sexual morality, though, is that there is an underlying biological drive towards sexual activity. We don’t, by contrast, have a biological inclination to take recreational drugs, abort fetuses, damage the environment, harm animals, or engage in most other morally controversial actions. While understanding the biological factors of human sexuality won’t by itself resolve the moral issues, it does reveal the kind of sexual creatures that we are by nature.

Animal Sexual Behavior

There is no mystery regarding the main biological purpose of sexual activity in humans as well as animals: it is a mechanism for procreation, and the pleasure associated with it is a reward system to encourage procreation and thereby ensure the continuation of one’s genetic line and species. Biologists believe that sexual reproduction emerged within the animal world 300 million years ago, with asexual reproduction being the sole means prior to that. Animal species each have their own mating rituals, and it is impossible to clump all animal sexual behavior into a single category. However, one of the more important sexual issues regarding animals is the extent to which they are by nature monogamous—that is, inclined to have a single mate. For decades, conventional wisdom had it that many species mated for life, particularly birds, but more recent science has overturned that presumption.

           Only about 4% of mammals mate for life—such as otters, bats and beavers—but even in these cases most are not completely faithful to their partners.  DNA tests show that 10% or more of the offspring of monogamous animals are sired by different fathers. Biologists sometimes make a distinction between “social monogamy,” indicating that an animal couple lives together, and “genetic monogamy,” where couples have a consistently single sexual partner. Thus, genetic monogamy in animals is even rarer than social monogamy. Monogamy in general may be a useful survival mechanism when the offspring are especially at risk and may benefit by having two parents. But socially monogamous animals that play the field also have survival advantages: females have an opportunity to pick better genes for their offspring, and philandering males increase the chance of continuing their genetic line by fathering as many children as they can. It is unlikely that animals have these reproduction benefits in mind while either remaining faithful or carousing; rather, it’s more like a blind inner impulse that drives them to their respective sexual behaviors.

           The sexual behavior among primates—our closest genetic relatives—is particularly diverse. About 15% are socially monogamous, such as Gibbons apes and Marmosets monkeys. At the other extreme are Bonobo apes – sometimes called Pygmy Chimpanzees – which are notoriously promiscuous. Sex, for the Bonobo, functions as a mechanism for social bonding, completely apart from its reproductive purpose. It helps establish a wide network of relationships and smoothes over conflicts. Different males copulate successively with the same adult female and, when an infant is born, each male behaves as if it’s the father. Less than one-third of their sexual contacts are between adults of the opposite sex: much of it is bisexual and incestuous. Their sexual techniques are also varied as they display face-to-face genital sex, tongue kissing, oral sex, and genital rubbing.

Human Sexual Behavior

If a zoologist were to classify human sexual behavior strictly on the basis of our actual conduct, how would we compare to other primates and the rest of the animal world? While we are not as promiscuous as Bonobo chimps, we are not as monogamous as Gibbons monkeys. Sociobiologist David Barash describes our biological predisposition towards having multiple sexual partners:

Social conservatives like to point out what they see as threats to "family values." But they don't have the slightest idea how great that real threat is, or where it comes from. Monogamy is definitely under siege, not by government, declining morals, or some vast homosexual conspiracy -- but by our own evolutionary biology. Infants have their infancy. And adults? Adultery. [“Deflating the Myth of Monogamy”]

Our best information about human sexual activity comes from surveys, and while researchers conduct these with great regularity, none are completely accurate. People are prone to lie when asked sensitive questions about their sexual histories, in part from fear that the information will leak, and in part from a sense of embarrassment over their conduct. Here, though, are some statistics.

           As a species, we begin having sex shortly after reaching puberty, with the average in the U.S. being 16 years. 95 percent of Americans have premarital sex, and surveys show that the percentage has been this high since at least the 1950s. Worldwide, people have sex on average 106 times a year; the U.S. is near the top at 138 times, and Honk Kong near the bottom at 57. The average world wide age for marriage is 22, with Mali having the youngest at 16.4 years, and the U.S. is near the top at 26.8 years. We have many sexual partners through our lives, and, in the US the average is around 13. Men report having perhaps twice as many sexual partners as women do, and, technically speaking, this disparity is puzzling since in a closed group of heterosexual men and women, the numbers would have to be identical. Much of the difference can be explained by the fact that prostitutes are typically not surveyed in such studies, whose clients range in number from hundreds to thousands. In addition to having many sexual partners, are choices are often impulsive: almost half of U.S. adults admit to having a one night stand. Also, adultery is commonplace. A famous study by Alfred Kinsey in 1953 indicated that 50 percent of married men and 26 percent of married women had adulterous relationships by age 40. More recent studies give similar percentages and DNA tests show that as many as 10 percent of the children of socially monogamous parents are sired by a different father. 5 to 15 percent of married couples have open marriages where the partners agree that each is free to engage in extramarital relationships. Married or unmarried, use of pornography within all age groups is high, with some studies indicating regular use as high as 50%.

           As with most animals, then, there seems to be a biological predisposition among humans to play the field at least to some extent. Another fundamental sexual issue that’s connected with human biology is homosexual orientation, that is, the predisposition to be romantically and sexually attracted to people of the same gender. As with other matters of sexual behavior, it is difficult to get a precise estimate of the number of homosexual people, and estimates range between 2 and 7 percent of the population. A critical question is whether homosexual orientation is caused by biological mechanisms or mere social conditioning, or both. There appears to be two distinct biological factors related to homosexuality, the first is genetics. Genetic experiments with fruit flies have identified a group of genes that trigger homosexual courtship and mating. The search for similar genes in humans is still ongoing, but patterns of homosexual orientation within family trees, particularly on the mother’s side, suggest that there are genetic switches involved. The second biological factor is not genetic, but rather one involving fetal development where the mother’s physiology feminizes the brains of her male fetuses. The chances of this happening increases with the number of older brothers that one has. With no older brothers, the chances are 3 percent that a male will be gay; with one brother it rises to 4 percent, with two brothers 5 percent, and three or more 6 percent. These percentages hold even when brothers are not raised together. The likely biological explanation for this is that with each new male child, mothers develop an increased immunization to an antigen produced by the male fetuses, and this affects how the subsequent male fetuses develop.

What People Think

Surveys about people’s moral attitudes towards sex are mixed. The majority approves of divorce and premarital sex, are equally divided about homosexuality, and disapprove of polygamy and adultery. (From www.pollingreports.com, 5/8-11/08)

"Next, I'm going to read you a list of issues. Regardless of whether or not you think it should be legal, for each one, please tell me whether you personally believe that in general it is morally acceptable or morally wrong.

"Divorce"

Morally Acceptable: 70

Morally Wrong: 22

"Sex between an unmarried man and woman"

Morally Acceptable: 61

Morally Wrong: 36

"Homosexual relations"

Morally Acceptable: 48

Morally Wrong: 48

"Polygamy, when one husband has more than one wife at the same time"

Morally Acceptable: 8

Morally Wrong: 90

"Married men and women having an affair"

Morally Acceptable: 7

Morally Wrong: 91

PHILOSOPHICAL ISSUES

Philosophers have devoted considerable time to devising arguments either for or against the moral permissibility of specific sexual behaviors. Many moral theories offer general rules of thumb to help determine whether actions are right or wrong, and these are often applied to questions about sexual behavior. One approach is consequentialism, which tells us that an action is morally right if it results in more beneficial consequences than harmful ones. For example, to determine whether non-traditional sexual practices like casual sex are morally wrong, we need to consider all of the negative consequences of that conduct. There’s the possibility of unwanted pregnancy, hurt feelings, jealousy, sexually transmitted diseases, and, if couples are married, there’s the possibility of divorce and child custody battles. The more harmful these factors are relevant to your situation, the more the conduct becomes wrong. Another approach, offered by German philosopher Immanuel Kant, is that actions are wrong when we treat people disrespectfully as mere things. If you cheat on your spouse, you might show disrespect to your spouse by diverting your time and affection to someone else. You might also show disrespect to your lover by giving him or her false hope for a long-term relationship. Neither consequentialism nor Kantianism necessarily side with either traditional or nontraditional sexual practices; rather, they only give us formulas for answering moral questions once we plug in the relevant data. Two moral theories, though, do take sides: natural law theory and personal freedom.

Natural Law

Natural law theory is the most important philosophical defense of traditional sexual practices. Its basic position is that the purpose of sex is reproduction, and non-traditional sexual activity is morally wrong since it is not in accord with that aim. According to Italian philosopher Thomas Aquinas (1225-1274), the theory’s main proponent, God implanted within human nature a set of instincts that define our purpose as human beings and establish what is morally right. We have, for example, a divinely-implanted instinct to be sociable, and this tells us that unsociable actions are wrong, such as murder and theft. We also have an instinct to care for our young, and this tells us that we are to nurture and educate our children. Similarly, we have an instinct to procreate, which tells us that we are to have sexual intercourse for the purpose of having children. For Aquinas, this rules out adultery, fornication, and homosexuality, each of which involves sexual relations that are not for purposes of reproduction. Such sexual misconduct, according to Aquinas, is a serious sin, second only to murder since, while murder destroys life, sexual misconduct thwarts the creation of life.

           Aquinas offers a very specific argument for his procreation-only view of sex, based on the natural purpose of body parts. The various parts of our bodies have precise purposes, he argues, and sex organs have the clear function of facilitating reproduction through sexual intercourse:

The members of the body being the instruments of the soul, the end of every member is the use of it, as in the case of any other instrument. But there are members of the body the use of which is for the intercourse of the sexes: that therefore is their end. [Summa Contra Gentiles 3.126]

To use our sex organs for purposes other than reproduction, then, is a misuse of that part of our body. So too with the natural purpose of semen: it is there for reproduction, and any emission of it without that purpose in mind is a sin against nature:

Hence it is clear that every emission of the semen is contrary to the good of man, which takes place in a way whereby generation is impossible; and if this is done on purpose, it must be a sin. I mean a way in which generation is impossible in itself as is the case in every emission of the semen without the natural union of male and female: wherefore such sins are called 'sins against nature.' [Ibid, 3.122]

Not only must human sexual activity aim at procreation, but, according to Aquinas, it must also be done within the context of a monogamous marriage. Men have a natural desire to be sure that their children really are theirs, which wouldn’t be possible if couples were uncommitted. Also, polygamous marriages are wrong since “one male could not provide for several females as a helper in the rearing of their progeny” (ibid, 3.124).

           A common criticism of Aquinas’s position is that we regularly use parts of our bodies for purposes other than their naturally-intended function. We use our ears to hold up our glasses, which have nothing to do with their purpose of hearing sounds. We use our teeth for chewing gum, which does not facilitate food consumption. We don’t consider any of these activities immoral, so why is it immoral if we use our sex organs for purposes other than procreation? Aquinas considered this objection and has a response:

“[One might ask whether it is a sin if] one were to walk on his hands, or do with his feet something that ought to be done with his hands. The answer is that by such inordinate applications as those mentioned the good of man is not greatly injured: but the inordinate emission of the semen is repugnant to the good of nature, which is the conservation of the species. [Ibid, 3.122]

In the above, Aquinas suggests that the ultimate test for whether an unnatural use of a body part is immoral is whether it is contrary to human wellbeing. Using our ears to hold up glasses is not at odds with human wellbeing, and neither is using our teeth to chew gum. But, unnatural use of our sex organs and semen thwarts the preservation of our species, and thus is contrary to our welfare.

           Another common criticism of Aquinas’s position is that his procreation-only view of sex rules out any number of sexual activities that even committed married couples might practice, such as oral sex, masturbation, sex with contraception use, sex when couples are infertile, and sex after menopause. Aquinas did recognize that infertility and menopause were special situations, and sex in these cases would still be permissible:

But if it is by accident that generation cannot follow from the emission of the semen, the act is not against nature on that account, nor is it sinful; the case of the woman being barren would be a case in point. [3.122]

Sex with infertile couples, then, is permissible since procreation is obstructed by a glitch in the reproductive system that would under normal circumstances result in pregnancy. But this provision still leaves out acts like oral sex, masturbation, and sex with contraception use; on these issues Aquinas does not budge, and neither does the Catholic Church which follows Aquinas’s natural law philosophy. But less rigid natural law theorists offer some flexibility. Rather than restricting sex to reproduction only, they see that it also serves a natural purpose of strengthening a married couple’s relationship. This would allow for a wider menu of sexual activities that would include the above three. But, the problem with this broader natural purpose of sexual activity is that it opens the door to at least some non-traditional sexual practices. Sex can also strengthen the bonds of committed couples who are unmarried, and even committed homosexual couples. Thus, to avoid going down a slippery slope of sexual permissiveness, traditional natural law theorists limit sexual activity to purposes of procreation.

Personal Freedom

In contrast with the natural law position, a rival view of morality emphasizes personal freedom, and is much more supportive of non-traditional sexual activities. The idea of personal freedom arises out of the theory of natural rights, which maintains that all people are born with a set of rights, including the liberty rights to think, speak and act as we so choose. On this view, the major restriction on my conduct is when my actions cause harm to another person. As Supreme Court Justice Oliver Wendell Holmes once said, “The right to swing my fist ends where the other man's nose begins.” Applying this principle of personal freedom to sex, then, all sexual activities are morally permissible as a matter of liberty, as long as one’s conduct does not harm someone else. This would be particularly so with sexual relations between consenting adults within the privacy of their own home, and this freedom would include the full range of non-traditional sexual activities. Our sexual choices, then, are on a moral par with other activities that we do with other willing people, such as to play cards or tennis.

           Until recently, few respectable philosophers wrote in defense of non-traditional sexual practices, and when they did the public backlash was swift and decisive. But one especially disreputable philosopher, Marquis de Sade (1740-1814), wrote extensively on the subject, typically in the form of pornographic novels that he published clandestinely. In one work, titled Philosophy in the Bedroom (1795), he argues that nature grants us the widest possible range of sexual freedom, which justifies premarital sex, adultery, homosexuality, prostitution, incest, and sadomasochism. Men and women are both naturally designed to sleep around with everyone, and it is only unjust social conventions that force us into monogamous marriages:

It is certain that, in the state of nature, women are born vulguivaguous, that is . . . belonging to all males. Without a doubt, such were the first laws of nature and the only institutions of the first communities which men made. Private-interest, selfishness and love degraded these views, which were at first so simple and natural. One believed to grow rich by taking a woman, and with it the good of her family. [Philosophy in the Bedroom (1795)]

This, he believes, entitles anyone, male or female, to have sex-on-demand, and any one sexual partner is as good as another, irrespective of age, gender, and even species: “Nature places no great importance on fluid which runs through our loins, and is not concerned if we prefer to direct it down one path or another.”

           De Sade’s defense of sexual freedom is clearly too extreme, and seems more descriptive of the sexual inclinations of Bonobo chimps than those of humans. However, a more restrained philosophical defense of sexual freedom comes from Alan Goldman in his influential essay “Plain Sex” (1977). According to Goldman, defenders of traditional sexual practices err by viewing sex as principally a mechanism for attaining a further goal, such as reproduction or love. He calls this the means-end view and describes it here:

[Means-ends views of sex] attribute a necessary external goal or purpose to sexual activity, whether it be reproduction, the expression of love, simple communication, or interpersonal awareness. They analyze sexual activity as a means to one of these ends, implying that sexual desire is a desire to reproduce, to love or be loved, or to communicate with others. All definitions of this type suggest false views of the relation of sex to perversion and morality by implying that sex which does not fit one of these models or fulfill one of these functions is in some way deviant or incomplete. [“Plain Sex”]

Aquinas, for example, holds the means-end view by seeing the sole purpose of sex as a means of attaining the end of reproduction, and, consequently, all sexual activities are thereby immoral when they do not facilitate reproduction. Goldman rejects the means-end view of sex on the grounds that pleasures are often ends in themselves, irrespective of biological functions that they perform. “The pleasures of eating and exercising are to a large extent independent of their roles in nourishment or health (as the junk-food industry discovered with a vengeance).” Pleasures from food, exercise and sex all take on lives of their own, apart from their survival functions. Sexual desire, according to Goldman, is not a means to an end, but is simply the “desire for contact with another person's body and for the pleasure which such contact produces.”

           Unlike De Sade who believes there are no moral limits to sexual activity, Goldman argues that there are clear restrictions, specifically, we cannot harm, deceive or manipulate other people while pursuing our sexual interests. However, these restrictions are not unique to sexual activity but apply to all of our interactions with other people. I cannot, for example, force you to play tennis with me against your will, or club you with my tennis racket if you play better than I do. The connection between sex and morality is the same as it is with sports and morality. He makes this point here comparing sexual ethics with business ethics:

We can speak of asexual ethic as we can speak of a business ethic, without implying that business in itself is either moral or immoral or that special rules are required to judge business practices which are not derived from rules that apply elsewhere as well. Sex is not in itself amoral category, although like business it invariably places us into relations with others in which moral rules apply. It gives us opportunity to do what is otherwise recognized as wrong, to harm others, deceive them or manipulate them against their wills.

Thus, sexual activities—traditional or non-traditional—have no special moral status in and of themselves, but, like any other human activity, can become tools for immoral conduct if we harm others in the process.

LEGAL ISSUES

While in about a half dozen countries today homosexuality and adultery are punishable by death, the trend has been to decriminalize non-traditional sexual practices, and this is also the case in the U.S. The U.S. federal government has enacted several general sex laws regarding the distribution of obscene material, sex abuse, and sexual exploitation of children. But the laws pertaining to typical non-traditional sexual practices are determined by each state individually, not the federal government. Throughout U.S. history, most states have used their authority to criminalize adultery, premarital sex, homosexuality, pornography and prostitution. The result has been an inconsistent patchwork of laws from one state to another. The age of sexual consent can be 16, 17 or 18, depending on one’s state. Two states allow for some forms of prostitution, about a dozen criminalize premarital sex, and about 20 criminalize adultery. Supreme Court rulings, though, set some guidelines for the sex laws that states can or cannot enact.

Homosexuality and Gay Marriage

Over the past few decades, disputes over homosexuality and gay marriage laws have been particularly prominent. From the founding of the U.S., all states enacted sodomy laws that prohibited anal sex; these were originally adapted from earlier British “buggery laws” that carried the death penalty. State sodomy laws typically applied to both male-male and male-female situations, but they were usually enforced only with violent sexual crimes such as sexual assault and rape. Over time, penalties were reduced from death to fines and imprisonment. When the gay rights movement began in the 1960s and several states repealed their sodomy laws altogether, other conservative states rewrote their sodomy laws to apply to only homosexual activity. In a 1986 sodomy case, Bowers v. Hardwick, the Supreme Court upheld the rights of states to have sodomy laws, maintaining that nothing in the Constitution "would extend a fundamental right to homosexuals to engage in acts of consensual sodomy." However, the Supreme Court reversed its decision in the landmark case Lawrence v. Texas (2003). According to that ruling, state laws criminalizing homosexual activity are unconstitutional since they violate the right to privacy. The court noted that public opinion, both in the U.S. and Europe, had turned against sodomy laws and there was a growing sense that the rights of homosexuals should be protected:

In the United States criticism of Bowers has been substantial and continuing, disapproving of its reasoning in all respects, not just as to its historical assumptions. . . . To the extent Bowers relied on values we share with a wider civilization, it should be noted that the reasoning and holding in Bowers have been rejected elsewhere. The European Court of Human Rights has followed not Bowers. . . . Other nations, too, have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct. . . . There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent. [Lawrence v. Texas, majority opinion]

Ultimately, the Lawrence decision defends the privacy of homosexuals in their bedrooms as a constitutionally protected liberty right, and the presumption is that this ruling will ultimately invalidate adultery and anti-fornication laws as well.

           Granting legal protection to private and consensual homosexual activity is one thing, but allowing gay couples to marry is another. Beginning in 2004, though, several states have permitted same sex marriages, particularly Connecticut, Iowa, Massachusetts and Vermont. Defenders of gay marriage legislation see it in part as a matter of justice: heterosexual couples can express their commitment to each other through marriage, and it is discriminatory to deny this to homosexuals. Marriage also grants couples a range of legal rights, such as to adopt children, inherit property, be on a family insurance policy, visit relatives in hospitals. Critics of gay marriage legislation argue that marriage is a unique contract with religious and moral implications that has historically applied to only heterosexual couples; allowing gay couples to marry undermines the historic nature of the institution itself. Also, critics argue, children thrive better in households with heterosexual parents, and marriage should be about what’s in the best interests of children. Some states offer a compromise arrangement—civil unions—which give gay couples a select set of legal rights, but not as many as full marriage.

           In reaction to the trend towards gay marriage, about 25 states have amended their state constitutions to prohibit same sex marriage. Several efforts have been made to do this with the national constitution as well, but so far all have failed. However, anticipating the gay marriage trend, in 1996 Congress passed the Defense of Marriage Act, which had the practical effect of limiting the rights of legally married homosexuals. There are two central components to the law. First, gay marriages legalized in one state do not have to be acknowledged in another state:

No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

Second, the federal government itself will not acknowledge gay marriages:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”

The effect of this second stipulation is that gay couples, even when legally married in some states, cannot receive any legal benefits of marriage at the federal level, such as social security or tax benefits.

Pornography

Pornography is another area of sexual activity that has been legally controversial. Pornography is defined as the explicit depiction of sexual subject matter with the primary purpose of causing sexual arousal. A key component of pornography is that it is a representation of sexual activities through some type of media, such as drawings, photographs, film, and writing. While artistic depictions of erotic images have been around since ancient civilization, pornography as a phenomenon did not emerge until cheap and easily accessible forms of media were created. With the printing press came erotic novels, with the camera came erotic photographs, and with film came erotic movies. At each juncture these works were censored by governments and religious authorities, and in 1857 Britain enacted one of the first anti-pornography laws, the Obscene Publications Act. A few years later the Act was clarified: material is defined as obscene depending on “whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall.”

           In the U.S. each state has devised their own laws that prohibit the publication, sale and circulation of obscene material. The critical issue with all of these laws is whether they infringe on citizen’s First Amendment rights that guarantee free speech and press. That is, is pornography protected by the Constitution? This question was answered in the 1973 Supreme Court case, Miller v. California, which set limits to how extreme erotic material can be before states can rightfully ban it. To that end, they established a three-part test to determine whether any given erotic work crossed the line into the realm of legal obscenity:

The basic guidelines for the trier of fact must be: (a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest . . . (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. [Miller v. California]

In essence, states may restrict an obscene work and punish offenders when the work (1) appeals to base sexual interest according to community standards, (2) depicts sexual conduct in a blatantly offensive way, and (3) lacks serious literary, artistic, political, or scientific value. While the Miller test for obscenity does not use the word “pornography”, it in essence draws a distinction between hardcore and softcore pornography: hardcore pornography fulfills the above three conditions and is not Constitutionally protected, while softcore pornography does not fulfill the three conditions and is thus Constitutionally protected. Even though much of the pornography distributed throughout the U.S. qualifies as hard core, state and federal prosecutors typically restrict their focus to child pornography cases.

ARGUMENTS PRO AND CONTRA

The Conservative Position

The conservative position regarding sex is that sexual activity should take place only between a man and a woman in a monogamous marriage. Nontraditional sexual practices such as premarital sex, homosexuality, adultery, and pornography are immoral and should be illegal. The main arguments for the conservative position are these:

1. Natural law: sexual activity is for the purpose of procreation, and purely recreational sex is contrary to this natural aim. Human nature is not open-ended, and does not allow for a free-for-all of any conduct that we like. Our nature is defined by a larger human good that is reflected in many of our natural inclinations and functions. Sex is one of these: it is there for the continuation of the species, which for us involves a committed monogamous relation between one man and one woman. A criticism of this argument is that sexual activity serves a wider range of functions than mere procreation. It strengthens a couple’s relationship, enhances their feelings towards each other, and gives people a great sense of pleasure; these non-procreative functions apply to many nontraditional sexual practices as well as they do to traditional ones.

2. Family values: Nontraditional sexual practices damage the social institution of marriage and its commitment to raising children in the most stable home situation. Society is not just about the desires of individual adults, but also about raising the next generation of citizens who will carry on in our footsteps and hopefully improve on what we’ve done. Nontraditional sexual practices weaken family units by leading to single parenthood, same sex parenthood, divorces, marital conflict, all of which reduce a child’s opportunity to thrive. A criticism of this argument is that children thrive just as well in many nontraditional family settings as they do in traditional ones. Certainly, all parents should give the highest priority to their children’s wellbeing, but there are ways of doing this without eliminating nontraditional sexual practices.

3. Harm from STDs and pregnancy: Nontraditional sexual practices are accompanied by serious harms, such as sexually transmitted diseases, unwanted pregnancies, and psychological feelings of shame. To the extent that we judge the rightness of our conduct based on their consequences, the negative side effects of nontraditional sexual practices are enormous, and not worth the risk. A criticism of this argument is that there are ways of reducing the risks associated with nontraditional sexual practices. Safe sex reduces STDs, contraception use reduces unwanted pregnancies, avoiding one night stands reduces feelings of shame. With the right type of risk management, the benefits of many nontraditional sexual practices may outweigh their potential harms.

The Liberal Position

The liberal position regarding sex is that any type of non-harmful or non-exploitive sexual conduct is morally permissible and should be legal, including premarital sex, homosexuality, adultery, and pornography. The main arguments for the liberal position are these:

1. Freedom: One of our most important values is the freedom of individuals to act as they choose, as long as their actions do not harm others, and this includes nontraditional sexual activity. Toleration of differences is an important component of a free society, and, while conservative critics might not especially like nontraditional sexual practices, they are not justified in attempting to suppress them. A criticism of this argument is that the freely chosen sexual actions of nontraditionalists may have a negative impact on the lives of traditionalists. Sexual permissiveness pervades all aspects of culture—movies, television shows, music, internet sites—and this compromises the abilities of traditional parents to raise their children in a way that conforms to more traditional sexual values.

2. Cultural relativism: Like many social values, moral attitudes about sexual practices vary dramatically from culture to culture, and our society has already grown to accept nontraditional sexual practices as a social norm. It makes no sense to hold people to a 19^th century standard of sexual morality when our culture has shifted to one that is so much more sexually permissive. A criticism of this argument is that just because everyone is doing it doesn’t mean that society should approve of it. True, people’s sexual attitudes and behavior do change with cultural trends, but traditional sexual values have withstood the test of time and remain an important standard of morality amidst cultural shifts.

3. Different Strokes: Some people are not suited for traditional monogamous marriage, and sexual alternatives should be available to them. To the extent that homosexuality is biologically grounded, it is not realistic to expect gays to change their sexual orientation—any more than it is possible for heterosexuals to change theirs. The average age for marriage is now around age 27, and it is unrealistic for young couples to postpone sex until then, and statistics show that hardly anyone does anyway. Pornography can also make that long waiting time more manageable. Some marriages are beyond repair, but the couples may need to stay together for financial reasons or because of children; extramarital options can make their lives more fulfilling. A criticism of this argument is that traditional monogamous marriage is a viable option for most people. Some may opt out if they find it too restricting, but that doesn’t mean society should approve of every sexual activity that nontraditionalistss choose to engage in.

A Middle Ground

While disputes over sexual morality can get rather heated, there are several opportunities for compromise, and the U.S. has already embraced some of these. The most pervasive nontraditional sexual practice is premarital sex, and people largely approve of it. The most potentially damaging nontraditional sexual practice is adultery, and people largely condemn it. Pornography is widely used, and, though soft core forms are Constitutionally protected, hard core forms are not, and child pornographers are actively prosecuted. While people are equally divided over the morality of homosexuality, there is growing recognition of the biological factors driving homosexual orientation. In the spirit of toleration, the most important concession is the decriminalization of homosexuality, and this has now been done. Thus, traditionalists can still disapprove of it if they so choose, yet homosexuals can legally practice it. Carving out a middle-ground position on same sex marriage is more challenging. Civil unions offer a compromise legal arrangement, but the federal government does not currently acknowledge these under the Defense of Marriage Act.

#2.

IS HOMOSEXUALITY ABNORMAL? PRO AND CONTRA

John Finnis and The American Psychological Association

Take an average homosexual couple and compare it to an average married heterosexual couple. Are they essentially the same, or is the homosexual one abnormal and lacking in some fundamental way? On one side of the issue, Australian law professor John Finnis (b. 1940) argues that homosexual activities are indeed inherently flawed since they fail to achieve a higher good found only in conjugal love. Sex within marriage has the two common goods of procreation and friendship, which together makes the married couple a single unit. Homosexual acts, by contrast, involve using one’s body solely for gratification, and this ultimately harms the person by making him a slave to his private enjoyment. According to Finnis, homosexual partners cannot achieve true friendship through their sexual activity since it would not done for the purpose of procreation. Not only do homosexuals harm themselves, they also harm real marriage by making a mockery of conjugal love and its responsibilities. On the other side of the issue, the American Psychological Association maintains that homosexual conduct is a variant of normal behavior, and homosexual relationships are essentially equivalent to heterosexual ones. High percentages of homosexual couples have committed relationships, and the social aspects of their relationships resemble those of heterosexual ones. Marriage offers social, psychological, and health benefits, and, according to the APA, homosexual couples should be allowed to marry so they too can have these benefits. Both selections below are from court cases pertaining to homosexuality. Finnis supplied written affidavits in the Colorado case Evans v. Romer (1993), and the American Psychological Association filed an Amici Curiae brief (literally “friends of the court”) in support of gay marriage in California’s In re Marriage Cases (2008).

PRO: JOHN FINNIS

[Marital Common Good vs. Instrumentalization]

The underlying thought is on the following lines. In masturbating, as in being masturbated or sodomized, one's body is treated as instrumental for the securing of the experiential satisfaction of the conscious self. Thus one disintegrates oneself in two ways, (1) by treating one's body as a mere instrument of the consciously operating self, and (2) by making one's choosing self the quasi-slave of the experiencing self which is demanding gratification. The worthlessness of the gratification, and the disintegration of oneself, are both the result of the fact that, in these sorts of behavior, one's conduct is not the actualizing and experiencing of a real common good. Marriage, with its double blessing—procreation and friendship—is a real common good. Moreover, it is a common good that can be both actualized and experienced in the orgasmic union of the reproductive organs of a man and a woman united in commitment to that good. Conjugal sexual activity, and—as Plato and Aristotle and Plutarch and Kant all argue,—only conjugal activity is free from the shamefulness of instrumentalization that is found in masturbating and in being masturbated or sodomized.

           At the very heart of the reflections of Plato, Xenophon, Aristotle, Musonius Rufus, and Plutarch on the homoerotic culture around them is the very deliberate and careful judgment that homosexual conduct (and indeed all extramarital sexual gratification) is radically incapable of participating in, or actualizing, the common good of friendship. Friends who engage in such conduct are following a natural impulse and doubtless often wish their genital conduct to be an intimate expression of their mutual affection. But they are deceiving themselves. The attempt to express affection by orgasmic nonmarital sex is the pursuit of an illusion. The orgasmic union of the reproductive organs of husband and wife really unites them biologically (and their biological reality is part of, not merely an instrument of, their personal reality); that orgasmic union therefore can actualize and allow them to experience their real common good—their marriage with the two goods, children and friendship, which are the parts of its wholeness as an intelligible common good. But the common good of friends who are not and cannot be married (man and man, man and boy, woman and woman) has nothing to do with their having children by each other, and their reproductive organs cannot make them a biological (and therefore a personal) unit. So their genital acts together cannot do what they may hope and imagine.

           In giving their considered judgment that homosexual conduct cannot actualize the good of friendship, Plato and the many philosophers who followed him intimate an answer to the questions why it should be considered shameful to use, or allow another to use, one's body to give pleasure, and why this use of one's body differs from one's bodily participation in countless other activities (e.g., games) in which one takes and/or gets pleasure. Their response is that pleasure is indeed a good when it is the experienced aspect of one's participation in some intelligible good, such as a task going well or a game or a dance or a meal or a reunion. Of course, the activation of sexual organs with a view to the pleasures of orgasm is sometimes spoken of as if it were a game. But it differs from real games in that its point is not the exercise of skill; rather, this activation of reproductive organs is focused upon the body precisely as a source of pleasure for one's consciousness. So this is a "use of the body" in a strongly different sense of "use." The body now is functioning not in the way one, as a bodily person, acts to instantiate some other intelligible good but precisely as providing a service to one's consciousness, to satisfy one's desire for satisfaction.

           This disintegrity is much more obvious when masturbation is solitary. Friends are tempted to think that pleasuring each other by some forms of mutual masturbation could be an instantiation or actualization or promotion of their friendship. But that line of thought overlooks the fact that if their friendship is not marital. . . activation of their reproductive organs cannot be, in reality, an instantiation or actualization of their friendship's common good. In reality, whatever the generous hopes and dreams with which the loving partners surround their use of their genitals, that use cannot express more than is expressed if two strangers engage in genital activity to give each other orgasm or a prostitute pleasures a client or a man pleasures himself. Hence, Plato's judgment, at the decisive moment of the Gorgias, that there is no important distinction in essential moral worthlessness between solitary masturbation, being sodomized as a prostitute, and being sodomized for the pleasure of it. . . .

[Homosexuality is a Threat to Real Marriage]

Societies such as classical Athens and contemporary England (and virtually every other) draw a distinction between behavior found merely (perhaps extremely) offensive (such as eating excrement) and behavior to be repudiated as destructive of human character and relationships. Copulation of humans with animals is repudiated because it treats human sexual activity and satisfaction as something appropriately sought in a manner that, like the coupling of animals, is divorced from the expressing of an intelligible common good—and so treats human bodily life, in one of its most intense activities, as merely animal. The deliberate genital coupling of persons of the same sex is repudiated for a very similar reason. It is not simply that it is sterile and disposes the participants to an abdication of responsibility for the future of humankind. Nor is it simply that it cannot really actualize the mutual devotion that some homosexual persons hope to manifest and experience by it; nor merely that it harms the personalities of its participants by its disintegrative manipulation of different parts of their one personal reality. It is also that it treats human sexual capacities in a way that is deeply hostile to the self-understanding of those members of the community who are willing to commit themselves to real marriage in the understanding that its sexual joys are not mere instruments or accompaniments to, or mere compensation for, the accomplishments of marriage's responsibilities, but rather are the actualizing and experiencing of the intelligent commitment to share in those responsibilities. . . .

           This pattern of judgment, both widespread and sound, concludes as follows. Homosexual orientation—the deliberate willingness to promote and engage in homosexual acts—is a standing denial of the intrinsic aptness of sexual intercourse to actualize and give expression to the exclusiveness and openended commitment of marriage as something good in itself. All who accept that homosexual acts can be a humanly appropriate use of sexual capacities must, if consistent, regard sexual capacities, organs, and acts as instruments to be put to whatever suits the purposes of the individual "self" who has them. Such an acceptance is commonly (and in my opinion rightly) judged to be an active threat to the stability of existing and future marriages; it makes nonsense, for example, of the view that adultery is per se (and not merely because it may involve deception), and in an important way, inconsistent with conjugal love. A political community that judges that the stability and educative generosity of family life is of fundamental importance to the community's present and future can rightly judge that it has a compelling interest in denying that homosexual conduct is a valid, humanly acceptable choice and form of life and in doing whatever it properly can, as a community with uniquely wide but still subsidiary functions, to discourage such conduct.

PRO: AMERICAN PSYCHOLOGICAL ASSOCIATION

Homosexuality is neither a disorder nor a disease, but rather a normal variant of human sexual orientation. The vast majority of gay and lesbian individuals lead happy, healthy, well-adjusted, and productive lives.

           Many gay and lesbian people are in a committed same-sex relationship. In their essential psychological respects, these relationships are equivalent to heterosexual relationships.

           The institution of marriage affords individuals a variety of benefits that have a favorable impact on their physical and psychological well-being.

           A large number of children are currently being raised by lesbians and gay men, both in same-sex couples and as single parents. Empirical research has consistently shown that lesbian and gay parents do not differ from heterosexuals in their parenting skills, and their children do not show any deficits compared to children raised by heterosexual parents.

           State policies that bar same-sex couples from marrying are based solely on sexual orientation. As such, they are both a consequence of the stigma historically attached to homosexuality, and a structural manifestation of that stigma. By allowing same-sex couples to marry, the Court would end the antigay stigma imposed by the State of California through its ban on marriage rights for same-sex couples. In addition, allowing same-sex couples to marry would give them access to the social support that already facilitates and strengthens heterosexual marriages, with all of the psychological and physical health benefits associated with that support. In addition, if their parents are allowed to marry, the children of same-sex couples will benefit not only from the legal stability and other familial benefits that marriage provides, but also from elimination of state-sponsored stigmatization of their families. . . .

II. Sexual Orientation and Homosexuality.

A. The Nature of Sexual Orientation and Its Inherent Link to Intimate Relationships.

Sexual orientation refers to an enduring pattern of or disposition to experience sexual, affectional, or romantic attractions primarily to men, to women, or to both sexes. It also refers to an individual’s sense of personal and social identity based on those attractions, behaviors expressing them, and membership in a community of others who share them. Although sexual orientation ranges along a continuum from exclusively heterosexual to exclusively homosexual, it is usually discussed in terms of three categories: heterosexual (having sexual and romantic attraction primarily or exclusively to members of the other sex), homosexual (having sexual and romantic attraction primarily or exclusively to members of one’s own sex), and bisexual (having a significant degree of sexual and romantic attraction to both men and women). Sexual orientation is distinct from other components of sex and sexuality, including biological sex (the anatomical, physiological, and genetic characteristics associated with being male or female), gender identity (the psychological sense of being male or female), and social gender role (adherence to cultural norms defining feminine and masculine behavior).

           Sexual orientation is commonly discussed as a characteristic of the individual, like biological sex, gender identity, or age. This perspective is incomplete because sexual orientation is always defined in relational terms and necessarily involves relationships with other individuals. Sexual acts and romantic attractions are categorized as homosexual or heterosexual according to the biological sex of the individuals involved in them, relative to each other. Indeed, it is by acting—or desiring to act—with another person that individuals express their heterosexuality, homosexuality, or bisexuality. This includes actions as simple as holding hands with or kissing another person. Thus, sexual orientation is integrally linked to the intimate personal relationships that human beings form with others to meet their deeply felt needs for love, attachment, and intimacy. In addition to sexual behavior, these bonds encompass nonsexual physical affection between partners, shared goals and values, mutual support, and ongoing commitment.

           Consequently, sexual orientation is not merely a personal characteristic that can be defined in isolation. Rather, one’s sexual orientation defines the universe of persons with whom one is likely to find the satisfying and fulfilling relationships that, for many individuals, comprise an essential component of personal identity.

B. Homosexuality Is a Normal Expression of Human Sexuality.

In 1952, when the American Psychiatric Association published its first Diagnostic and Statistical Manual of Mental Disorders, homosexuality was included as a disorder. Almost immediately, however, that classification began to be subjected to critical scrutiny in research funded by the National Institute of Mental Health. That study and subsequent research consistently failed to produce any empirical or scientific basis for regarding homosexuality as a disorder or abnormality, rather than a normal and healthy sexual orientation. As results from such research accumulated, professionals in medicine, mental health, and the behavioral and social sciences reached the conclusion that it was inaccurate to classify homosexuality as a mental disorder and that the DSM classification reflected untested assumptions based on once-prevalent social norms and clinical impressions from unrepresentative samples comprising patients seeking therapy and individuals whose conduct brought them into the criminal justice system.

           In recognition of the scientific evidence, the American Psychiatric Association removed homosexuality from the DSM in 1973, stating that “homosexuality per se implies no impairment in judgment, stability, reliability, or general social or vocational capabilities.” After thoroughly reviewing the scientific data, the American Psychological Association adopted the same position in 1975, and urged all mental health professionals “to take the lead in removing the stigma of mental illness that has long been associated with homosexual orientations.” The National Association of Social Workers has adopted a similar policy.

           Thus, mental health professionals and researchers have long recognized that being homosexual poses no inherent obstacle to leading a happy, healthy, and productive life, and that the vast majority of gay and lesbian people function well in the full array of social institutions and interpersonal relationships. With particular relevance to the issues before the Court in this case, as explained at greater length in Sections III and IV below, such functioning includes the capacity to form healthy and mutually satisfying intimate relationships with another person of the same sex and to raise healthy and well-adjusted children.

           Like heterosexuals, lesbians and gay men benefit to the extent that they are able to share their lives with and receive support from their family, friends, and other people who are important to them. In many studies, for example, lesbians and gay men have been found to manifest better mental health to the extent that they hold positive feelings about their own sexual orientation, have developed a positive sense of personal identity based on it, and have integrated it into their lives by disclosing it to others (commonly referred to as “coming out of the closet” or simply “coming out”). By contrast, lesbians and gay men who feel compelled to conceal their sexual orientation tend to report more frequent mental health concerns than their openly gay counterparts, and are also at risk for physical health problems. In fact, no major mental health organization has sanctioned efforts to change sexual orientation.

           Moreover, like heterosexuals, gay people can be adversely affected by high levels of stress. The link between experiencing stress and manifesting symptoms of psychological or physical illness is well established in human beings and other species. To the extent that the portion of the population with a homosexual orientation is subjected to additional stress beyond what is normally experienced by the heterosexual population, it may, as a group, manifest somewhat higher levels of illness or psychological distress. Differences in stress between the heterosexual population and the homosexual population can be attributed largely to the societal stigma directed at the latter. As one researcher noted after reviewing the relevant scientific literature, lesbian, gay, and bisexual individuals “are exposed to excess stress due to their minority position and . . . this stress causes an excess in mental disorders.” In experiencing such excess stress, the gay and lesbian population is comparable to other minority groups that face unique stressors due to prejudice and discrimination based on their minority status. Given the unique social stressors to which they are subjected, the noteworthy fact is that the vast majority of gay men and lesbians effectively cope with these challenges and lead happy, healthy and well-adjusted lives.

III. Sexual Orientation and Relationships.

A. Gay Men and Lesbians Form Stable, Committed Relationships That Are Equivalent to Heterosexual Relationships in Essential Respects.

Like their heterosexual counterparts, many gay men and lesbians desire to form stable, long-lasting, committed relationships. Substantial numbers are successful in doing so. Empirical studies using nonrepresentative samples of gay men and lesbians show that the vast majority of participants have been involved in a committed relationship at some point in their lives, that large proportions are currently involved in such a relationship (across studies, roughly 40 – 70% of gay men and 45 – 80% of lesbians), and that a substantial number of those couples have been together 10 or more years. Recent surveys based on more representative samples of gay men, lesbians, and bisexuals support these findings and indicate that many same-sex couples are cohabiting. An analysis of data from the 2000 US Census reported that same-sex couples headed more than 594,000 households in the United States including more than 92,100 California households. More recent Census data indicate that the number of same-sex cohabiting couples in the United States was approximately 775,000 by 2005, with approximately 107,700 same-sex couples residing in California.

           Empirical research demonstrates that the psychological and social aspects of these committed relationships between same-sex partners closely resemble those of heterosexual partnerships. Like heterosexual couples, same-sex couples form deep emotional attachments and commitments. Heterosexual and same-sex couples alike face similar challenges concerning issues such as intimacy, love, equity, loyalty, and stability, and they go through similar processes to address those challenges. Empirical research examining the quality of intimate relationships also shows that gay and lesbian couples do not differ from heterosexual couples in their satisfaction with the relationship.

Based on the empirical research findings, the American Psychological Association has concluded that “[p]sychological research on relationships and couples provides no evidence to justify discrimination against same-sex couples.”

B. The Institution of Marriage Offers Social, Psychological, and Health Benefits That Are Denied to Same-Sex Couples.

Social scientists have long understood that marriage as a social institution has a profound effect on the lives of the individuals who inhabit it. In the nineteenth century, for example, the sociologist Emile Durkheim observed that marriage helps to protect the individual from “anomie,” or social disruption and the breakdowns of norms. Expanding on this notion, twentieth-century sociologists characterized marriage as “a social arrangement that creates for the individual the sort of order in which he can experience his life as making sense” and suggested that “in our society the role that most frequently provides a strong positive sense of identity, self-worth, and mastery is marriage.” Although it is difficult to quantify how the meaning of life changes for individuals once they are married, empirical research demonstrates that marriage has distinct benefits that extend beyond the material necessities of life. Both tangible and intangible elements of the marital relationship have important implications for the psychological and physical health of married individuals and for the relationship itself. Because they are denied the opportunity to marry, partners in same-sex couples are denied these benefits.

           Because marriage rights have been granted to same-sex couples only recently and only in one state (Massachusetts) and a few countries, no empirical studies have yet been published that systematically compare married same-sex couples to unmarried same-sex couples. However, a large body of scientific research has compared married and unmarried heterosexual couples and individuals. Based on their scientific and clinical expertise, amici believe it is appropriate to extrapolate from the empirical research literature for heterosexual couples — with qualifications as necessary — to anticipate the likely effects marriage would have on that segment of the sexual minority population that would choose to marry if allowed to do so. Amici believe that the potential benefits of marriage for gay men and lesbians in same-sex couples are similar to those that have been documented for heterosexuals.

           Married men and women generally experience better physical and mental health than their unmarried counterparts. These health benefits do not appear to result simply from being in an intimate relationship because most (although not all) studies have found that married individuals generally manifest greater well-being than comparable individuals in heterosexual unmarried cohabiting couples. The health benefits of marriage may be due partly to married couples enjoying greater economic and financial security than unmarried individuals. Of course, marital status alone does not guarantee greater health or happiness. People who are unhappy with their marriage often manifest lower levels of well-being than their unmarried counterparts, and experiencing marital discord and dissatisfaction is often associated with negative health effects. Nevertheless, married couples who are satisfied with their relationships consistently manifest higher levels of happiness, psychological well-being, and physical health than the unmarried.

           Being married also is a source of stability and commitment for the relationship between spouses. Social scientists have long recognized that marital commitment is a function not only of attractive forces (i.e., features of the partner or the relationship that are rewarding) but also of external forces that serve as barriers or constraints on dissolving the relationship. Barriers to terminating a marriage include feelings of obligation to one’s spouse, children, and other family members; moral and religious values about divorce; legal restrictions; financial concerns; and the expected disapproval of friends and the community. In the absence of adequate rewards, the existence of barriers alone is not sufficient to sustain a marriage in the long term. Not surprisingly, perceiving one’s intimate relationship primarily in terms of rewards, rather than barriers to dissolution, is likely to be associated with greater relationship satisfaction. Nonetheless, the presence of barriers may increase partners’ motivation to seek solutions for problems when possible, rather than rushing to dissolve a relationship that might have been salvaged. Indeed, the perceived presence of barriers is negatively correlated with divorce, suggesting that barriers contribute to staying together for at least some couples in some circumstances.

Same-sex relationships are held together by many of the same attracting forces as heterosexual couples; but marriage also provides heterosexual couples with institutionalized barriers to relationship dissolution that same-sex couples do not enjoy. Even in California, where couples seeking to dissolve a domestic partnership must do so by petitioning the Superior Court, same-sex couples most likely do not experience many of the same social barriers to relationship dissolution that are faced by married heterosexual couples. For example, although data are lacking in this area, it appears that social norms do not discourage the dissolution of a domestic partnership in the same way that they discourage marital divorce. In 2004, for example, when a new law expanded the benefits and obligations accorded to California’s domestic partners, the California Secretary of State sent a letter to registered domestic partners, warning them to consider the possible desirability of legally dissolving their partnership before the new statute took effect. It is difficult to imagine a parallel situation in which married couples would be encouraged to consider obtaining a divorce, suggesting that California domestic partnerships are not viewed as equivalent to marriage in terms of barriers to their dissolution.

Lacking access to legal marriage, the primary motivation for same-sex couples to remain together derives mainly from the rewards associated with the relationship rather than from formal barriers to separation. Given this fact, plus the legal and prejudicial obstacles that same-sex partners face, the prevalence and durability of same-sex relationships are striking. . . .

Source: Affidavit of John Finnis, Oct. 8, 1993, Evans v. Romer, No. 92CV7223, Denver County, Colorado, District Court. American Psychological Association, Brief Amici Curiae (2007), California Supreme Court, case S147999; notes have been removed; for complete text see www.courtinfo.ca.gov.

#3

Pornography: Harmful yet Legal?

Pamela Paul and Rodney A. Smolla

Since the creation of the Internet, use of pornography has skyrocketed, and even the most extreme forms of pornographic material are now readily available. Along with this increased use of porn is an increase in the harm that pornography brings to society. Has this increase in harm from pornography reached a tipping point where new laws are needed to prosecute disseminators of pornography? Below are two essays dealing with the connection between pornography, harm and legality. The first is by journalist Pamela Paul, author of Pornified: How Pornography Is Damaging Our Lives, Our Relationships, and Our Families (2006). Drawing on extensive interviews and surveys, Paul argues that pornography is now at a crisis level and she describes the serious negative effects it has on men, women, relationships, and children. For men it wastes valuable time, interrupts work days, displaces hobbies, and results in lost jobs and divorces. The process by which men become addicted to porn is gradual. The first step is usually an increase in frequency and quantity of viewing of pornography, and from there it moves to more extreme types of material that previously might have disgusted them. It affects men’s expectations of how women should look and act. In spite of this, women are viewing more porn and are becoming more tolerant of it. Most troubling, she argues, is the easy access that the majority of children today have to hard core pornography on the internet. The second essay, by Rodney A. Smolla, Dean of the University of Richmond School of Law, discusses whether pornography can be made illegal on the basis of the harm it is causing. He argues that harm alone is not sufficient grounds for making pornography illegal; rather, for it to be illegal, it must meet the definition of obscenity established by the Supreme Court in its landmark case Miller v. California. That definition involves a three-part test; a work is obscene if (1) it appeals to the prurient interest according to community standards, (2) depicts sexual conduct in a patently offensive way, and (3) lacks serious literary, artistic, political, or scientific value. According to Smolla, vast quantities of pornography already meet the Miller standard and can be prosecuted; thus, one solution to the problem is to put more resources into such prosecution . However, pornography that doesn’t count as “obscene” under the Miller standard is protected by the Constitution, regardless of how harmful it may be. The reason for this is that there is a natural temptation for us to move against offensive speech of all kind; strict standards like Miller prevent us from yielding to that temptation.

PAMELA PAUL: THE HARMFUL EFFECTS OF PORNOGRAPHY

[Introduction]

. . . . [O]n assignment to write about pornography for Time magazine, my eyes were blown wide open. During the weeks spent researching my article, I spoke with dozens of men and women about how profoundly pornography had affected their lives. I talked to male pornography users, female pornography fans and girlfriends of pornography fans, sex addicts and their wives, child psychologists and couples therapists.

           Much of what I heard during these interviews was not just news; it was revelatory. There was a story about pornography that had not yet been told, a story many Americans, male and female, don’t realize is unfolding – in front of their eyes, inside their minds, on their family computer – at this very moment. In researching my book [Pornified], I sought answers to some simple questions: Who uses pornography and why? What do men see in it? Are more women indulging? How does pornography affect people? Will looking at online pornography at age nine affect boys and girls when they reach sexual maturity? What is the impact of a pornified culture on relationships and on society as a whole?

           To find out the private stories that people suspect but never hear; experience, but never talk about, I interviewed more than 100 people (approximately 80 percent male), all heterosexual, about the role pornography plays in their lives. While the scope of such qualitative research can never claim to be fully representative of all Americans, the people interviewed were expressly chosen to provide a broad spectrum. They ranged in age from 21 to 59; most were in their 20s and 30s. The men and women interviewed were diverse – ethnically, geographically, socio-economically. They were from a variety of backgrounds and religions, educations and occupations. No “profile” of the pornography user emerged because pornography cuts across all swathes of society. . . .

           We can lament what’s happened to our pornified culture – in which the values, aesthetics and standards of pornography have trickled down into mainstream music, television and movies – but what’s truly worrisome is how pornography has affected the lives of individuals. Despite the claim that porn is harmless entertainment, the use of pornography has serious, negative effects.

           Countless men described how, while using porn, they have lost the ability to relate or be close to women. They have trouble being turned on by “real” women, and their sex lives with their girlfriends or wives collapse. These are men who seem like regular guys, but spend hours each week with porn – usually online. And many of them admit they have trouble cutting down their use. They also find themselves seeking out harder and harder pornography.

           Many women try to write porn off as “a guy thing,” but are profoundly disturbed when they are forced to come to terms with the way porn plays into their lives – and the lives of their boyfriends or husbands – today. They find themselves constantly trying to measure up to the bodies and sexual performance of the women their men watch online and onscreen. They fear that they’ve lost the ability to turn their men on anymore – and quite often, they have.

           One 24-year-old woman from Baltimore confided, “I find that porn’s prevalence is a serious hindrance to my comfort level in relationships. Whether it’s porn DVDs and magazines lying around the house, countless porn files downloaded on their computers, or even trips to strip clubs, almost every guy I have dated (as well as my male friends) is very open about his interest in porn. As a result, my body image suffers tremendously. . . I wonder if I am insecure or if the images I see guys ogle every day has done this to me. . .” She later confessed that she felt unable to air her concerns to anyone. “A guy doesn’t think you’re cool if you complain about it,” she explained. “Ever since the Internet made it so easy to access, there’s no longer any stigma to porn.”

           A 38-year-old woman from a Chicago suburb described her husband’s addiction to pornography: “He would come home from work, slide food around his plate during dinner, play for maybe half an hour with the kids, and then go into his home office, shut the door and surf Internet porn for hours. I knew – and he knew that I knew. I put a filter on his browser that would email me every time a pornographic image was captured. . . . I continually confronted him on this. There were times I would be so angry I would cry and cry and tell him how much it hurt. . . . It got to the point where he stopped even making excuses. It was more or less: “I know you know and I don’t really care. What are you going to do about it?”

           Of course, many mothers – and fathers (even those who use porn themselves) – are particularly disturbed by the idea that their children will look at pornography. Make no mistake: Experts today say there is no way parents can prevent their children from looking at pornography at a young age – as young as two- to six-years-old, according to Nielsen/NetRatings. Even if a parent uses a filtering program, children can likely outmaneuver the software, or see porn at their local library or a friend’s house. And early exposure to pornography seems to be influencing the dating antics of pre-teens and teenagers, as well as in more serious and disturbing behavior.

           In researching my book, I focused on four areas in which pornography has major repercussions on peoples’ lives. First of all, and perhaps most obvious, pornography has a negative impact on the men who use it. But it also has a major impact on women, and on relationships between men and women. And perhaps most frightening of all, especially moving forward, pornography is having a serious impact on children – and at younger ages than ever before.

Pornography’s Effects on Men

When opponents of pornography talk about the ways in which pornography affects people, they often talk about how pornography hurts women. But this leaves out an important point: Pornography is also harmful to the men who use it. Men told me they found themselves wasting countless hours looking at pornography – on their televisions and DVD players, and especially online. They looked at things they would have once considered appalling – bestiality, group sex, hardcore S&M, genital torture, child pornography. They found the way they looked at women in real life warping to fit the pornography fantasies they consumed on screen. Their daily interactions with women became pornified. Their relationships soured. They had trouble relating to women as individual human beings. They worried about the way they saw their daughters, and girls their daughters’ age. It wasn’t only their sex lives that suffered – pornography’s effects rippled out, touching all aspects of their existence. Their work days became interrupted, their hobbies tossed aside, their family lives disrupted. Some men even lost their jobs, their wives and their children. The sacrifice is enormous.

           Nor is it only the most violent hardcore pornography that wreaks damage. According to a large-scale 1994 report summarizing 81 peer-reviewed research studies, most studies (70 percent) on non-aggressive pornography find that exposure to pornography has clear negative effects. Gary Brooks, a psychologist who studies pornography at Texas A&M University, explains that “soft-core pornography has a very negative effect on men as well. The problem with soft-core pornography is that it’s voyeurism – it teaches men to view women as objects rather than to be in relationships with women as human beings.”

           Because pornography involves looking at women but not interacting with them, it elevates the physical while ignoring or trivializing all other aspects of the woman. A woman is literally reduced to her body parts and sexual behavior. Not surprisingly, half of Americans say pornography is demeaning towards women, according to the Pornified/Harris poll. Women are far more likely to believe this – 58 percent compared with 37 percent of men. Only 20 percent of women – and 34 percent of men – think pornography isn’t demeaning. Of course, with increased viewing, pornography becomes acceptable and what once disturbed fails to upset with habituation. While 60 percent of adults age 59 and older believe pornography is demeaning towards women, only 35 percent of Gen Xers – the most tolerant and often heaviest users – agree.

           But pornography doesn’t just change how men view women – it changes how men see themselves and how their own lives play out. Advocates aren’t shy about extolling pornography’s enticing effects. The first step is usually an increase in frequency and quantity of viewing. More times logging online or clicking the remote control, prolonged visits to certain Web sites, a tendency to fall into a routine. In a 2004 Elle/MSBNC.com poll, nearly one in four men admitted they were afraid they were “overstimulating” themselves with online sex. In fact, that routine is an essential ingredient in the financial success of high-tech porn. Wendy Seltzer, an advocate for online civil liberties, argues that pornographers should not even be concerned over piracy of their free material. According to Seltzer, “People always want this stuff. Seeing some of it just whets their appetite for more. Once they get through what’s available for free, they’ll move into the paid services.” And once they’ve indulged in more quantity, they want more quality – meaning more action, more intensity, more extreme situations. The impetus to find harder core fare affects the entire industry.

           Particularly on the Internet, men find themselves veering off into pornographic arenas they never thought they could find appealing. Those who start off with soft-core develop a taste for harder core pornography. Men who view a lot of pornography talk about their disgust the first time they chanced upon an unpleasant image or unsolicited child porn. But with experience, it doesn’t bother them as much – shock wears thin quickly, especially given the frequent image assault they encounter on the Internet. They learn to ignore or navigate around unwanted imagery, and the third time they see an unpleasant image, it’s merely an annoyance and a delay. At the same time that such upsetting imagery becomes less unpleasant, arousing imagery becomes less interesting, leading the online user to ratchet up the kind of pornography he seeks, seeking more shocking material than he started out with.

           Most women have no idea how often their boyfriends and husbands look at pornography. Usually, the deception is deliberate, though many men also deny how often they look at it. Most simply don’t think about quantifying the amount they view. And while men consider trust crucial for a healthy relationship, they seem willing to flout that trust when it comes to pornography – deceiving their significant others into thinking they’re either not looking at it at all or are looking at it less frequently. Fitting pornography into one’s life isn’t always easy.

Pornography’s Effects on Women

Having won over men, the pornography industry is eager to tap into the other potential 50% of the market: women. A number of companies are increasing production of pornography made by and for women, and the industry is keen to promote women’s burgeoning pornography predilection. Playgirl TV announced its launch in 2004 with programming to include an “erotic soap opera” from a woman’s point of view, a 1940s style romantic comedy with “a sexual twist,” and roundtable discussions of “newsworthy women’s topics.”

           In recent years, women’s magazines have regularly featured a discussion of pornography from a new perspective: how women can introduce it into their own lives. While many women continue to have mixed or negative feelings towards pornography, they are told to be realistic, to be “open-minded.” Porn, they are told, is sexy, and if you want to be a sexually attractive and forward-thinking woman, you’ve got to catch on. Today, the pornography industry has convinced women that wearing a thong is a form of emancipation, learning to pole dance means embracing your sexuality and taking your boyfriend for a lap dance is what every sexy and supportive girlfriend should do. According to a 2004 Internet poll conducted by Cosmopolitan magazine, 43 percent of women have been to a strip club. In an Elle magazine poll, than half the respondents described themselves as “pro-stripping” (56 percent) and said they weren’t bothered if their partner went to strip clubs (52 percent).

           Some attribute the rise in female consumption to an increased supply in pornography for women. That may be part of the reason, but there’s more at play than a simple supply-and-demand equation. Broader societal shifts in men’s and women’s roles in relationships and a corresponding swing in women’s expectations and attitudes towards their sexuality are driving women to pornography too. Sociologist Michael Kimmel, who studies pornography and teaches sexuality classes at the State University of New York at Stony Brook, says, “Twenty years ago, my female students would say, ‘Ugh, that’s disgusting,’ when I brought up pornography in class. The men would guiltily say, ‘Yeah, I’ve used it.’ Today, men are much more open about saying they use pornography all the time and they don’t feel any guilt. The women now resemble the old male attitude: They’ll sheepishly admit to using it themselves.” Women’s attitudes have merged even more closely with men’s.

           The Internet measurement firm comScore tracked close to 32 million women visiting at least one adult Web site in January 2004. Seven million of them were ages 35 to 44, while women over the age of 65 totaled only 800,000. Nielsen NetRatings has found the figures to be somewhat lower, with 10 million women visiting adult content Web sites in December 2003. In a 2004 Elle/MSNBC.com poll, 41% of women said they have intentionally viewed or downloaded erotic films or photos and 13% watched or sexually interacted with someone on a live Webcam.

           As much as women are touted as the new pornography consumer, they still lag far behind men. The spitfire headlines do little to reflect the reality of most women’s experiences. Statistics belie the assertions of the pro-porn movement and the go-go girl mentality espoused by female pornography purveyors. While some polls show that up to half of all women go online for sexual reasons, the percentage of women who say they do are likely exaggerated by the inclusion of erotica, dating, and informational sites in the definition of “adult” Internet content, areas to which women are disproportionately drawn compared with men. Many women who are tracked through filtering sites are linked to pornography by accident, visit out of curiosity, or are tracking down their male partner’s usage. Others feel like admitting they don’t look at pornography at all is akin to affixing a “frigid” sticker to their chastity belts; better not to come off as uptight.

Pornography’s Effects on Relationships

For many wives and girlfriends, it becomes immediately clear that the kind of pornography their men are into is all about the men – about their needs, about what they want, not about their women or their relationships or their families. Men aren’t completely in denial either; they often recognize their kind of pornography doesn’t exactly reflect well on themselves or on their partners. It’s not surprising to either party when a woman ends up feeling second rate. Not only does pornography dictate how women are supposed to look; it skews expectations of how they should act. Men absorb those ideals, but women internalize them as well. According to the Pornified/Harris poll, most women (six out of ten) believe pornography affects how men expect them to look and behave. In fact, only 15 percent of women believe pornography doesn’t raise men’s expectations of women.

           Men tell women their consumption of pornography is natural and normal, and if a woman doesn’t like it, she is controlling, insecure, uptight, petty, or a combination thereof. The woman demands. She is unreasonable. He has to give up something he’s cherished since boyhood. She’s not supportive. She blows everything out of proportion. If it weren’t for this attitude of hers, the relationship would be fine. For a woman to judge pornography as anything but positive is read as a condemnation of her man or at the very least, of his sexual life. Discomfort with pornography also becomes a woman’s discomfort with her own sexuality. Still, the Pornified/Harris poll found that only 22 percent of Americans believe pornography improves the sex life of those who look at it. Indeed one-third of respondents to this book’s nationwide poll believe looking at pornography won’t harm a couple’s relationship.

           Despite appearances, pornography isn’t precisely a solo activity. As interviews with men and women attest, it plays into how people approach and function in relationships. Whether a couple watches together, or one or both partners uses it alone, pornography plays a significant role not only in sex but in a couple’s sense of trust, security, and fidelity. As Mark Schwartz, clinical director of the Masters and Johnson Clinic in St. Louis, Missouri, says, “Pornography is having a dramatic effect on relationships at many different levels and in many different ways – and nobody outside the sexual behavior field and the psychiatric community is talking about it.” . . .

           Mary Jo McCurley, an attorney who has practiced family law in Dallas since 1979, agrees. In the past five years, more and more cases are brought forth in which a husband’s pornography habit is a factor. “We see cases in which the husband becomes so immersed in online porn it destroys the marriage,” she explains. “Not only is it unsettling for the wife that he’s using other women to get off, but it takes away from the time they could spend together as a couple.” In divorce cases these days, enormous amounts of time and money are spent recovering pornography off computers. “You can hire experts who specialize in digging through hard drives,” McCurley says. “There are people who have made a profession out of it. It’s become quite common in Texas divorce.”

Pornography’s Effects on Children

It does seem like pornography’s infiltration into our lives has become inevitable. Learning to like pornography online is fast becoming the new norm in this country. According to the Pornified/Harris poll, 71 percent of 18-to-24-year-olds agreed with the statement, “I have seen more pornography online than I have seen offline (in magazines, movie theatres, TV)” – twice the number of Baby Boomers. More than half admit it’s hard for them to go online without seeing pornography.

           This moment of contact takes place at an increasingly young age. According to a 2001 study by the Kaiser Family Foundation, seven in ten 15-to17-year-olds admitted to “accidentally” stumbling across pornography online. Girls were more likely than boys to say they were “very upset” by the experience (35 percent versus 6 percent). While a majority of 15-to 24-year-olds (65 percent) said they thought viewing such pornography could have a serious impact on people under 18, younger kids were more likely to take it in stride: 41 percent of 15-to17-year-olds said it wasn’t a big deal.

           Statistics show that about half – if not all – teenagers are exposed to pornography one way or another. A 2004 study by Columbia University found that 11.5 million teenagers (45 percent) have friends who regularly view Internet pornography and download it. The prevalence of teens with friends who view and download Internet pornography increases with age, from nearly one-third of 12-year olds to nearly two-thirds of 17-year olds saying they have friends who use online porn. Boys are significantly more likely than girls to have friends who view online pornography: 46 percent of 16- and 17-year old girls say they have friends who regularly view and download Internet pornography, compared with 65 percent of boys the same age; the comparable percentage for 12- and 13-year old girls and boys are 25 percent and 37 percent respectively.

           Psychotherapists and family counselors across the country attest to the popularity of pornography among pre-adolescents. “I’ve had my own therapy practice for over 25 years,” says Judith Coché, a clinical psychologist who runs The Coché Center in Philadelphia and teaches psychiatry at the University of Pennsylvania. “I feel like I’ve seen everything.” She pauses and says almost apologetically, “I’m going to say something really strong. I’ve been walking around my practice saying, ‘We have an epidemic on our hands.’ The growth of pornography and its impact on young people is really, really dangerous. And the most dangerous part is that we don’t even realize what’s happening.”

           Coché describes one case in which an 11-year-old girl was found creating her own pornographic Web site. When her parents confronted her, she said that pornography was considered ‘cool’ among her friends. Perhaps it wasn’t a very good idea, the girl admitted, but all her friends were doing it. Her parents were horrified.” More boys – often pre-adolescents – are being treated for pornography addiction, Coché says. “Before the Internet, I never encountered this.” . . .

           Pornography is wildly popular with teenage boys in a way that makes yesteryear’s sneaked glimpses at Penthouse seem monastic. The prevalence of the Internet among teenagers has made pornography just another online activity; there is little barrier to entry and almost no sense of taboo. Instead, pornography seems to be a natural rite and an acceptable pastime. One teenage boy in Boston explained recently to The New York Times, “Who needs the hassle of dating when I’ve got online porn?” Pornography is integrated into teenage pop culture; videogame culture, for example, exalts the pornographic. One 2004 video, “The Guy Game,” features women exposing their breasts when they answer questions wrong in a trivia contest; the game, available on Xbox and PlayStation 2, didn’t even get an “Adults-Only” rating. (The game manufacturer is being sued because one woman included in the footage was only 17 and didn’t give her consent to be filmed.) . . .

           Touring around this country to promote my book, I heard again and again from concerned parents. “I know my 14-year-old son is looking at extremely hard-core pornography, but what can I do about it? He tells me he needs the computer for schoolwork.” “I have a 10-year-old daughter. I don’t want to even think about what boys her age are learning about the opposite sex online.” “My daughter found pornography that my husband downloaded on the family computer.” A pediatric nurse told me there was an incident in her practice in which toddlers acted out moves from a pornographic movie. A day’s worth of nationwide headlines inevitably brings up stories of children encountering pornography at the local library, child pornography arrests, and school incidents in which teachers are caught looking at pornography on school computers during school hours. It is terrible enough that adults are suffering the consequences of a pornified culture. But we must think about the kind of world we are introducing to our children. Certainly everyone – liberals and conservatives, Democrats and Republicans – can agree with the statement, “It wasn’t like this when we were kids.” And I can’t imagine anyone would have that thought without simultaneously experiencing a profound sense of fear and loss.

RODNEY A. SMOLLA: HARMFUL PORNOGRAPHY AND LEGAL OBSCENITY

I know the focus of this hearing is not on constitutional law as such, but on the nature of the harms associated with sexually explicit material. What I want to do is focus on the extent to which, as you think about possible legislation, you are permitted under existing constitutional doctrine to take that harm, which is undisputed, and use it as the predicate for justifying legislation, and the extent to which you are not, the extent to which existing First Amendment doctrine says while that harm may exist, you cannot make use of that to justify this particular type of legislation.

[The Miller Standard of Legal Obscenity]

The first thing I want to do is just talk about a habit that all of us have, I have and most of us have, in referring to this area. We will use a word like, a phrase like “sexually explicit,” or we will talk about pornography or porn, or as I often do, pornography and obscenity. And I think all three Senators probably use those types of phrases as a compound, and it is natural, we all do.

           But First Amendment doctrine is more precise, and First Amendment doctrine takes the vast array of sexually explicit material that we know exists ubiquitously on the Internet. It exists on satellite television, cable television and so on. And it draws a sharp distinction under existing doctrine. Between that sexually explicit material that is legally obscene, which is really the only true First Amendment term of art, and that which is lewd or pornographic or sexually explicit, but does it make the three-part test of Miller v. California? [That is, does it (1) appeal to the prurient interest according to community standards, (2) depict sexual conduct in a patently offensive way, (3) lack serious literary, artistic, political, or scientific value.]

           The first important thing for you to think about is that the probability is that vast quantities of what is now on satellite, cable and the Internet, already meet the Miller standard. That is to say, someplace in some locality under community standards it can already be prosecuted, because it would already satisfy the Miller standard.

           So one sort of common sense thing to keep in mind is this may not be a matter of needing new legislation, it may simply be a matter of making the decision at the local level, the State level or the Federal level, to put more resources into prosecution under the Miller standard, which you are always free to do.

           More importantly, I think, what I would like to do is address this question: to what extent can you go beyond Miller? Are there pockets of this issue that you can address that allow you to pass legislation to get at material that is protected under the Miller standard? And the answer is, that if you want to go after this material there is some good news and bad news. The good news--and this is conjured up by Senator Feingold’s remarks--is that the Supreme Court has already said that children are a special case, really in two senses.

           First of all, you can use filtering and filtering technology as a way of contending with this problem. That comes preapproved from the Supreme Court of the United States. It means if you put all of the various decisions of the last 7 or 8 years together, that some combination of what parents do in the home and what libraries can do, which the Supreme Court said is permissible in the American Libraries case, that is one way of contending with it. And of course, there is no protection for trafficking in true child pornography. That is to say, when children are actors that are part of the presentation, that is a heinous exploitation of children and there is nothing whatsoever in the Constitution standing between efforts by Congress to bolster that effort.

           My last point, however, is the sort of bad news, if you will, if you want to aggressively go after this material under First Amendment doctrine. I would characterize it as having two important points. First of all, you cannot simply listen to evidence, as credible and convincing as I am sure it will be, that there are harms associated with the sexually explicit material, and then label those harms compelling governmental interest, and use that device to say, we can outlaw material protected under Miller, but nevertheless causing trouble in our society because we can meet the strict scrutiny test under the First Amendment and justify it by compelling governmental interest. That is not existing First Amendment doctrine.

           Rather, existing First Amendment doctrine says when you have a specific issue that you are dealing with, incitement to riot, threats to violence, libel, prior restraint, obscenity-- and there is a specific First Amendment test that sets forth existing, clear doctrines for dealing with that, that displaces the strict scrutiny test. The reason for that, the reason that is not a bad constitutional principle, is that there is a tremendous temptation for us to move against offensive speech of all kind, flag burning, speech that seems to promote terrorist ideals that we do not agree with, sexually explicit speech. The whole history of this country is wrapped up in the natural tendency that all of us have to know evil speech and to want to legislate against it. And the reason we have these very specific doctrines with these very demanding standards like Miller, is to prevent us from yielding to that temptation, and then attempting to justify it by saying, “Well, there is a compelling interest to do it.” The Supreme Court said that is not the way you are allowed to go. You should not feel bad about that as a constitutional constraint because as I said at the beginning, you have the tools already to deal with the problem addressing children, and to deal with material that is already obscene under Miller v. California, which is probably a large amount of material if there was the willpower and the social resources to go after it.

[Prosecuting Hard Core Pornography]

[Question from the committee:]  Are we getting to the point of evidence that a court would be willing to say this [degree of pornography] is enormously harmful; it has met the standard of the society of legislators being able to legislate and address this because of the documentation of its harm in society?

           [Answer from Smolla:] And I think that that is the heart of the matter, and my simple answer is no. So that you will not think that is the shrill, strident, free-speech answer, remember that the constitutional doctrine today, to put it very simply, divides the world between hard-core porn and soft-core. I mean if you just wanted to put it in simple language in terms of what Miller v. California means, that is the division.

           And so if we have a kind of public health epidemic, if we have a new behavioral problem in the way that men and women relate, if there is an addictive quality to this because of the Internet that did not exist before, that does not change the constitutional standard. It may merely mean that we need more public health resources, more prosecutorial resources, more efforts under existing law.

           The heart of my testimony is, most of what is causing the kinds of behavioral dysfunction that these witnesses are talking about, which I think is strong evidence, most of what is causing that could be prosecuted almost certainly under the Miller standard. We are not talking about episodes of “Sex and the City.” We are not talking about the HBO series “Rome,” where there is an explicit sexual scene, but it is obviously a portrayal of history. We are talking for the most part about pretty crude, straightforward hard-core material, that depending on the jurisdiction--and this is the federalism issue, the law is you have to go community by community-- depending on the jurisdiction, almost certainly you could reach it if there was the willpower to put the energy into it.

           I think, Senator, what I am saying is, if this is a public health problem of the nature that we are maybe beginning to perceive, then treat it as one and put the resources into that. Put the resources into counseling, into education and into existing criminal laws, and do not try to stretch the envelope of the First Amendment, where almost certainly, you just know almost certainly, you are going to get tremendous pushback from the courts.

Source: U.S. Senate Committee on the Judiciary, hearing on Why the Government Should Care about Pornography (2005). Notes have been removed (see www.gpoaccess.gov/chearings for complete text).

QUESTIONS

Questions for Review

[Overview]

1. What do biologists tell us about monogamy among animals?

2. What are the possible biological sources of homosexuality in humans?

3. What are the consequentialist and Kantian approaches to sexual morality?

4. What is Aquinas’s natural law view of sex, and what are the two common criticisms of it?

5. What is the means-end view of sex and why does Goldman reject it?

6. What are the two main components in the Defense of Marriage Act (1996)?

7. What is the three-part test for obscenity established in Miller v. California (1973)?

8. What are the criticisms of the three conservative arguments regarding sex?

9. What are the criticisms of the three liberal arguments regarding sex?

[Homosexuality]

10. According to Finnis, what are the higher common goods of conjugal love, and how does that make the married couple a single unit?

11. According to Finnis, how does homosexuality treat the body as an instrument, and what harms does this cause?

12. According to the American Psychological Association, what is sexual orientation, and why is it not merely a characteristic of the individual person?

13. According to the APA, what are some indicators that homosexuality is a normal expression of human sexuality?

14. According to the APA, what are some indicators that committed homosexual relationships are equivalent to heterosexual relationships in essential respects?

[Pornography]

15. According to Paul, what are some of the negative effects of pornography on men?

16. According to Paul, what are some of the negative effects of pornography on relationships?

17. According to Paul, what are some of the negative effects of pornography on children?

18. According to Smolla, what are two limited ways of attacking soft core pornography that is Constitutionally protected under the Miller standard?

19. According to Smolla, what is the rationale behind the Constitutional protection of soft core pornography that does not meet the Miller standard of obscenity?

Questions for Analysis

[Overview]

1. Assume that there is a biological predisposition in some humans towards homosexuality. Does this impact how we should view it morally, and whether we should allow gay marriage? Explain.

2. Assume that there is a biological predisposition for humans against monogamy and to have multiple sexual partners. Does this impact how we should view the morality of premarital sex, adultery, and pornography? Explain.

4. Defend or refute Aquinas’s natural law view of sex.

5. Defend or refute Goldman’s view of sexual freedom.

6. Defend one of the conservative arguments regarding animals against the weakness indicated in the reading.

7. Defend one of the liberal arguments regarding animals against the weakness indicated in the reading.

[Homosexuality]

8. Finnis presents sex in two extremes: it is either the perfect fulfillment of a married couple’s common goods, or it is a degenerate instrumentalization of one’s physical body when not done for procreation (as in homosexual activity). Does he overrate marital sex and underrate non-procreative sex?

9. Suppose that a heterosexual married couple did not want children, and to that end, the husband got a vasectomy and the wife a tubal ligation. On Finnis’s view, would the couple’s subsequent sexual conduct achieve the “common good” of marriage, or would it be merely instrumental and destructive like that of homosexuality? Explain.

10. Finnis thinks that homosexual activity is an act of private gratification. The APA contends that all sexual orientation, including homosexuality, necessarily involves finding fulfilling relationships with other individuals. Who seems more right?

11. According to the APA, homosexuals might experience more stress than heterosexuals because of the stigma associated with homosexuality. Might this be a good reason for them to stop being gay? Explain.

[Pornography]

12. Does Paul exaggerate the harmful effects of pornography? Explain.

13. According to Paul, women are viewing more pornography and are becoming more tolerant of it. If widespread male use of pornography is unavoidable, is this change of attitude among women particularly bad?

14. Smolla argues that Constitutional protection of soft-core pornography (i.e., that which does not meet the Miller standard) is a good thing for society. Discuss his rationale and whether you agree.