From Applied Ethics: A Sourcebook
1. Classic Philosophers on Sexual Morality — Thomas Aquinas, David Hume, Immanuel Kant, Marquis de Sade, John Stuart Mill
2. Supreme Court Cases on Sex — Griswold v. Connecticut; Stanley v. Georgia; Eisenstadt v. Baird; Miller v. California; Lawrence v. Texas; Windsor v. U.S.
3. Is Homosexuality Abnormal: Pro and Contra — John Finnis and The American Psychological Association
4. Pornography: Harmful yet Legal? — Pamela Paul and Rodney A. Smolla
5. Abstinence only Education: Pro and Contra — Stanley Weed and Shelby Knox
CLASSIC PHILOSOPHERS ON SEXUAL MORALITY
Thomas Aquinas, David Hume, Immanuel Kant, Marquis de Sade, John Stuart Mill
Below are discussions by four classic philosophers on the subject of sexual morality. Those by Aquinas and Kant are very conservative, Hume’s view is moderate, while De Sade’s position is libertine to the point of advocating moral anarchy. Thomas Aquinas (1225–1274) was born in what is now central Italy and spent his life as a priest and scholar in the Roman Catholic Church. The selections from him below are from one of his most famous works, Summa Contra Gentiles (that is, “Summary of Christian Doctrine against the Gentiles”). The heart of his argument is grounded in natural law: God implanted within human nature a set of instincts that define our purpose as human beings and establish what is morally right. The instinct to procreate tells us that sexual intercourse is for the purpose of having children, and any sexual activity is morally wrong when it deviates from that purpose. The various parts of our bodies have precise purposes, and, for Aquinas, semen has the clear function of facilitating reproduction. Thus, every non-reproductive emission of semen is sinful if it is done purposefully, and is thereby a sin against nature. As a moral offence, he argues, it is second in seriousness only to murder. Natural law tells us further that sexual activity and procreation need to take place within marriage, since men need to stay with the woman a long time to help raise the child. This holds true even if the woman is rich, since, he argues, moral rules are made for the whole species, not for exceptions. There are also natural reasons for why divorce, polygamy and incest are wrong.
British philosopher David Hume (1711-1776) was born in Edinburgh Scotland and, while at times working as a librarian and civil servant, he eventually became independently wealthy through is publications. The discussion by Hume below is from two of his works, his essay “Of Polygamy and Divorce” (1742) and Treatise of Human Nature (1739-1740). Unlike Aquinas who grounds morality in natural law, Hume argues that many of our moral values, including those regarding sexual behavior, are social creations that we adopt solely because of their usefulness to society. Thus, societies can for different marriage agreements in different social circumstances, all of which can be consistent with the need to propagate and educate offspring. But not all practices will necessarily be useful to society, such as polygamy and voluntary divorce. Thus, society is better served by advocating the value of female chastity. At the same time, though, there is no justification for imposing public shame on unfaithful women or raising young women to repress sexual desires.
German philosopher Immanuel Kant (1724-1804) was born in Königsberg, the capital of what was then East Prussia. He studied at the University of Königsberg, became a lecturer there in 1755, and finally in 1770 was appointed Professor of Logic and Metaphysics. The selection below, from his Lectures on Ethics, maintains that sex brings a union to a marriage when it is founded on true love. However, any other type of sexual activity is degrading since it involves using another person as an object of enjoyment. In particular, masturbation, homosexuality and bestiality are sex crimes against nature because each in their own way involve a sexual act that even an animal wouldn’t engage in: “These crimes make us ashamed that we are humans and thus able to commit them, since even an animal is not capable of sex crimes against nature.”
The Marquis de Sade (1740-1814) was born in an aristocratic French family and educated in a Jesuit Christian school. By his early twenties he gained a reputation for sexual excesses, which only increased as time went on. He was regularly imprisoned, often for sex crimes, and during his incarcerations he penned sexually graphic novels and plays. They frequently depict cruel acts of violence, which gave rise to the term “sadism” as a synonym for cruelty. He says of his writings, “I have imagined everything conceivable in this sort of thing, but I have certainly not done, and certainly never will, all that I have imagined.” Among his plays is Philosophy in the Bedroom (1795), and, in the fifth dialogue of this work, the principal character argues that there is no such thing as an immoral action: murder, theft, and sexual acts of all kinds are morally permissible. In the selections below he makes his case for complete sexual freedom. De Sade’s argument rests on an unconventional version of natural law theory. According to him, nature has given us an endless range of sexual impulses, including desires for countless sexual partners. Natural law, then, permits us to exercise our sexual freedom to the fullest. The logical consequence of this is that prostitution, adultery, incest, and homosexuality are all morally permissible. Further, he argues, monogamous relationships are contrary to nature and thus all people are entitled to sex-on-demand from anyone that strikes our fancy. The civil laws, he maintains, should be established to defend the sexual freedoms that we have through natural law. Be warned: many of his theories presented below are extreme and disturbing.
Born in London, England, John Stuart Mill (1806–1873) was a member of Britain’s Parliament and among that country’s most influential philosophers of the 19th century. A student of Jeremy Bentham, Mill defended the utilitarian theory of ethics. The selections below are from three of his works on the subject of prostitution. In On Liberty (1859) he argues that, while fornication should not be legally restricted, the permissibility of “pimping” is less clear especially when the pimp actively manipulates potential clients against their better judgments. Mill’s most detailed discussions of prostitution surround his efforts to repeal the Contagious Disease Acts, which he felt unfairly target prostitutes. In 1864 the British Parliament passed the Contagious Disease Acts in an effort to reduce venereal diseases among the British military. According to the Act, prostitutes could be arrested in military towns, given tests for venereal disease and, if infected, confined to a lock hospital for up to three months. The prostitutes were detected by plain clothed policemen known as “spy police”, and women who refused tests could also be confined. Those who passed the test would be issued tickets, and only those women were permitted to practice their trade in brothels. In 1866 and 1869 the act was expanded to cover more military towns and increase hospital confinement for up to nine months. The Act was repealed in 1886 after almost a decade of public opposition by organizations and influential people, including Mill. In a Parliamentary cross-examination on the Act, Mill agrees that prostitution does great harm to society and the innocent wives of male clients, and the government is entitled to do something about it. But he contends that it violates women’s liberties since it creates a double standard whereby suspected women were subject to arrest and testing, while their male clients were not. He thus opposes testing unless it is required also of men. He opposes the issuing of tickets to clean prostitutes since it sends the message that the state approves of and licenses prostitution. He opposes lock hospitals unless they treat all diseases, and just venereal disease which would single out prostitutes. One legal remedy that Mill recommends is to permit wives to divorce their husbands pass venereal disease on to them. In a letter to his friend John Russell, Mill argues that the burden should be placed on men to bring their passions in control of their reason, and he suggests that this might be accomplished when women are given equal rights within marriage.
AQUINAS: SEX ONLY FOR REPRODUCTION
Unnaturalness of Fornication (3.122)
So appears the foolishness of those who say that simple fornication is not a sin. For they say the following. Given a woman free from a husband, and under no control of father or any other person, if anyone approaches her with her consent, he does her no wrong, because she is pleased so to act, and has the disposal of her own person: nor does he do any wrong to another, for she is under no one’s control: therefore there appears no sin. Nor does it seem to be a sufficient answer to say that she wrongs God, for God is not offended by us except by what we do against our own good (Chap. 121): but it does not appear that this conduct is against man’s good: hence no wrong seems to be done to God thereby. In like manner also it does not appear a sufficient answer, that wrong is thereby done to one’s neighbor, who is scandalized: for sometimes a neighbor is scandalized by what of itself is not a sin, in which case the sin is only incidental: but the question is not whether fornication is a sin incidentally, but whether it is a sin ordinarily and in itself.
We must seek a solution to the above arguments. It has been said (Chap. 16.64) that God has care of everything according to that which is good for it. Now it is good for everything to gain its end, and evil for it to be diverted from its proper end. But as it is with the whole so also is it with the parts; our position then should be that every part of man and every act of his may attain its proper end. Now though semen is superfluous for the preservation of the individual, yet it is necessary to him for the propagation of the species. Other excretions, such as excrement, urine, sweat, and the like, are needful for no further purpose: hence the only good that comes to man regarding them is by their removal from the body. But that is not the object in the emission of semen, but rather the profit of generation, to which the union of the sexes is directed. Further, the generation of man would be useless unless appropriate nurturing followed, without which the offspring generated could not survive. The emission of semen then ought to be directed so that both the proper generation may result and the education of the offspring be secured.
Hence it is clear that every emission of 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. That is, it is a sin when generation is impossible in itself as is the case in every emission of semen without the natural union of male and female. For this reason such sins are called “sins against nature.” But if it is by accident that generation cannot follow from the emission of 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.
Naturalness of Marriage
Likewise it must be against the good of man for semen to be emitted under conditions which, allowing generation to result, nevertheless prevent the proper education of the offspring. We observe that in those animals, dogs for instance, in which the female by herself suffices for the rearing of the offspring, the male and female stay no time together after the performance of the sexual act. But with all animals in which the female by herself does not suffice for the rearing of the offspring, male and female dwell together after the sexual act so long as is necessary for the rearing and training of the offspring. This appears in birds, whose young are incapable of finding their own food immediately when they are hatched: for since the bird does not suckle her young with milk, according to the provision made by nature in quadrupeds, but has to seek food abroad for her young, and therefore keep them warm in the period of feeding, the female could not do this duty all alone by herself: hence divine providence has put in the male a natural instinct or standing by the female for the rearing of the brood. Now in the human species the female is clearly insufficient of herself for the rearing of the offspring, since the need of human life makes many demands, which cannot be met by one parent alone. Hence the fitness of human life requires man to stand by woman after the sexual act is done, and not to go off at once and form connections with anyone he meets, as is the way with fornicators. Nor is this reasoning evaded by the fact of some particular woman having wealth and power enough to nourish her offspring all by herself: for in human acts the line of natural rightness is not drawn to suit the accidental variety of the individual, but the properties common to the whole species.
A further consideration is, that in the human species the young need not only bodily nutrition, as animals do, but also the training of the soul. Other animals have their natural instincts to provide for themselves: but man lives by reason, which takes the experience of a long time to arrive at discretion. Hence children need instruction by the confirmed experience of their parents: nor are they capable of such instruction as soon as they are born, but after a long time, the time in fact taken to arrive at the years of discretion. For this instruction again a long time is needed; and then moreover, because of the assaults of passion, whereby the judgment of prudence is thwarted, there is need not of instruction only, but also of repression. For this purpose the woman by herself is not competent, but at this point especially there is required the accompaniment of the man, in whom there is at once reason more perfect to instruct, and force more potent to chastise. Therefore in the human race the advancement of the young in good must last, not for a short time, as in birds, but for a long period of life. Hence, whereas it is necessary in all animals for the male to stand by the female for such time as the father’s accompaniment is required for bringing up of the offspring, it is natural for man to be tied to the society of one fixed woman for a long period, not a short one. This social tie we call marriage. Marriage then is natural to man, and an irregular connection outside of marriage is contrary to the good of man; and therefore fornication must be sinful.
Nor yet should it be counted a slight sin for one to procure the emission of semen irrespective of the proper purpose of generation and rearing of issue, on the pretence that it is a slight sin, or no sin at all, to apply any part of one’s body to another use than that to which it is naturally ordained—as if, for example, 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 irregular applications as those mentioned the good of man is not greatly injured: but the irregular emission of semen is repugnant to the good of nature, which is the conservation of the species. Hence, after the sin of murder, whereby a human nature already in actual existence is destroyed, this sort of sin seem to hold the second place, whereby the generation of human nature is precluded. . . .
The above assertions are confirmed by divine authority. The unlawfulness of any emission of semen, upon which offspring cannot be consequent, is evident from such texts as these: Thou shalt not lie with mankind as with womankind: Thou shalt not lie with any beast (Levit. 18.22-23): Nor the effeminate, nor sodomites, shall possess the kingdom of God (1 Cor. 6.10). The unlawfulness of fornication and of all connection with any other woman than one’s own wife is clear from Deut. 23.17: There shall be no whore among the daughters of Israel, nor whoremonger among the sons of Israel: Keep thyself from all fornication, and beyond thine own wife suffer not the charge of knowing another (Job. 4.13): Fly fornication (1 Cor. 6.18).
Hereby is refuted the error of those who say that there is no more sin in the emission of semen than in the ejection of other superfluous products from the body.
Against Divorce (3.123)
Looking at the matter rightly, one must see that the above mentioned reasons not only support a long duration for that natural human partnership of male and female, which we call marriage, but further imply that the partnership ought to be lifelong.
1. Property is a means to the preservation of human life. And because natural life cannot be preserved in one and the same person of the father living on for all time, nature arranges for its preservation by the son succeeding his father in likeness of species. For this reason, it is appropriate that the son should succeed his father in his property. It is natural therefore that the father’s interest in his son should continue to the end of his life, and that father and mother should dwell together to the end.
2. Woman is taken into partnership with man for the need of childbearing: therefore when the fertility and beauty of woman ceases, there is a prohibition against her being taken up by another man. If then a man, taking a woman to wife in the time of her youth, when beauty and fertility remain with her, could send her away when she was advanced in years, he would do the woman harm, contrary to natural equity.
3. It is manifestly absurd for the woman to be able to send away the man, seeing that woman is naturally subject to the rule of man, and it is not in the power of a subject to run away from control. It being then against the order of nature for the woman to be allowed to desert the man, if the man were allowed to desert the woman, the partnership of man and woman would not be on fair terms, but would be a sort of slavery on the woman’s side.
4. Men show a natural anxiety to be sure of their own offspring; and whatever stands in the way of that assurance runs counter to the natural instinct of the race. But if the man could send away the woman, or the woman the man, and form a connection with another, certainty as to parentage would be difficult, when a woman had intercourse first with one man and then with another. . . .
Against Polygamy (3.124)
One general reason holds for all animals, which is this, that every animal desires free enjoyment of the pleasure of sexual union as of eating: which freedom is impeded by there being either several males to one female, or the other way about: and therefore animals fight alike for food and for sexual jealousy. But in men there is a special reason, inasmuch as man naturally desires to be sure of his own offspring. But here a difference comes in. Both of the above mentioned reasons hold for the case of the cohabitation of one female with several males: but the second reason does not hold against the cohabitation of one male with several females,—I mean certainty in point of parentage is not in that case prevented. But the first reason makes against it: for as the free enjoyment of the female is taken from the male, if the female has another partner, so the same free enjoyment is taken from the female, if the male has more than one partner.
2. In every species of animal in which the father takes any interest in the offspring, one male keeps company with one female only, as in all birds that rear their young in common: for one male could not avail for several females as a helper in the rearing of their offspring: whereas in animals in which the males take no interest in the offspring, one male consorts with several females promiscuously, and the female with several males, as appears in dogs, poultry, and the like. But the male’s interest in the offspring is greater in the human species than in any other.
3 and 4. The reason why a wife is not allowed more than one husband at a time is because otherwise paternity would be uncertain. If then while the wife has one husband only, the husband has more than one wife, there will not be a friendship of equality on both sides, friendship consisting in a certain equality. There will not be the friendship of a free man with a free woman, but a sort of friendship of a slave with her master. The husband might well be allowed a plurality of wives, if the understanding were allowable, that the friendship of each with him was not to be that of a free woman with a free man but of a slave with her master. And this is borne out by experience: for among men that keep many wives the wives are counted as menials.
5. From one man having several wives there arises domestic discord, as experience shows.
Hence it is said: They shall be two in one flesh (Gen. 2.24).
Against Incest (3.125)
Since in marriage there is a union of different persons, those persons who ought to consider themselves as one because of their being of one stock, are properly excluded from intermarrying, that they may love one another more ardently on the mere ground of their common origin.
2. Since the intercourse of man and wife carries with it a certain natural shame, those persons should be prevented from such intercourse who owe one another a mutual reverence on account of the tie of blood. And this is the reason touched on in Leviticus 18.
3. Excessive indulgence in sexual pleasures makes for the corruption of good manners: for such pleasures of all others most absorb the mind and hinder the right exercise of reason. But such excessive indulgence would result, if the intercourse of the sexes were allowed among persons who must necessarily dwell under the same roof, where the occasion of such intercourse could not be withdrawn.
5. In human society the widening of friendships is of the first importance. That is done by the marriage tie being formed with strangers. . . .
HUME: THE USEFULNESS OF CONVENTIONAL SEXUAL MORALITY
Varieties of Marriage Conventions (“Of Chastity and Modesty”)
As marriage is an engagement entered into by mutual consent, and has for its end the propagation of the species, it is evident that it must be susceptible of all the variety of conditions which consent establishes, provided they be not contrary to this end.
A man, in conjoining himself to a woman, is bound to her according to the terms of his engagement: in begetting children, he is bound, by all the ties of nature and humanity, to provide for their subsistence and education. When he has performed these two parts of duty, no one can reproach him with injustice or injury. And as the terms of his engagement, as well as the methods of subsisting his offspring, may be various, it is mere superstition to imagine, that marriage can be entirely uniform, and will admit only of one mode or form. Did not human laws restrain the natural liberty of men, every particular marriage would be as different as contracts or bargains of any other kind or species.
As circumstances vary, and the laws propose different advantages, we find, that, in different times and places, they impose different conditions on this important contract. In Tonquin, it is usual for the sailors, when the ship comes into harbor, to marry for the season; and, notwithstanding this precarious engagement, they are assured, it is said, of the strictest fidelity to their bed, as well as in the whole management of their affairs, from those temporary spouses.
I cannot, at present, recollect my authorities; but I have somewhere read, that the republic of Athens, having lost many of its citizens by war and pestilence, allowed every man to marry two wives, in order the sooner to repair the waste which had been made by these calamities. The poet Euripides happened to be coupled to two noisy vixens, who so plagued him with their jealousies and quarrels, that he became ever after a professed woman-hater; and is the only theatrical writer, perhaps the only poet, that ever entertained an aversion to the sex.
In that agreeable romance called the History of the Sevarambians, where a great many men and a few women are supposed to be shipwrecked on a desert coast, the captain of the troop, in order to obviate those endless quarrels which arose, regulates their marriages after the following manner: He takes a handsome female to himself alone; assigns one to every couple of inferior officers, and to five of the lowest rank he gives one wife in common.
The ancient Britons had a singular kind of marriage, to be met with among no other people. Any number of them, as ten or a dozen, joined in a society together, which was perhaps requisite for mutual defense in those barbarous times. In order to link this society the closer, they took an equal number of wives in common; and whatever children were born, were reputed to belong to all of them, and were accordingly provided for by the whole community.
Among the inferior creatures [i.e., animals], nature herself, being the supreme legislator, prescribes all the laws which regulate their marriages, and varies those laws according to the different circumstances of the creature. Where she furnishes with ease, food and defense to the new-born animal, the present embrace terminates the marriage; and the care of the offspring is committed entirely to the female. Where the food is of more difficult purchase, the marriage continues for one season, till the common progeny can provide for itself; and then the union immediately dissolves, and leaves each of the parties free to enter into a new engagement at the ensuing season. But nature, having endowed man with reason, has not so exactly regulated every article of his marriage contract, but has left him to adjust them, by his own prudence, according to his particular circumstances and situation. Municipal laws are a supply to the wisdom of each individual; and, at the same time, by restraining the natural liberty of men, make private interest submit to the interest of the public. All regulations, therefore, on this head, are equally lawful and equally conformable to the principles of nature; though they are not all equally convenient, or equally useful to society. The laws may allow of polygamy, as among the Eastern nations; or of voluntary divorces, as among the Greeks and Romans; or they may confine one man to one woman during the whole course of their lives, as among the modern Europeans. It may not be disagreeable to consider the advantages and disadvantages which result from each of these institutions.
The advocates for polygamy may recommend it as the only effectual remedy for the disorders of love, and the only expedient for freeing men from that slavery to the females, which the natural violence of our passions has imposed upon us. By this means alone can we regain our right of sovereignty; and, sating our appetite, reestablish the authority of reason in our minds, and, of consequence, our own authority in our families. Man, like a weak sovereign, being unable to support himself against the wiles and intrigues of his subjects, must play one faction against another, and become absolute by the mutual jealousy of the females. To divide and to govern, is an universal maxim; and, by neglecting it, the Europeans undergo a more grievous and a more ignominious slavery than the Turks or Persians, who are subjected indeed to a sovereign that lies at a distance from them, but in their domestic affairs rule with uncontrollable sway.
On the other hand, it may be urged with better reason, that this sovereignty of the male is a real usurpation, and destroys that nearness of rank, not to say equality, which nature has established between the sexes. We are, by nature, their lovers, their friends, their patrons: would we willingly exchange such endearing appellations for the barbarous title of master and tyrant?
In what capacity shall we gain by this inhuman proceeding? As lovers, or as husbands? The lover is totally annihilated; and courtship, the most agreeable scene in life, can no longer have place where women have not the free disposal of themselves, but are bought and sold, like the meanest animal. The husband is as little a gainer, having found the admirable secret of extinguishing every part of love, except its jealousy. No rose without its thorn; but he must be a foolish wretch indeed, that throws away the rose and preserves only the thorn.
But the Asiatic manners are as destructive to friendship as to love. Jealousy excludes men from all intimacies and familiarities with each other. No one dares bring his friend to his house or table, lest he bring a lover to his numerous wives. Hence, all over the East, each family is as much separate from another, as if they were so many distinct kingdoms. No wonder then that Solomon, living like an Eastern prince, with his seven hundred wives and three hundred concubines, without one friend, could write so pathetically concerning the vanity of the world. Had he tried the secret of one wife or mistress, a few friends, and a great many companions, he might have found life somewhat more agreeable. Destroy love and friendship, what remains in the world worth accepting?
The bad education of children, especially children of condition, is another unavoidable consequence of these Eastern institutions. Those who pass the early part of life among slaves, are only qualified to be, themselves, slaves and tyrants; and in every future intercourse, either with their inferiors or superiors, are apt to forget the natural equality of mankind. What attention, too, can it be supposed a parent, whose seraglio affords him fifty sons, will give to instilling principles of morality or science into a progeny, with whom he himself is scarcely acquainted, and whom he loves with so divided an affection? Barbarism therefore appears, from reason as well as experience, to be the inseparable attendant of polygamy.
To render polygamy more odious, I need not recount the frightful effects of jealousy, and the constraint in which it holds the fair sex all over the East. In those countries, men are not allowed to have any commerce with the females, not even physicians, when sickness may be supposed to have extinguished all wanton passions in the bosoms of the fair, and, at the same time, has rendered them unfit objects of desire. Tournefort tells us, that when he was brought into the Grand Seignior's seraglio as a physician, he was not a little surprised, in looking along a gallery, to see a great number of naked arms standing out from the sides of the room. He could not imagine what this could mean, till he was told that those arms belonged to bodies which he must cure, without knowing any more about them than what he could learn from the arms. He was not allowed to ask a question of the patient, or even of her attendants, lest he might find it necessary to inquire concerning circumstances which the delicacy of the seraglio allows not to be revealed. Hence physicians in the East pretend to know all diseases from the pulse, as our quacks in Europe undertake to cure a person merely from seeing his water. I suppose, had Monsieur Tournefort been of this latter kind, he would not, in Constantinople, have been allowed by the jealous Turks to be furnished with materials requisite for exercising his art.
In another country, where polygamy is also allowed, they render their wives cripples, and make their feet of no use to them, in order to confine them to their own houses. . . .
Against Voluntary Divorce
Having rejected polygamy, and matched one man with one woman, let us now consider what duration we shall assign to their union, and whether we shall admit of those voluntary divorces which were customary among the Greeks and Romans. Those who would defend this practice, may employ the following reasons.
How often does disgust and aversion arise after marriage, from the most trivial accidents, or from an incompatibility of humor; where time, instead of curing the wounds proceeding from mutual injuries, festers them every day the more, by new quarrels and reproaches? Let us separate hearts which were not made to associate together. Either of them may, perhaps, find another for which it is better fitted. At least, nothing can be more cruel than to preserve, by violence, an union which, at first, was made by mutual love, and is now, in effect, dissolved by mutual hatred.
But the liberty of divorces is not only a cure to hatred and domestic quarrels; it is also an admirable preservative against them, and the only secret for keeping alive that love which first united the married couple. The heart of man delights in liberty: the very image of constraint is grievous to it. When you would confine it by violence, to what would otherwise have been its choice, the inclination immediately changes, and desire is turned into aversion. If the public interest will not allow us to enjoy in polygamy that variety which is so agreeable in love: at least, deprive us not of that liberty which is so essentially requisite. In vain you tell me, that I had my choice of the person with whom I would conjoin myself. I had my choice, it is true, of my prison; but this is but a small comfort, since it must still be a prison.
Such are the arguments which may be urged in favor of divorces: but there seem to be these three Unanswerable objections against them. First, what must become of the children upon the separation of the parents? Must they be committed to the care of a step-mother, and, instead of the fond attention and concern of a parent, feel all the indifference or hatred of a stranger or an enemy? These inconveniences are sufficiently felt, where nature has made the divorce by the doom inevitable to all mortals: and shall we seek to multiply those inconveniences by multiplying divorces, and putting it in the power of parents, upon every caprice, to render their posterity miserable?
Secondly, if it be true, on the one hand, that the heart of man naturally delights in liberty, and hates everything to which it is confined; it is also true, on the other, that the heart of man naturally submits to necessity, and soon loses an inclination, when there appears an absolute impossibility of gratifying it. . . .
But friendship is a calm and sedate affection, conducted by reason and cemented by habit; springing from long acquaintance and mutual obligations; without jealousies or fears, and without those feverish fits of heat and cold, which cause such an agreeable torment in the amorous passion. So sober an affection, therefore, as friendship, rather thrives under constraint, and never rises to such a height, as when any strong interest or necessity binds two persons together, and gives them some common object of pursuit. We need not, therefore, be afraid of drawing the marriage knot, which chiefly subsists by friendship, the closest possible. The amity between the persons, where it is solid and sincere, will rather gain by it: and where it is wavering and uncertain, that is the best expedient for fixing it. How many frivolous quarrels and disgusts are there, which people of common prudence endeavor to forget, when they lie under a necessity of passing their lives together; but which would soon be inflamed into the most deadly hatred, were they pursued to the utmost, under the prospect of an easy separation?
In the third place, we must consider, that nothing is more dangerous than to unite two persons so closely in all their interests and concerns, as man and wife, without rendering the union entire and total. The least possibility of a separate interest must be the source of endless quarrels and suspicions. The wife, not secure of her establishment, will still be driving some separate end or project; and the husband's selfishness, being accompanied with more power, may be still more dangerous. . . .
The exclusion of polygamy and divorces sufficiently recommends our present European practice with regard to marriage.
Shaming Women for Infidelity not Justified (Treatise)
Whoever considers the length and feebleness of human infancy, with the concern which both sexes naturally have for their offspring, will easily perceive, that there must be an union of male and female for the education of the young, and that this union must be of considerable duration. But in order to induce the men to impose on themselves this restraint, and undergo cheerfully all the fatigues and expenses, to which it subjects them, they must believe, that the children are their own, and that their natural instinct is not directed to a wrong object, when they give a loose to love and tenderness. Now if we examine the structure of the human body, we shall find, that this security is very difficult to be attained on our part; and that since, in the copulation of the sexes, the principle of generation goes from the man to the woman, an error may easily take place on the side of the former, though it be utterly impossible with regard to the latter. From this trivial and anatomical observation is derived that vast difference betwixt the education and duties of the two sexes.
Were a philosopher to examine the matter a priori, he would reason after the following manner. Men are induced to labor for the maintenance and education of their children, by the persuasion that they are really their own; and therefore it is reasonable, and even necessary, to give them some security in this particular. This security cannot consist entirely in the imposing of severe punishments on any transgressions of conjugal fidelity on the part of the wife; since these public punishments cannot be inflicted without legal proof, which it is difficult to meet with in this subject. What restraint, therefore, shall we impose on women, in order to counter-balance so strong a temptation as they have to infidelity? There seems to be no restraint possible, but in the punishment of bad fame or reputation; a punishment, which has a mighty influence on the human mind, and at the same time is inflicted by the world upon surmises, and conjectures, and proofs, that would never be received in any court of judicature. In order, therefore, to impose a due restraint on the female sex, we must attach a peculiar degree of shame to their infidelity, above what arises merely from its injustice, and must bestow proportionable praises on their chastity.
But though this be a very strong motive to fidelity, our philosopher would quickly discover, that it would not alone be sufficient to that purpose. All human creatures, especially of the female sex, are apt to over-look remote motives in favor of any present temptation: The temptation is here the strongest imaginable: Its approaches are insensible and seducing: And a woman easily finds, or flatters herself she shall find, certain means of securing her reputation, and preventing all the pernicious consequences of her pleasures. It is necessary, therefore, that, beside the infamy attending such licenses, there should be some preceding backwardness or dread, which may prevent their first approaches, and may give the female sex a repugnance to all expressions, and postures, and liberties, that have an immediate relation to that enjoyment.
Such would be the reasonings of our speculative philosopher: But I am persuaded, that if he had not a perfect knowledge of human nature, he would be apt to regard them as mere chimerical speculations, and would consider the infamy attending infidelity, and backwardness to all its approaches, as principles that were rather to be wished than hoped for in the world. For what means, would he say, of persuading mankind, that the transgressions of conjugal duty are more infamous than any other kind of injustice, when it is evident they are more excusable, upon account of the greatness of the temptation? And what possibility of giving a backwardness to the approaches of a pleasure, to which nature has inspired so strong a propensity; and a propensity that it is absolutely necessary in the end to comply with, for the support of the species? . . .
And though all these maxims [regarding chastity] have a plain reference to generation, yet women past child-bearing have no more privilege in this respect, than those who are in the flower of their youth and beauty. Men have undoubtedly an implicit notion, that all those ideas of modesty and decency have a regard to generation . . . yet the general rule carries us beyond the original principle, and makes us extend the notions of modesty over the whole sex, from their earliest infancy to their extremist old-age and infirmity. . . .
As to the obligations which the male sex lie under, with regard to chastity, we may observe, that according to the general notions of the world, they bear nearly the same proportion to the obligations of women, as the obligations of the law of nations [i.e., flexible civil laws] do to those of the law of nature [i.e., inflexible natural laws]. It is contrary to the interest of civil society, that men should have an entire liberty of indulging their appetites in venereal enjoyment: But as this interest is weaker [in men] than in the case of the female sex, the moral obligation, arising from it, must be proportionably weaker [for men than for women]. And to prove this we need only appeal to the practice and sentiments of all nations and ages.
KANT: THE IMMORALITY OF PURE SEXUAL DESIRE
Sexual Desire vs. True Human Love
Humans have an inclination that is aimed at other people as objects of enjoyment, and not just towards the work and services of others that we might enjoy. We have no inclination to enjoy the flesh of another human being—and where it exists, it is more like a war of revenge than an inclination. But there remains an inclination in humans, which we call an appetite, that results in the enjoyment of other human beings. This is sexual desire. I can surely make use of another person as an instrument for my services. I can use his hands and his feet for his service, even all of his powers—although I cannot use a man as I intend, except of his free will. But we do not find a person as an object of enjoyment by another except with sexual desire. There is something behind this that can be called a sixth sense, by which someone is an object of appetite for another.
It is said that a man loves someone if he has a passion for her. When we view such love as genuine, and the person of genuine love loves someone, it must be with no distinction regarding the other person. She may be old or young, and so he can love her from true human love. But if he loves merely from sexual desire, this cannot be true love, but only an appetite. Love, as human love, is the love of benevolence, kindness, the promotion of happiness and joy for the happiness of others. But now it seems that people who merely sexually desire someone have none of this true human love towards the person; he is not concerned about her happiness, and even brings her misfortune just to satisfy his inclinations and appetites. If they love from sexual desire, they will make the person the object of their appetites; but as soon as they have their appetites satisfied, they throw the person away, just as one throws away a lemon once you have taken the juice out of it.
Sexual love can indeed be combined with human love, and then it will also have human love with it. But if it is taken alone, it is nothing more than an appetite. In this way it is a degradation of human nature. As soon as a person is an object of appetite of others, all motives of moral relationship fade away because, as an object of appetite of another, the person becomes a thing, and may be used as a thing to satisfy the appetite of others. There is no other case than this, where a person was destined by nature to be an object of enjoyment of others, and sexual desire is the basis of it. This is the reason why people are ashamed to have these desires, and why everyone who pretended to be a strict moralist, and regarded as a saint, has tried to suppress and dispense with this inclination. But a man who lacked such desires would be an imperfect person, since one would think that he lacked the organs to do such; he would then be an imperfection, rather than a man. Though a pretension, people have sought to refrain from such inclinations, because they degrade humanity.
Because sexual desire is not an inclination that a person has for another as a human, but an inclination for another’s sex, this inclination is a principle of degradation of humanity, by preferring one sex over the other, and thereby dishonoring that sex through the satisfaction of that inclination. The inclination he has for the woman is not towards her as a person, but because she is a woman; it matters not that she is a human, but only that she is an object of his sexual desires. Humanity is devalued. It follows that every man and every woman will try to make their sexuality more stimulating, rather than their humanity, and direct all actions and appetites towards sex alone. Thus, you will sacrifice humanity to sex. So if a man wants to satisfy his appetites, and a woman hers, they arouse each other, and their inclinations move towards each other, with no inclination at all towards humanity, but towards sex, and thus disgrace humanity. Humanity, then, becomes an instrument to satisfy their desires and inclinations, which will, however, dishonor it by approximating it to animal nature. Sexual desire, then, puts humanity in danger of being like animals.
Sex as Union within Marriage
But since a person has this inclination by nature, the question arises: To what extent is someone entitled to exercise his sexual desires without violation to humanity? To what extent can we allow one person to meet his desire for another person of the opposite sex? Can people sell, lease or contractually permit the use of their sexual faculties in various matters? All philosophers view sexual inclination merely in terms of its harmfulness and the disorder it brings to the person’s body or the community; they believe that nothing in the act itself is contemptible. But if this was the case, if there was no inner atrocity and violation of morality in the use of one’s sexual preferences, then a person could act on his inclinations in every possible way if he could avoid all such harm. For what is forbidden only as a rule of prudence is only conditionally forbidden; the action, then, would be good in itself, and only harmful under some circumstances. But there is something despicable in the acts themselves, which runs contrary to morality. . . .
Marriage is the only condition in which a person can make use of his sexual inclinations. If a person devotes to another, he is dedicated to her not only sexually, but to her whole person, and these cannot be separated. Now, if a person gives to the other his very being, his happiness, his misfortunes, and all his circumstances that he is entitled to, yet the other person does not return to him the same right to her person and such, then there is an inequality. But if I give away my entire person to another, and win back the entire person of another, then I win myself back and have thereby reoccupied myself. For I have given myself to the other as property, but I’ll take back the other as my property, so I win myself again, because I win the person to whom I gave myself as property. Accordingly, both people make up a unity of will. There will be no individual happiness or unhappiness, pleasure or displeasure to endure, since the other will take part in these. Therefore, sexual inclinations make a union among people, and in that union alone is the use of sexual inclinations possible. This condition, in which it is possible only under marriage to make use of one’s sexual inclinations, is a moral condition.
Sex Crimes against Nature: Masturbation, Homosexuality, Bestiality
Sex crimes violate the duty to oneself because they run contrary to the ends of humanity. Sex crimes involve the misuse of sexual inclinations. Any use of the sexual inclinations, except under the condition of marriage, is an abuse of the same, and so is a sex crime. . . .
Sex crimes against nature have to do with the use of sexual inclinations which are against one’s natural instinct and animal nature. Masturbation is the first among these, and is the abuse of sexual organs without any object, since the object of one’s sexual inclination is completely absent, and the use of one’s sexual organs is still practiced even without an object. This obviously runs contrary to the purposes of humanity and is even contrary to animal nature. Through this a man casts aside his own humanity and is beneath an animal. A second sex crime against nature is intercourse between the same genders, where there is indeed an object of one’s sexual inclinations, but it changes so that sexual intercourse is homosexual, not heterosexual, such as if a woman satisfies her inclinations with a woman, or a man with a man. This runs contrary to the ends of human nature, since the purpose of this inclination in human nature is the conservation of the species without throwing away his person. However, with this we do not preserve the species at all (which is still possible at least with sex crimes in accordance with nature), and again one throws away his person, thereby lowering himself beneath the animals and disgracing humanity. The third sex crime against nature is when the object of affection, while a different gender, is not a human. This includes, for instance, sodomy, intercourse with the animals. This also runs contrary to the ends of humanity and is repugnant to our natural instinct. One thereby lowers humanity beneath the animal, since no animal strays from its own species.
All sex crimes against nature degrade humanity beneath the animals and make one unworthy of humankind. The person does not deserve to be a person. This is the lowest and most reprehensible violation that a person can commit with respect to duties to oneself. Suicide is certainly the most awful thing that a person can commit, however it is not so base and low as sex crimes against nature. These are the most contemptuous things that a person can do. That is why sex crimes against nature are nameless, because even the fact of uttering them will cause revulsion, which is not so of suicide. Everyone avoids talking about these vices, and every teacher hesitates even when having a very good intention of warning his students against them. . . . These crimes make us ashamed that we are humans and thus able to commit them, since even an animal is not capable of sex crimes against nature.
DE SADE: COMPLETE SEXUAL FREEDOM
Women Submitting to Any Man’s Desires
. . . I will try to convince you that the prostitution of so-called honest women is not more dangerous than that of men. Not only may we submit women to the lusts exerted in the houses which I establish, but we must even set some up for them, where their whims and the needs for their temperament (which burn differently than ours) can in the same way be satisfied with them all.
First, by what right do you claim that women must be excluded from the blind submission to men’s impulses that nature prescribes? Second, by which other right do you claim to submit them to a self-restraint that is impossible for their physical makeup and absolutely useless to their honor?
I will answer the first of these questions, and then the other. It is certain that, in the state of nature, women are born vulguivaguous, that is, enjoying the advantages of the other female animals and, like them and without any exception, 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. Here, then, are satisfied the first two feelings which I have just mentioned. More often still the woman was forcefully removed, and so one became attached to her. Here is the other motive for action and, in all the cases, injustice.
An act of possession can never be exerted on a free being; it is as unjust to have a woman exclusively as it is to have slaves. All men were born free and are equal in rights: never let us lose sight of these principles. Accordingly, the right can never be legitimately granted to one sex to claim the other exclusively, and one of these sexes or classes can never possess the other arbitrarily. Even in the purity of natural laws, a woman cannot appeal to the love that she has for another as a reason for refusing another who desires her. Her reasoning would involve exclusion, and no man can be excluded from the possession of a woman, since it is clear that she belongs to all men absolutely. The act of possession can be exerted only on a building or an animal, but never on an individual who resembles us, and any supposed bonds connecting a woman with a man are as unjust as they are illusory.
If we receive from nature the right to express our desires arbitrarily with all women, it then becomes undeniable that we have the right to compel her to submit to our wishes – not exclusively, though, but temporarily – otherwise I would contradict myself. It is undeniable that we have the right to establish laws which force her to yield to the fires of he who desires her. Violence itself is one of the effects of this right, and we can employ it legally. Indeed, hasn’t nature proven that we have this right by distinguishing us with the power necessary to subject women to our desires?
Women futilely defend themselves by speaking of their modesty or attachment to other men. These illusory efforts are groundless. We saw earlier how modesty is an invented and contemptible feeling. Love, which we can call the madness of the heart, does not legitimate their fidelity. Love satisfies only two individuals, the lover and the beloved, and it cannot serve the happiness of others. Women were given to us for the happiness of all, and not for an egoistic and privileged happiness. All men thus have an equal right of pleasure with all women. Thus, according to natural law, no man can claim a unique and individual right over a woman. The law will oblige them to be prostitutes as long as we want it, at the houses of vice which I’ve mentioned; the law will force them if they refuse, and punish them if they resist. This law is the most equitable, and no legitimate reason or right can be claimed against it.
If the laws which we establish are just, a man who wants to enjoy any woman or girl will be able to summon her to one of the houses about which I spoke. There, within this temple of Venus, under the safeguard of matrons, she will be delivered to him. Humbly and submissively, she will satisfy all the whims that will occur to him, however bizarre or irregular they may be, because all extremes are in nature and acknowledged by it. . . .
Men Submitting to Any Woman’s Desires
If we admit, as we have just done, that all women must be subjected to our desires, undoubtedly we can allow them in the same way to satisfy all theirs amply. On this issue, our laws must provide for their fiery temperament. It is absurd to locate both their honor and their virtue in the unnatural force that they exert to resist the inclinations that they possess more strongly than men. This injustice of our manners is all the more blatant when we try to weaken them through seduction, yet at the same time punish them when they yield to our efforts to make them fall. It seems to me that all the nonsense of our manners is engraved in this outrageous paradox, and this short discussion should make us feel the great need to change our manners for consistency.
Thus I say that women, having received inclinations much more violent than ours with the pleasures of lust, will be able to completely devote themselves to it, absolutely released from all the bonds of virginity, of all the false prejudices of decency, and be absolutely restored to the state of nature. I want the laws to enable them to be devoted to as many men as they will have. I want them to have the pleasure of all the sexes in all the parts of their bodies, as is allowed in men. And, under the special condition according to which they submit themselves to all those who wish, it is necessary that they have freedom to also enjoy all those which they will believe worthy to satisfy them.
Children of the Fatherland
What, I ask, are the dangers of this freedom? Children who won’t have fathers? Indeed! What does that matter in a republic where all the individuals in the country are born of the fatherland? How much more will they appreciate their country, knowing only it, and will know from birth that it is only of their country that they must all expect things! Don’t imagine that you can make good republicans as long as you isolate children within their families, when instead they should belong only to the republic. When we give affection only to some individuals, which should instead be divided among all their brothers, they inevitably adopt dangerous prejudices. Their opinions and ideas will be insulated and particularized, and it will become absolutely impossible for them to have all the virtues of a statesman. Devoting their hearts entirely to those who gave birth to them, they will not have any more devotion in their hearts for the things that make them live and understand, as if these benefits were less important than the first! The best argument for separating children from their families is seen in the great disadvantage that occurs when, imbibing in their families, children frequently have interests quite different from those of the fatherland. Aren’t they naturally weaned by the method that I propose? For, by completely destroying all the bonds of marriage, as fruits of women’s pleasure, there are only born children who are forbidden to have knowledge of their father. And with that don’t we destroy the means of having children that belong to only one family, rather than being, as they should be, simply children of the fatherland?
So, there will be houses intended for the indulgence of women and, like those of men, they will be under the protection of the government. There, individuals of both sexes will be provided with anything they wish, and the more they visit these houses, the greater they will be esteemed. There is nothing so barbaric and ridiculous than to have linked the honor and virtue of women to their resistance towards desires that they received from nature – desires which continually inflame those who so cruelly blame them. From tender ages, girls will be released from parental bonds and have nothing more to preserve for marriage (completely abolished by the wise laws which I recommend). Superior to the prejudice formerly shackling her sex, she will be able to devote herself within these created houses to all that her makeup allows. She will be received there with respect, satisfied in abundance and, when returning to society, she will speak publicly about the pleasures she tasted, just as she speaks now of a ball or promenade. O charming sex, you will be free. Like men, you will enjoy all the pleasures that nature makes your duty. You will not commit yourselves to any. Does the divine part of humanity have to be shackled in irons of the other? Ah! Break those irons as nature wants you to do. Have nothing for a bridle than your inclinations, no other laws than your desires, no other morals than that of nature. Do not languish longer in these cruel prejudices which faded your charms and held captive the divine impulses of your heart. You are free like us, and the battleground of Venus’s favor is open for you as it is to us. Do not fear any more absurd criticism. Rigidity and superstition are destroyed. We will no longer see you blushing because of your charming delinquencies. Crowned myrtle and roses, the respect which we will have for you will be based only on your excessiveness.
What has just been said should undoubtedly spare us from examining adultery. Nevertheless, let us glance on that subject, even though it won’t be prohibited by the laws which I hope to establish. How ridiculous it was to regard it as criminal in our old institutions! If anything in the world is absurd, it surely is the permanence of the marital bonds. It seems to me that we need to feel the heaviness of those bonds in order to stop viewing efforts to reduce them as criminal. Nature, as I said a few moments ago, has given women a more burning desire and greater sensitivity than was given to men. Undoubtedly, the burden of a permanent marriage is heavier for them than for men. Tender women, you are set ablaze with the fire of love, and you should boldly compensate yourselves. You should persuade yourselves that there is no evil in following the impulses of nature, and that that nature did not create you for only one man, but for all men indifferently. Let no brake stop you. Follow the Greek republicans: the legislators who made their laws never imagined adultery a crime, and almost all authorized the disorderliness of the women. In his Utopia, Thomas More argues that it is advantageous for women to be given to depravity, and the ideas of this great man were not always mere dreams.
Among the Tartars, the more a woman was indecent, the more she was honored. She publicly wore necklaces indicating her impudicity, and women were not admired if they were not decorated with it. In Peru, families gave their wives and daughters to travelers; they were rented so much per day, like horses and carriages! Volumes, finally, could be written to show that lustful activity was never regarded as criminal among wise people of the earth. All philosophers know very well that it is only Christian impostors who have established it as a crime. Priests have had good reasons for prohibiting lustful actions. By priests holding the knowledge and remission of these secret sins, this prohibition gave them an incredible power over women, and it opened a career of lechery for them that was beyond limits. It is well-known how they benefited from it, and they would still misuse their position if they were not completely discredited.
Is incest more dangerous? Certainly not. It extends the bonds of families and consequently makes the citizens’ love for the fatherland more active. It is dictated to us by the primary laws of nature; we testify to it, and feel that the pleasure of the objects which belong to us are all the more delicious. The first societies support incest; we find it in their origins. It is sacred in all religions, and all laws supported it. If we travel the world, we will find incest established everywhere. The people of the Ivory Coast and Gabon prostituted their wives with their own children. In the kingdom of Judah, the elder son must marry his father’s wife. The people of Chile sleep indifferently with their sisters, their daughters, and often marry mother and daughter at the same time. I dare to say, in a word, that incest should be the law of any government whose foundation is fraternity. How could reasonable men carry nonsense to the point of believing that the pleasure of one’s mother, sister or daughter is criminal? Isn’t this, I ask you, an abominable prejudice that makes it a crime for a man to enjoy an object more which natural feelings bring closer to him? It would be just like saying that we should not love too much the individuals that nature commands us to love the most, and that the more nature gives us inclinations for an object, the more it orders us at the same time to move away from it! These contrarieties are absurd. Only people bewildered by superstition can believe or adopt them. As the community of women that I establish necessarily involve incest, there remains little to be said regarding this alleged offence whose existence is too evident to dwell upon here any longer. . . .
But regarding homosexual sodomy—the alleged crime that attracted the fire of heaven on the cities which were devoted to it—isn’t it a monstrous deviation, whose punishment could not be strong enough? It is undoubtedly quite painful for us to have to criticize our ancestors for the legal murders which they dared to allow on this subject. Is it possible to be more barbaric than to condemn to death an unhappy person whose only crime is to not have the same tastes as you? I shudder to think that it has been only forty years since the absurdity of legislators was still at this point. Take comfort, citizens: such nonsense will not happen again. The wisdom of your legislators will answer for it. Enlightened on this weakness in some men, we now see well that such an error cannot be criminal. 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.
What is the crime that can exist here? Undoubtedly it is not to place itself in such or such place, for no one will maintain that all the parts of the body are different, some pure and others impure. But, as it is impossible to advance such nonsense, the only alleged offence could consist in the loss of semen. However, I ask whether it is likely that semen is so invaluable in the eyes of nature that wasting it is a crime? If that were so, would she continually authorize those losses? Doesn’t nature authorize this by allowing them in dreams, and in the act of pleasure with a pregnant woman? Could nature give us the possibility of a crime that would outrage her? Is it possible for nature to grant men the power to destroy her pleasures and thereby becoming stronger than nature? It is unspeakable, and in what an abyss of absurdity are we thrown when, in reasoning, we give up the helps of reason’s torch! Let us rest assured that it is as easy to enjoy a woman in one manner as in another, just as it is absolutely indifferent to enjoy a woman or a man. Let us understand that no other inclinations can exist in us except those which we have from nature; it is too wise and consistent to have put any in us that would offend her.
The desire for sodomy is the result of one’s physical form, and we cannot contribute anything to this. Children of the youngest age announce this preference, and never correct themselves in it. Sometimes it is the result of desire; but, even in this case, is it any less part of nature? No matter how we look at it, it is the work of nature, and whatever she inspires must be respected by us. Suppose that, by an exact census, we came to prove that this preference affects infinitely more than the other, that the pleasures which result from it are much sharper, and that because of that its advocates are thousand times more than its enemies: wouldn’t it be possible to conclude whereas, far from outraging nature, this vice serves its design, and that nature is much less devoted to procreation than we in our madness believe? In fact, as we travel the world, don’t we see people everywhere holding women in scorn? Men make use of them only as is absolutely necessary for having a child to replace them. The practice that men have of living together in republics will always make this vice the more frequent, but it is certainly not dangerous. Would the legislators of Greece have introduced it into their republic if they had believed it such? Well far from this, they believed it necessary to warlike people. Plutarch speaks to us with enthusiasm about the battalion of lovers: for a long time they alone defended the freedom of Greece. This vice prevailed among brothers in arms, and it cemented them. The greatest men were inclined towards sodomy. When it was discovered, all of America was populated with people of this taste. In Louisiana, at Illinois, Indians dressed as women prostituted themselves like courtesans. . . .
MILL: LIMITS TO CONTROLLING HARM FROM PROSTITUTION
Freedom to Fornicate, but Maybe not to Pimp (On Liberty)
Again, there are many acts which, being directly injurious only to the agents themselves, ought not to be legally interdicted, but which, if done publicly, are a violation of good manners, and coming thus within the category of offences against others, may rightfully be prohibited. Of this kind are offences against decency [e.g., sex in public] ; on which it is unnecessary to dwell, the rather as they are only connected indirectly with our subject, the objection to publicity being equally strong in the case of many actions not in themselves condemnable, nor supposed to be so.
There is another question to which an answer must be found, consistent with the principles which have been laid down. . . . Fornication, for example, must be tolerated, and so must gambling; but should a person be free to be a pimp, or to keep a gambling-house? The case is one of those which lie on the exact boundary line between two principles, and it is not at once apparent to which of the two it properly belongs. There are arguments on both sides. On the side of toleration it may be said, that the fact of following anything as an occupation, and living or profiting by the practice of it, cannot make that criminal which would otherwise be admissible; that the act should either be consistently permitted or consistently prohibited; that if the principles which we have hitherto defended are true, society has no business, as society, to decide anything to be wrong which concerns only the individual; that it cannot go beyond dissuasion, and that one person should be as free to persuade, as another to dissuade.
In opposition to this it may be contended, that . . . [the state] cannot be acting wrongly in endeavoring to exclude the influence of solicitations which are not disinterested, of instigators who cannot possibly be impartial -- who have a direct personal interest on one side, and that side the one which the State believes to be wrong, and who confessedly promote it for personal objects only. There can surely, it may be urged, be nothing lost, no sacrifice of good, by so ordering matters that persons shall make their election, either wisely or foolishly, on their own prompting, as free as possible from the arts of persons who stimulate their inclinations for interested purposes of their own.
There is considerable force in these arguments. I will not venture to decide whether they are sufficient to justify the moral anomaly of punishing the accessary, when the principal is (and must be) allowed to go free; of fining or imprisoning the procurer, but not the fornicator, the gambling-house keeper, but not the gambler.
Against Arresting Prostitutes in Military Towns (The Evidence of John Stuart Mill)
Do you consider that such legislation as that is justifiable on principle? I do not consider it justifiable on principle, because it appears to me to be opposed to one of the greatest principles of legislation, the security of personal liberty. It appears to me that legislation of this sort takes away that security, almost entirely from a particular class of women intentionally, but incidentally and unintentionally, one may say, from all women whatever, inasmuch as it enables a woman to be apprehended by the police on suspicion and taken before a magistrate, and then by that magistrate she is liable to be confined for a term of imprisonment which may amount, I believe, to six months, for refusing to sign a declaration consenting to be examined. . . .
Is your objection confined to the possibility of a modest woman being brought up under these Acts? That is a very great part of my objection. Although I am quite aware that the Act only authorizes the apprehension of prostitutes, still a discretion must necessarily be left in the police to prevent the entire evasion of the Act. And I have understood that it is held by its supporters, medical men and others, that the powers must be very considerable if the Acts are not to be very seriously evaded. What number of cases there have been in which modest women, or women at any rate not prostitutes, have been apprehended by the police on suspicion, I do not know, but it appears to me that the police have that power, and that they must have the power, it is impossible to enforce the Acts unless they have the power, the Acts cannot be made really effectual unless those powers are strengthened. But in any case it seems to me that we ought not to assume, even supposing no case of abuse has been found out as yet, that abuses will not occur. When power is given which may be easily abused, we ought always to presume that it will be abused, and although it is possible that great precautions will be taken at first, those precautions are likely to be relaxed in time. We ought not to give powers liable to very great abuse, and easily abused, and then presume that those powers will not be abused. . . .
Do you consider it objectionable in itself that the Legislature should make provision for the periodical examination of common prostitutes who let out their bodies for hire? I think that it is objectionable. . . . The effect of the examination which the Act requires, and similar examinations which are required in foreign countries, is said to be, and I believe with a great deal of truth, to lead to a great amount of clandestine prostitution, and the Acts therefore are not effectual unless clandestine prostitution is touched also. . . .
To follow up that, supposing a woman had voluntarily submitted her person to examination, and her person was found to be diseased, would you consider it an unjustifiable violation of her if she was sent to hospital, and detained in the hospital against her will until she was cured? I should think the objection less strong than in the other case, but I still think it objectionable because I do not think it is part of the business of the Government to provide securities beforehand against the consequences of immoralities of any kind. That is a totally different thing from remedying the consequences after they occur. That I see no objection to at all. I see no objection to having hospitals for the cure of patients, but I see considerable objection to consigning them to hospitals against their will.
Would your objection be modified by this consideration. It is in evidence before this Commission, and we will assume for the purpose of your answer that it is proved to your satisfaction that the contagious disease extends far beyond the guilty persons, and may be communicated to innocent wives, and be transmitted to innocent children? . . . A woman can only communicate it through a man; it must be the man who communicates it to innocent women and children afterwards. It seems to me, therefore, if the object is to protect those who are not unchaste, the way to do that is to bring motives to bear on the man and not on the woman, who cannot have anything to do directly with the communication of it to persons entirely innocent, whereas the man can and does. If you ask whether I think it possible to bring motives to bear on the man, I think there are various ways in which it may be done. In the first place, the same degree of espionage which is necessary to detect women would detect also the men who go with them, because very often they are detected only by the circumstance of being seen to go into certain houses with men. In that case, if the women can be laid hold of, the men can also, and be obliged to give an account why they are there. But without the exercise of espionage on either men or women, there are other means which can be had recourse to; very severe damages in case a man is proved to have communicated this disease to a modest woman, and in the case of his wife, divorce as a matter of right; I think that a stronger case in which to apply the remedy of divorce can hardly be conceived.
Supposing for a moment that the enactment in law making it penal to communicate the disease to another person was objectionable on the ground that it would lead to extortion, and that a wife so affected would not be able to overcome all those influences which her own affections have over her to induce her not to take the extreme step of seeking divorce, what remedy would you provide for the innocent children? The evil could only reach the children through the wife. The unborn children could only be infected by the mother being first infected. If it was proved that a man had been the means of communicating to his wife, she being a modest woman, or to his children, any of these diseases, the law should grant the woman a divorce, and compel the man in proportion to his means to pay very heavy damages to them for their support apart from himself. That, in my opinion, is what the law ought to do in the case. . . .
You do not see your way to any improved legislation, for instance, with reference to brothels? That is a different question and a very difficult one. The question of the regulation of brothels, whether they should be systematically put down, or let alone to a certain degree, enters into very wide reaching considerations as to the degree in which the law should interfere in questions of simple morality, and also how far it should attack one portion of the persons who conspire to do a particular act, while it tolerates the others. I have always felt it very difficult to lay down a general rule on the subject, and I am not prepared to do so now, but I do not think it material to the consideration of these Acts. . . .
Would you leave those women to rot and die under the hedges, rather than pass such Acts as these to save them? I do not think it is quite fair to put the question exactly in that manner, because I am inclined to think that I should approve very much more decided measures of that sort with regard to the destitute classes generally than are now in practice. I should say, if you found a person in this last stage of consumption, or any other very wretched disease, it might be advisable and right to lay hold of that person and give him or her relief or proper medical treatment, and under proper medical regulation, and whatever relief of that sort I gave to others I would give to these women. What I object to is having special legislation for those women, which would have the effect of singling them out for a special cure, to which persons with other equally bad diseases are not subject. . . .
I was going to ask you up to what age you would think the State would be justified in interfering to prevent prostitution? I should think certainly up to 17 or 18, up to the age when what is commonly called education ordinarily finishes. Possibly it might be extended with propriety until the girl was legally of age, but on that I would not undertake to give an opinion.
Do you think it any interference with the liberty of the subject to prevent solicitation in the streets? No; I think that is the duty of the police, in order to preserve the order of the streets. . . .
In your opinion, if the laws in existence against seduction and bastardy and in other respects were strengthened and made of real practical use, would it have a tendency to diminish prostitution? I do not know whether it would have a tendency to reduce prostitution, but that is not the only thing to be considered, because it might have a tendency to increase other kinds of illicit intercourse. When the laws relating to bastardy made a greater attempt to enforce the obligation upon the seducer than is the case now, they did produce very demoralizing effects upon many women. I do not mean to give an express opinion as to how far the law might properly go on that subject. At present my feeling is against any attempt, however much it may be agreeable to one’s moral feelings, to restrain illicit intercourse in that way. . . .
Restraining Sexual Passion through Reason (Letter to John Russell)
Mr. [William] Lecky’s state of mind on the subject of prostitution is characteristically conservative. He thinks that since it has not been reformed up to this day it never can be. This is the true conservative stand point. Whatever reforms have been already effected are well enough; if they were effected long enough ago, they are even excellent. As to any reforms in the future, though they might be desirable in themselves, they are sure to bring with them greater evils than they can remove; and then come those jeremiads more or less eloquent and touching, which we are so accustomed to in politics and morals, about the fearful consequences to society of attempting to do anything that has not been done already. It would be hardly possible to support any opinion by flimsier reasons than these particular ones of Mr. Lecky. Are we to consider what the Church accomplished in the middle ages as the extreme limit of the moral improvement possible to mankind? . . .
It is of more importance, however, to consider Mr. Lecky’s doctrine than his reasons. He considers prostitution as a safety valve to prevent the propensity to which it ministers from producing worse evils. Now, in the first place, I believe that the propensity has hitherto been fostered, instead of being weakened, by the tendencies of civilization (which has been a civilization left mainly to the influence of men) and by the teaching of the Catholic Church, which in order to add to the glory of the ‘grace of God,’ always has exaggerated and still does exaggerate the force of the natural passions. I think it most probable that this particular passion will become with men, as it is already with a large number of women, completely under the control of the reason. It has become so with women because its becoming so has been the condition upon which women hoped to obtain the strongest love and admiration of men. The gratification of this passion in its highest form, therefore, has been, with women, conditional upon their restraining it in its lowest. It has not yet been tried what the same conditions will do for men. I believe they will do all that we wish, nor am I alone in thinking that men are by nature capable of as thorough a control over these passions as women are. I have known eminent medical men, and lawyers of logical mind, of the same opinion.
The Harms of Prostitution and need for Equality in Marriage (Letter to John Russell)
But, in the second place, supposing that Mr Lecky is right in thinking, as he apparently does, that men are not capable of efficient control over this propensity, I should still differ from him when he thinks that prostitution is the best safety valve. I, on the contrary, think that with the exception of sheer brutal violence, there is no greater evil that this propensity can produce than prostitution. Of all modes of sexual indulgence, consistent with the personal freedom and safety of women, I regard prostitution as the very worst; not only on account of the wretched women whose whole existence it sacrifices, but because no other is anything like so corrupting to the men. In no other is there the same total absence of even a temporary gleam of affection and tenderness; in no other is the woman to the man so completely a mere thing used simply as a means, for a purpose which to herself must be disgusting. Moreover so far from thinking with Mr Lecky that prostitution is a safeguard even to the virtuous women, I think it cuts at the core of happiness in marriage, since it gives women a feeling of difference and distance between themselves and their husbands, and prevents married people from having frank confidence in one another. The fact I believe to be, that prostitution seems the only resource to those and to those only, who look upon the problem to be solved to be, how to allow the greatest license to men consistently with retaining a sufficient reserve or nursery of chaste women for wives. Their problem is not, as yours and mine is, how to obtain the greatest amount of chastity and happiness for men, women, and children. Marriage has not had a fair trial. It has yet to be seen what marriage will do, with equality of rights on both sides; with that full freedom of choice which as yet is very incomplete anywhere, and in most countries does not exist at all on the woman’s side; and with a conscientious scruple, enforced by opinion, against giving existence to more children than can be done justice to by the parents. When marriage under these conditions (and with such means of legal relief in extreme cases as may be adopted when men and women have an equal voice) shall have been tried and failed, it will be time to look out for something else: but that this something else, whatever it may be, will be better than prostitution, is my confirmed conviction.
Source: Thomas Aquinas, Summa Contra Gentiles, 3.122-125, tr. Joseph Rickaby; David Hume, “Of Polygamy and Divorces,” in Essays, Moral, Political and Literary (1741-42), and An Enquiry Concerning the Principles of Morals (1752), Section 4.] Immanuel Kant, Lectures on Ethics (c. 1780), tr. Alan Smithee; Philosophy in the Bedroom (1795), Dialogue 5, tr. Alan Smithee. John Stuart Mill, On Liberty (1859), 5; Letter to John Russell, February 2. 1870; The Evidence of John Stuart Mill, 1871.
Questions for Review
1. What is Aquinas’s argument for the naturalness of marriage?
2. What are Aquinas’s arguments against divorce?
3. What are Aquinas’s arguments against polygamy?
4. For Hume, why is polygamy harmful to society?
5. For Hume, why is voluntary divorce harmful to society?
6. For Hume, why should unfaithful women not be publically shamed?
7. For Kant, why is sexual desire without true human love so bad?
8. For Kant, how does sex constitute a union between partners within a marriage?
9. For Kant, why are masturbation, homosexuality and bestiality sex crimes against nature?
10. De Sade describes special houses of prostitution that should be set up. How would these houses operate?
11. What is de Sade’s argument for why women cannot sexually belong exclusively to any one man?
12. What is de Sade’s argument for homosexuality?
13. What are Mill’s arguments both for and against the legality of pimping?
14. For Mill, what negative consequences do the Contagious Disease Acts have for even “modest women” (i.e., non-prostitutes).
15. According to Mill, what are Lecky’s reasons for not having stricter laws against prostitution?
Questions for Analysis
1. Aquinas believes that sex among infertile couples is permissible, even if it cannot result in procreation. Give his rationale for this and say whether you agree.
2. Aquinas presents four arguments against divorce. Discuss problems that you might find with his argument.
3. A critic of Aquinas might argue that we regularly use our bodies for purposes other than their naturally-intended function (e.g., using our hands to walk), so misuse of semen is only a slight sin. Discuss Aquinas’s response and say whether you agree.
4. Aquinas argues that recreational sex that doesn’t aim at procreation is second only to murder. Similarly, Kant argues that any use of the sexual inclinations, except within marriage, is an abuse and thus a sex crime against nature that places us lower than animals. How might you defend premarital sex with contraception against Aquinas and Kant?
5. Hume argues that marriage agreements are not defined by nature, but can potentially be as flexible as any mutual contract between people. Explain his position and whether you agree.
6. Kant describes the union that sex brings to a marriage that is founded on true love, and any other type of sexual activity is degrading. Does Kant have a realistic view of true love and union within marriage (Kant himself was never married)?
7. Aquinas and De Sade both discuss whether nature cares about non-procreative emission of semen. Explain their respective views and say which side you agree with.
8. Defend or refute de Sade’s criticism of sexual monogamy.
9. State what you believe is the most disturbing aspect of de Sade’s theory and then present a non-religious criticism of his view.
10. Aquinas, Kant and de Sade all agree that sexual morality is not to be determined on the basis of harm to others. Explain each of their rationales, and discuss whether harm to others is more important than these authors maintain.
11. Like Aquinas, Hume rejects polygamy and divorce, and advocates sexual fidelity for women. However, Aquinas conventional sexual morality from the standpoint of natural law, whereas Hume does so solely on the basis of the value that conventional sexual morality has for society. Explain the difference between their two approaches and whether one makes more sense than the other.
12. In the above section on Mill titled “Freedom to Fornicate, but Maybe not to Pimp”, Mill cannot decide whether pimping should be made illegal. What are his arguments both for and against the legality of pimping, and which of these do you think is the strongest?
13. Mill states that “I do not think it is part of the business of the Government to provide securities beforehand against the consequences of immoralities of any kind. That is a totally different thing from remedying the consequences after they occur. That I see no objection to at all.” Explain his point here and how this relates to governmental actions regarding prostitution.
14. Mill argues that giving women equality and an equal voice within marriage may help. His point is sketchy, by try to explain his reasoning and say whether you agree.
SUPREME COURT CASES ON SEX
Griswold v. Connecticut; Stanley v. Georgia; Eisenstadt v. Baird; Miller v. California; Lawrence v. Texas
For more than a half century, the Supreme Court has made major decisions relating to sex. In each case the underlying conflict has involved whether individual states can outlaw specific sexual behavior as they see fit, or whether that sexual behavior was part of an essential liberty protected by the Constitution. At the heart of that Constitutional question is the “due process clause” of the fourteenth amendment: “nor shall any State deprive any person of life, liberty, or property, without due process of law.” That is, individual states cannot enact laws that obstruct the basic liberty rights of citizens. The selections below are from five cases that address the topics of contraception, pornography, and homosexuality. In the case Griswold v. Connecticut (1965), staff members of Planned Parenthood were convicted of violating a Connecticut law prohibiting the prescribing of contraception to married couples. The Supreme Court struck down Connecticut’s law, stating that the issue of contraception within marriage involves a zone of privacy within the marital bedroom, and forbidding contraception “is repulsive to the notions of privacy surrounding the marriage relationship.”
In Stanley v. Georgia (1969), a man was convicted of a Georgia law prohibiting the possession of obscene material. The Supreme Court struck down Georgia’s law on the grounds that people have the right to satisfy their intellectual and emotional needs in the privacy of their own home, and the state cannot control the moral content of one’s thoughts. Thus, the possession of obscene material is Constitutionally protected—although this does not include possession of child pornography, which is specifically banned by federal law. The issue of contraception came up again in Eisenstadt v. Baird (1972), a university professor was convicted of violating a Massachusetts law when he distributed contraception to his unmarried students during a lecture. The Supreme Court struck down the Massachusetts law on the grounds that there was no justification for treating married and unmarried people differently regarding contraception. The issue of pornography arose again in Miller v. California (1973), which this time addressed the question of the right to distribute obscene material, and not merely possess it. The Supreme Court ruled that the distribution of obscene material is not protected by the Constitution, and offered a three-pronged test for determining when states may ban such distribution: (1) the material is judged inappropriate by community standards, (2) the state specifies what counts as obscene material, and (3) the material lacks serious literary, artistic, political, or scientific value, which would otherwise be constitutionally protected.
The question of homosexuality was addressed in Lawrence v. Texas (2003) where two men were convicted of violating a Texas law that forbad people of the same gender from having deviant sexual intercourse. The Supreme Court struck down the Texas law maintaining that it violates a fundamental liberty of people to be free from government intrusion with “the most private human conduct, sexual behavior, and in the most private of places, the home.” Finally, the Supreme Court addressed the issue of same-sex marriage in Windsor v. U.S. (2013). Edith Windsor was legally married to another woman in Canada and they resided in New York, which recognizes same-sex marriages. When Windsor’s spouse died, the Federal IRS imposed a $363,053 estate tax on her since under the Defense of Marriage Act (1996) the Federal government does not acknowledge the legitimacy of same-sex marriages. The Supreme Court ruled in Windsor’s favor on the grounds that DOMA violated New York’s states’ rights and deprived same-sex married couples within New York equal liberty guaranteed by due process clause of the Fifth Amendment and the equal protection clause of the Fourteenth Amendment.
THE RIGHT OF THE MARRIED TO CONTRACEPTION: GRISWOLD V. CONNECTICUT (1965)
Appellants, the Executive Director of the Planned Parenthood League of Connecticut, and its medical director, a licensed physician, were convicted as accessories for giving married persons information and medical advice on how to prevent conception and, following examination, prescribing a contraceptive device or material for the wife’s use. A Connecticut statute makes it a crime for any person to use any drug or article to prevent conception. Appellants claimed that the accessory statute, as applied, violated the Fourteenth Amendment.
Marriage and the Right to Privacy: William O. Douglas
Coming to the merits, we are met with a wide range of questions that implicate the Due Process Clause of the Fourteenth Amendment. We do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions. This law, however, operates directly on an intimate relation of husband and wife and their physician’s role in one aspect of that relation.
The association of people is not mentioned in the Constitution nor in the Bill of Rights. The right to educate a child in a school of the parents’ choice—whether public or private or parochial—is also not mentioned. Nor is the right to study any particular subject or any foreign language. Yet the First Amendment has been construed to include certain of those rights. . . .
The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives, rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship. Such a law cannot stand in light of the familiar principle, so often applied by this Court, that a “governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.” (NAACP v. Alabama). Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.
We deal with a right of privacy older than the Bill of Rights—older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.
No Right to Privacy: Dissent, Potter Stewart
The two defendants here were active participants in an organization which gave physical examinations to women, advised them what kind of contraceptive devices or medicines would most likely be satisfactory for them, and then supplied the devices themselves, all for a graduated scale of fees, based on the family income. Thus, these defendants admittedly engaged with others in a planned course of conduct to help people violate the Connecticut law. Merely because some speech was used in carrying on that conduct -- just as, in ordinary life, some speech accompanies most kinds of conduct -- we are not, in my view, justified in holding that the First Amendment forbids the State to punish their conduct. Strongly as I desire to protect all First Amendment freedoms, I am unable to stretch the Amendment so as to afford protection to the conduct of these defendants in violating the Connecticut law. What would be the constitutional fate of the law if hereafter applied to punish nothing but speech is, as I have said, quite another matter. The Court talks about a constitutional "right of privacy" as though there is some constitutional provision or provisions forbidding any law ever to be passed which might abridge the "privacy" of individuals. But there is not. There are, of course, guarantees in certain specific constitutional provisions which are designed in part to protect privacy at certain times and places with respect to certain activities. Such, for example, is the Fourth Amendment's guarantee against "unreasonable searches and seizures." But I think it belittles that Amendment to talk about it as though it protects nothing but "privacy." To treat it that way is to give it a niggardly interpretation, not the kind of liberal reading I think any Bill of Rights provision should be given. The average man would very likely not have his feelings soothed any more by having his property seized openly than by having it seized privately and by stealth. He simply wants his property left alone. And a person can be just as much, if not more, irritated, annoyed and injured by an unceremonious public arrest by a policeman as he is by a seizure in the privacy of his office or home.
One of the most effective ways of diluting or expanding a constitutionally guaranteed right is to substitute for the crucial word or words of a constitutional guarantee another word or words, more or less flexible and more or less restricted in meaning.
THE RIGHT TO POSSESS OBSCENE MATERIAL: STANLEY V. GEORGIA (1969)
Under authority of a warrant to search appellant’s home for evidence of his alleged bookmaking activities, officers found some films in his bedroom. The films were projected and deemed to be obscene. Appellant was arrested for their possession. He was thereafter indicted, tried, and convicted for “knowingly hav[ing] possession of . . . obscene matter” in violation of a Georgia law.
Obscenity and Privacy of Thought: Thurgood Marshall
Appellant raises several challenges to the validity of his conviction. We find it necessary to consider only one. Appellant argues here, and argued below, that the Georgia obscenity statute, insofar as it punishes mere private possession of obscene matter, violates the First Amendment, as made applicable to the States by the Fourteenth Amendment. For reasons set forth below, we agree that the mere private possession of obscene matter cannot constitutionally be made a crime.
These are the rights that appellant is asserting in the case before us. He is asserting the right to read or observe what he pleases—the right to satisfy his intellectual and emotional needs in the privacy of his own home. He is asserting the right to be free from state inquiry into the contents of his library. Georgia contends that appellant does not have these rights, that there are certain types of materials that the individual may not read or even possess. Georgia justifies this assertion by arguing that the films in the present case are obscene. But we think that mere categorization of these films as “obscene” is insufficient justification for such a drastic invasion of personal liberties guaranteed by the First and Fourteenth Amendments. Whatever may be the justifications for other statutes regulating obscenity, we do not think they reach into the privacy of one’s own home. If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men’s minds.
And yet, in the face of these traditional notions of individual liberty, Georgia asserts the right to protect the individual’s mind from the effects of obscenity. We are not certain that this argument amounts to anything more than the assertion that the State has the right to control the moral content of a person’s thoughts. To some, this may be a noble purpose, but it is wholly inconsistent with the philosophy of the First Amendment. As the Court said in Kingsley International Pictures Corp. v. Regents, “[t]his argument misconceives what it is that the Constitution protects. Its guarantee is not confined to the expression of ideas that are conventional or shared by a majority. . . . And in the realm of ideas it protects expression which is eloquent no less than that which is unconvincing.” Nor is it relevant that obscene materials in general, or the particular films before the Court, are arguably devoid of any ideological content. The line between the transmission of ideas and mere entertainment is much too elusive for this Court to draw, if indeed such a line can be drawn at all. Whatever the power of the state to control public dissemination of ideas inimical to the public morality, it cannot constitutionally premise legislation on the desirability of controlling a person’s private thoughts.
Perhaps recognizing this, Georgia asserts that exposure to obscene materials may lead to deviant sexual behavior or crimes of sexual violence. There appears to be little empirical basis for that assertion. But more important, if the State is only concerned about printed or filmed materials inducing antisocial conduct, we believe that in the context of private consumption of ideas and information we should adhere to the view that “[a]mong free men, the deterrents ordinarily to be applied to prevent crime are education and punishment for violations of the law . . . .” Given the present state of knowledge, the State may no more prohibit mere possession of obscene matter on the ground that it may lead to antisocial conduct than it may prohibit possession of chemistry books on the ground that they may lead to the manufacture of homemade spirits.
It is true that in Roth this Court rejected the necessity of proving that exposure to obscene material would create a clear and present danger of antisocial conduct or would probably induce its recipients to such conduct. But that case dealt with public distribution of obscene materials and such distribution is subject to different objections. For example, there is always the danger that obscene material might fall into the hands of children, or that it might intrude upon the sensibilities or privacy of the general public. No such dangers are present in this case.
Finally, we are faced with the argument that prohibition of possession of obscene materials is a necessary incident to statutory schemes prohibiting distribution. That argument is based on alleged difficulties of proving an intent to distribute or in producing evidence of actual distribution. We are not convinced that such difficulties exist, but even if they did we do not think that they would justify infringement of the individual’s right to read or observe what he pleases. Because that right is so fundamental to our scheme of individual liberty, its restriction may not be justified by the need to ease the administration of otherwise valid criminal laws.
We hold that the First and Fourteenth Amendments prohibit making mere private possession of obscene material a crime.
THE RIGHT OF THE UNMARRIED TO CONTRACEPTION: EISENSTADT V. BAIRD (1972)
Appellee attacks his conviction of violating Massachusetts law for giving a woman a contraceptive foam at the close of his lecture to students on contraception. That law makes it a felony for anyone to give away a drug, medicine, instrument, or article for the prevention of conception except in the case of (1) a registered physician administering or prescribing it for a married person or (2) an active registered pharmacist furnishing it to a married person presenting a registered physician’s prescription.
No Grounds for Treating Married and Unmarried Differently: William J. Brennan
The basic principles governing application of the Equal Protection Clause of the Fourteenth Amendment are familiar. As the Chief Justice only recently explained in Reed v. Reed:
“In applying that clause, this Court has consistently recognized that the Fourteenth Amendment does not deny to States the power to treat different classes of persons in different ways. The Equal Protection Clause of that amendment does, however, deny to States the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute. A classification ‘must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.’”
The question for our determination in this case is whether there is some ground of difference that rationally explains the different treatment accorded married and unmarried persons under Massachusetts General Laws Ann., c. 272, 21 and 21A [i.e., “Crimes Against Chastity, Morality, Decency and Good Order,” which prohibits providing contraception to the unmarried]. For the reasons that follow, we conclude that no such ground exists.
First. Section 21 stems from Mass. Stat. 1879, c. 159, 1, which prohibited, without exception, distribution of articles intended to be used as contraceptives. In Commonwealth v. Allison, the Massachusetts Supreme Judicial Court explained that the law’s “plain purpose is to protect purity, to preserve chastity, to encourage continence and self restraint, to defend the sanctity of the home, and thus to engender in the State and nation a virile and virtuous race of men and women.” Although the State clearly abandoned that purpose with the enactment of 21A, at least insofar as the illicit sexual activities of married persons are concerned, see n. 3, supra, the court reiterated in Sturgis v. Attorney General, supra, that the object of the legislation is to discourage premarital sexual intercourse. Conceding that the State could, consistently with the Equal Protection Clause, regard the problems of extramarital and premarital sexual relations as “[e]vils . . . of different dimensions and proportions, requiring different remedies,” Williamson v. Lee Optical Co., we cannot agree that the deterrence of premarital sex may reasonably be regarded as the purpose of the Massachusetts law.
It would be plainly unreasonable to assume that Massachusetts has prescribed pregnancy and the birth of an unwanted child as punishment for fornication, which is a misdemeanor under Massachusetts General Laws Ann., c. 272, 18. Aside from the scheme of values that assumption would attribute to the State, it is abundantly clear that the effect of the ban on distribution of contraceptives to unmarried persons has at best a marginal relation to the proffered objective. What Mr. Justice Goldberg said in Griswold v. Connecticut, concerning the effect of Connecticut’s prohibition on the use of contraceptives in discouraging extramarital sexual relations, is equally applicable here. “The rationality of this justification is dubious, particularly in light of the admitted widespread availability to all persons in the State of Connecticut, unmarried as well as married, of birth-control devices for the prevention of disease, as distinguished from the prevention of conception.” Like Connecticut’s laws, 21 and 21A do not at all regulate the distribution of contraceptives when they are to be used to prevent, not pregnancy, but the spread of disease. Nor, in making contraceptives available to married persons without regard to their intended use, does Massachusetts attempt to deter married persons from engaging in illicit sexual relations with unmarried persons. Even on the assumption that the fear of pregnancy operates as a deterrent to fornication, the Massachusetts statute is thus so riddled with exceptions that deterrence of premarital sex cannot reasonably be regarded as its aim.
Justified Restrictions on dispensing Medicinal Substances: Dissent, Warren Burger
The judgment of the Supreme Judicial Court of Massachusetts in sustaining appellee's conviction for dispensing medicinal material without a license seems eminently correct to me and I would not disturb it. It is undisputed that appellee is not a physician or pharmacist and was prohibited under Massachusetts law from dispensing contraceptives to anyone, regardless of marital status. To my mind the validity of this restriction on dispensing medicinal substances is the only issue before the Court, and appellee has no standing to challenge that part of the statute restricting the persons to whom contraceptives are available. There is no need to labor this point, however, for everyone seems to agree that if Massachusetts has validly required, as a health measure, that all contraceptives be dispensed by a physician or pursuant to a physician's prescription, then the statutory distinction based on marital status has no bearing on this case. . . .
Even if it were conclusively established once and for all that the product dispensed by appellee is not actually or potentially dangerous in the somatic sense, I would still be unable to agree that the restriction on dispensing it falls outside the State's power to regulate in the area of health. The choice of a means of birth control, although a highly personal matter, is also a health matter in a very real sense, and I see nothing arbitrary in a requirement of medical supervision.
THE OBSCENITY TEST: MILLER V. CALIFORNIA (1973)
Appellant was convicted of mailing unsolicited sexually explicit material in violation of a California statute that approximately incorporated the obscenity test formulated in Memoirs v. Massachusetts (plurality opinion). The trial court instructed the jury to evaluate the materials by the contemporary community standards of California. Appellant’s conviction was affirmed on appeal.
The Three Pronged Test: Warren E. Burger
This much has been categorically settled by the Court, that obscene material is unprotected by the First Amendment. We acknowledge, however, the inherent dangers of undertaking to regulate any form of expression. State statutes designed to regulate obscene materials must be carefully limited. As a result, we now confine the permissible scope of such regulation to works which depict or describe sexual conduct. That conduct must be specifically defined by the applicable state law, as written or authoritatively construed. A state offense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.
The basic guidelines for the trier [i.e., test] 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. We do not adopt as a constitutional standard the “utterly without redeeming social value” test of Memoirs v. Massachusetts, that concept has never commanded the adherence of more than three Justices at one time. If a state law that regulates obscene material is thus limited, as written or construed, the First Amendment values applicable to the States through the Fourteenth Amendment are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary.
We emphasize that it is not our function to propose regulatory schemes for the States. That must await their concrete legislative efforts. It is possible, however, to give a few plain examples of what a state statute could define for regulation under part (b) of the standard announced in this opinion, supra:
(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.
(b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.
Sex and nudity may not be exploited without limit by films or pictures exhibited or sold in places of public accommodation any more than live sex and nudity can be exhibited or sold without limit in such public places. At a minimum, prurient, patently offensive depiction or description of sexual conduct must have serious literary, artistic, political, or scientific value to merit First Amendment protection. For example, medical books for the education of physicians and related personnel necessarily use graphic illustrations and descriptions of human anatomy. In resolving the inevitably sensitive questions of fact and law, we must continue to rely on the jury system, accompanied by the safeguards that judges, rules of evidence, presumption of innocence, and other protective features provide, as we do with rape, murder, and a host of other offenses against society and its individual members. . . .
Under the holdings announced today, no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive “hard core” sexual conduct specifically defined by the regulating state law, as written or construed. We are satisfied that these specific prerequisites will provide fair notice to a dealer in such materials that his public and commercial activities may bring prosecution. If the inability to define regulated materials with ultimate, god-like precision altogether removes the power of the States or the Congress to regulate, then “hard core” pornography may be exposed without limit to the juvenile, the passerby, and the consenting adult alike. . . .
Under a National Constitution, fundamental First Amendment limitations on the powers of the States do not vary from community to community, but this does not mean that there are, or should or can be, fixed, uniform national standards of precisely what appeals to the “prurient interest” or is “patently offensive.” These are essentially questions of fact, and our Nation is simply too big and too diverse for this Court to reasonably expect that such standards could be articulated for all 50 States in a single formulation, even assuming the prerequisite consensus exists. When triers of fact are asked to decide whether “the average person, applying contemporary community standards” would consider certain materials “prurient,” it would be unrealistic to require that the answer be based on some abstract formulation. The adversary system, with lay jurors as the usual ultimate factfinders in criminal prosecutions, has historically permitted triers of fact to draw on the standards of their community, guided always by limiting instructions on the law. To require a State to structure obscenity proceedings around evidence of a national “community standard” would be an exercise in futility.
Obscenity is not a Constitutional Issue: Dissent, William O. Douglas
Today the Court retreats from the earlier formulations of the constitutional test and undertakes to make new definitions. This effort, like the earlier ones, is earnest and well intentioned. The difficulty is that we do not deal with constitutional terms, since “obscenity” is not mentioned in the Constitution or Bill of Rights. And the First Amendment makes no such exception from "the press" which it undertakes to protect nor, as I have said on other occasions, is an exception necessarily implied, for there was no recognized exception to the free press at the time the Bill of Rights was adopted which treated "obscene" publications differently from other types of papers, magazines, and books. So there are no constitutional guidelines for deciding what is and what is not "obscene." The Court is at large because we deal with tastes and standards of literature. What shocks me may be sustenance for my neighbor. What causes one person to boil up in rage over one pamphlet or movie may reflect only his neurosis, not shared by others. We deal here with a regime of censorship which, if adopted, should be done by constitutional amendment after full debate by the people. . . .
If there are to be restraints on what is obscene, then a constitutional amendment should be the way of achieving the end. There are societies where religion and mathematics are the only free segments. It would be a dark day for America if that were our destiny. But the people can make it such if they choose to write obscenity into the Constitution and define it.
THE RIGHT TO HOMOSEXUAL ACTIVITY: LAWRENCE V. TEXAS (2003)
Responding to a reported weapons disturbance in a private residence, Houston police entered petitioner Lawrence’s apartment and saw him and another adult man, petitioner Garner, engaging in a private, consensual sexual act. Petitioners were arrested and convicted of deviate sexual intercourse in violation of a Texas statute forbidding two persons of the same sex to engage in certain intimate sexual conduct.
Sex as Liberty of Private and Intimate Conduct: Anthony Kennedy
Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and in its more transcendent dimensions.
The question before the Court is the validity of a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct. . . .
We conclude the case should be resolved by determining whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution. For this inquiry we deem it necessary to reconsider the Court’s holding in Bowers [i.e., the Supreme Court case Bowers v. Hardwick (1986) which upheld the constitutionality of states to criminalize and punish homosexual sodomy]. . . .
The Court began its substantive discussion in Bowers as follows: “The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time.” That statement, we now conclude, discloses the Court’s own failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse. The laws involved in Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.
This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects. It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.
Historical Laws regarding Sodomy
Having misapprehended the claim of liberty there presented to it, and thus stating the claim to be whether there is a fundamental right to engage in consensual sodomy, the Bowers Court said: “Proscriptions against that conduct have ancient roots.” In academic writings, and in many of the scholarly amicus briefs filed to assist the Court in this case, there are fundamental criticisms of the historical premises relied upon by the majority and concurring opinions in Bowers. We need not enter this debate in the attempt to reach a definitive historical judgment, but the following considerations counsel against adopting the definitive conclusions upon which Bowers placed such reliance.
At the outset it should be noted that there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter. Beginning in colonial times there were prohibitions of sodomy derived from the English criminal laws passed in the first instance by the Reformation Parliament of 1533. The English prohibition was understood to include relations between men and women as well as relations between men and men. Nineteenth-century commentators similarly read American sodomy, buggery, and crime-against-nature statutes as criminalizing certain relations between men and women and between men and men. The absence of legal prohibitions focusing on homosexual conduct may be explained in part by noting that according to some scholars the concept of the homosexual as a distinct category of person did not emerge until the late 19th century. Thus early American sodomy laws were not directed at homosexuals as such but instead sought to prohibit nonprocreative sexual activity more generally. This does not suggest approval of homosexual conduct. It does tend to show that this particular form of conduct was not thought of as a separate category from like conduct between heterosexual persons.
Laws prohibiting sodomy do not seem to have been enforced against consenting adults acting in private. A substantial number of sodomy prosecutions and convictions for which there are surviving records were for predatory acts against those who could not or did not consent, as in the case of a minor or the victim of an assault. As to these, one purpose for the prohibitions was to ensure there would be no lack of coverage if a predator committed a sexual assault that did not constitute rape as defined by the criminal law. Thus the model sodomy indictments presented in a 19th-century treatise, addressed the predatory acts of an adult man against a minor girl or minor boy. Instead of targeting relations between consenting adults in private, 19th-century sodomy prosecutions typically involved relations between men and minor girls or minor boys, relations between adults involving force, relations between adults implicating disparity in status, or relations between men and animals. . . .
The policy of punishing consenting adults for private acts was not much discussed in the early legal literature. We can infer that one reason for this was the very private nature of the conduct. Despite the absence of prosecutions, there may have been periods in which there was public criticism of homosexuals as such and an insistence that the criminal laws be enforced to discourage their practices. But far from possessing “ancient roots,” American laws targeting same-sex couples did not develop until the last third of the 20th century. The reported decisions concerning the prosecution of consensual, homosexual sodomy between adults for the years 1880-1995 are not always clear in the details, but a significant number involved conduct in a public place.
It was not until the 1970’s that any State singled out same-sex relations for criminal prosecution, and only nine States have done so. Post-Bowers even some of these States did not adhere to the policy of suppressing homosexual conduct. Over the course of the last decades, States with same-sex prohibitions have moved toward abolishing them.
In summary, the historical grounds relied upon in Bowers are more complex than the majority opinion and the concurring opinion by Chief Justice Burger indicate. Their historical premises are not without doubt and, at the very least, are overstated.
Against Mandating Personal Moral Codes
It must be acknowledged, of course, that the Court in Bowers was making the broader point that for centuries there have been powerful voices to condemn homosexual conduct as immoral. The condemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives. These considerations do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law. “Our obligation is to define the liberty of all, not to mandate our own moral code.”
Chief Justice Burger joined the opinion for the Court in Bowers and further explained his views as follows: “Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization. Condemnation of those practices is firmly rooted in Judeao-Christian moral and ethical standards.” As with Justice White’s assumptions about history, scholarship casts some doubt on the sweeping nature of the statement by Chief Justice Burger as it pertains to private homosexual conduct between consenting adults. In all events we think that our laws and traditions in the past half century are of most relevance here. These references show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex. “[H]istory and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry.” . . .
The sweeping references by Chief Justice Burger to the history of Western civilization and to Judeo-Christian moral and ethical standards did not take account of other authorities pointing in an opposite direction. A committee advising the British Parliament recommended in 1957 repeal of laws punishing homosexual conduct. . . .
Discrimination of Homosexuality is Legal: Dissent, Antonin Scalia
. . . Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct. I noted in an earlier opinion the fact that the American Association of Law Schools (to which any reputable law school must seek to belong) excludes from membership any school that refuses to ban from its job-interview facilities a law firm (no matter how small) that does not wish to hire as a prospective partner a person who openly engages in homosexual conduct.
One of the most revealing statements in today’s opinion is the Court’s grim warning that the criminalization of homosexual conduct is “an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.” It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed. Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive. The Court views it as “discrimination” which it is the function of our judgments to deter. So imbued is the Court with the law profession’s anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that culture are not obviously “mainstream”; that in most States what the Court calls “discrimination” against those who engage in homosexual acts is perfectly legal; that proposals to ban such “discrimination” under Title VII have repeatedly been rejected by Congress; that in some cases such “discrimination” is mandated by federal statute; and that in some cases such “discrimination” is a constitutional right.
Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts. But persuading one’s fellow citizens is one thing, and imposing one’s views in absence of democratic majority will is something else. I would no more require a State to criminalize homosexual acts—or, for that matter, display any moral disapprobation of them—than I would forbid it to do so. What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new “constitutional right” by a Court that is impatient of democratic change. It is indeed true that “later generations can see that laws once thought necessary and proper in fact serve only to oppress,” and when that happens, later generations can repeal those laws. But it is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste that knows best.
One of the benefits of leaving regulation of this matter to the people rather than to the courts is that the people, unlike judges, need not carry things to their logical conclusion. The people may feel that their disapprobation of homosexual conduct is strong enough to disallow homosexual marriage, but not strong enough to criminalize private homosexual acts—and may legislate accordingly. The Court today pretends that it possesses a similar freedom of action, so that we need not fear judicial imposition of homosexual marriage, as has recently occurred in Canada. . . .
NO FEDERAL RESTRICTIONS ON GAY MARRIAGE: UNITED STATES V. WINDSOR (2013)
Two women then resident in New York were married in a lawful ceremony in Ontario, Canada, in 2007. Edith Windsor and Thea Spyer returned to their home in New York City. When Spyer died in 2009, she left her entire estate to Windsor. Windsor sought to claim the estate tax exemption for surviving spouses. She was barred from doing so, however, by a federal law, the Defense of Marriage Act, which excludes a same-sex partner from the definition of “spouse” as that term is used in federal statutes. Windsor paid the taxes but filed suit to challenge the constitutionality of this provision. The United States District Court and the Court of Appeals ruled that this portion of the statute is unconstitutional and ordered the United States to pay Windsor a refund. This Court granted certiorari and now affirms the judgment in Windsor’s favor.
DOMA Violates States’ Rights and Individual Equality: Anthony Kennedy
Against this background of lawful same-sex marriage in some States, the design, purpose, and effect of DOMA should be considered as the beginning point in deciding whether it is valid under the Constitution. By history and tradition the definition and regulation of marriage, as will be discussed in more detail, has been treated as being within the authority and realm of the separate States. Yet it is further established that Congress, in enacting discrete statutes, can make determinations that bear on marital rights and privileges. . . . Though these discrete examples establish the constitutionality of limited federal laws that regulate the meaning of marriage in order to further federal policy, DOMA has a far greater reach; for it enacts a directive applicable to over 1,000 federal statutes and the whole realm of federal regulations. And its operation is directed to a class of persons that the laws of New York, and of 11 other States, have sought to protect. . . .
The States’ interest in defining and regulating the marital relation, subject to constitutional guarantees, stems from the understanding that marriage is more than a routine classification for purposes of certain statutory benefits. Private, consensual sexual intimacy between two adult persons of the same sex may not be punished by the State, and it can form “but one element in a personal bond that is more enduring.” Lawrence v. Texas. By its recognition of the validity of same-sex marriages performed in other jurisdictions and then by authorizing same-sex unions and same-sex marriages, New York sought to give further protection and dignity to that bond. For same-sex couples who wished to be married, the State acted to give their lawful conduct a lawful status. This status is a far-reaching legal acknowledgment of the intimate relationship between two people, a relationship deemed by the State worthy of dignity in the community equal with all other marriages. It reflects both the community’s considered perspective on the historical roots of the institution of marriage and its evolving understanding of the meaning of equality.
DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government. The Constitution’s guarantee of equality “must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group. In determining whether a law is motived by an improper animus or purpose, “ ‘[d]iscriminations of an un-usual character’ ” especially require careful consideration. DOMA cannot survive under these principles. The responsibility of the States for the regulation of domestic relations is an important indicator of the substantial societal impact the State’s classifications have in the daily lives and customs of its people. DOMA’s unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage here operates to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriages. This is strong evidence of a law having the purpose and effect of disapproval of that class. The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.
The history of DOMA’s enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute. It was its essence. The House Report announced its conclusion that “it is both appropriate and necessary for Congress to do what it can to defend the institution of traditional heterosexual marriage. . . . H. R. 3396 is appropriately entitled the ‘Defense of Marriage Act.’ The effort to redefine ‘marriage’ to extend to homosexual couples is a truly radical proposal that would fundamentally alter the institution of marriage. The House concluded that DOMA expresses “both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality.” The stated purpose of the law was to promote an “interest in protecting the traditional moral teachings reflected in heterosexual-only marriage laws.” Were there any doubt of this far-reaching purpose, the title of the Act confirms it: The Defense of Marriage. . . .
DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency. Responsibilities, as well as rights, enhance the dignity and integrity of the person. And DOMA contrives to deprive some couples married under the laws of their State, but not other couples, of both rights and responsibilities. By creating two contradictory marriage regimes within the same State, DOMA forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect. By this dynamic DOMA undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.
Under DOMA, same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways. By its great reach, DOMA touches many aspects of married and family life, from the mundane to the profound.
DOMA Does not Violate States’ Rights: Dissent, Samuel Alito
Our Nation is engaged in a heated debate about same-sex marriage. That debate is, at bottom, about the nature of the institution of marriage. Respondent Edith Windsor, supported by the United States, asks this Court to intervene in that debate, and although she couches her argument in different terms, what she seeks is a holding that enshrines in the Constitution a particular understanding of marriage under which the sex of the partners makes no difference. The Constitution, however, does not dictate that choice. It leaves the choice to the people, acting through their elected representatives at both the federal and state levels. I would therefore hold that Congress did not violate Windsor’s constitutional rights by enacting §3 of the Defense of Marriage Act (DOMA), which defines the meaning of marriage under federal statutes that either confer upon married persons certain federal benefits or impose upon them certain federal obligations. . . .
In any event, §3 of DOMA, in my view, does not encroach on the prerogatives of the States, assuming of course that the many federal statutes affected by DOMA have not already done so. Section 3 does not prevent any State from recognizing same-sex marriage or from extending to same-sex couples any right, privilege, benefit, or obligation stemming from state law. All that §3 does is to define a class of persons to whom federal law extends certain special benefits and upon whom federal law imposes certain special burdens. In these provisions, Congress used marital status as a way of defining this class—in part, I assume, because it viewed marriage as a valuable institution to be fostered and in part because it viewed married couples as comprising a unique type of economic unit that merits special regulatory treatment. Assuming that Congress has the power under the Constitution to enact the laws affected by §3, Congress has the power to define the category of persons to whom those laws apply.
Source: Justices William O. Douglas and Potter Stewart, Griswold v. Connecticut (1965). Justice Thurgood Marshall, Stanley v. Georgia (1969). Justice William J. Brennan and Warren E. Burger, Eisenstadt v. Baird (1972). Justices Warren E. Burger and William O. Douglas, Miller v. California (1973). Justices Anthony Kennedy and Antonin Scalia, Lawrence v. Texas (2003). Justices Anthony Kennedy and Samuel Alito, U.S. v. Windsor (2013).
Questions for Review
1. In Griswold v. Connecticut (1965), what are some of the Constitutionally protected rights that we have that are not explicitly mentioned in the Constitution?
2. In Stanley v. Georgia (1969), what are some of the reasons why the distribution of pornography might be prohibited by law—even though possession of pornography is Constitutionally protected?
3. In Eisenstadt v. Baird (1972), why can’t the aim of the Massachusetts law against unmarried couples using contraception be to deter premarital sex?
4. In Miller v. California (1973), regarding part (b) of the obscenity test, what are some possible State laws against pornography that the Supreme Court offers as examples?
5. In Lawrence v. Texas (2003), what were the main aims of sodomy laws in the past?
6. In his dissenting opinion regarding Lawrence v. Texas, what is one of the benefits of leaving regulation to the people rather than to judges?
7. In U.S. v. Windsor (2013), how did DOMA interfere with a same-sex married couple’s Constitutional guarantee of equality?
Questions for Analysis
1. Griswold v. Connecticut defends the Constitutional right of married people to use contraception based on a “zone of privacy” that people have within the marriage bedroom. What other Constitutionally protected rights might be included within that zone of privacy and why?
2. In Stanley v. Georgia, the Supreme Court recognizes that prohibiting possession of pornography may help prohibit its distribution. But they conclude that pornography possession is Constitutionally protected even though States may prohibit pornography distribution. Explain their reasoning on this point and discuss whether you agree.
3. In Eisenstadt v. Baird, the critical question was whether there are good grounds to treat married and unmarried people differently regarding the legality of contraception use. Massachusetts said that there is, but the Supreme Court said that there is not. Which side was right? Explain.
4. The notion of “community standards” is at the center of the test for obscenity established in the Miller v. California Supreme Court case. According to their reasoning, “our Nation is simply too big and too diverse for this Court to reasonably expect that such standards could be articulated for all 50 States in a single formulation, even assuming the prerequisite consensus exists.” Suppose that you were a District Attorney trying to prosecute a pornography distributor in your city. What would be the best way to show that the pornographic material in question was deemed inappropriate by the community standards of your city?
5. In Lawrence v. Texas¸ Anthony Kennedy defended a Constitutionally protected right to homosexual activity stating that “The issue is whether the majority may use the power of the State to enforce these [moral] views on the whole society through operation of the criminal law.” He says that the State cannot do this. Are there situations in which governments might be justified in mandating a specific moral code on society (particularly when the actions in question do not pose harm to the agent or others)?
5. In his dissenting opinion on Lawrence v. Texas, Scalia suggests that it is not discriminatory to not want openly gay people as business partners, scout masters, teachers, or boarders in one’s home. Critics of homosexuality “view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.” Is Scalia right that this isn’t discrimination? Explain.
6. Scalia states that “social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best” and that homosexuals have achieved some success in this since “Texas is one of the few remaining States that criminalize private, consensual homosexual acts.” Does this mean that conservatives have essentially lost the battle regarding the issue of the immorality of homosexual conduct? Explain.
7. Scalia criticizes that the Supreme Court’s decision in Lawrence v. Texas essentially involves the Court taking sides in a culture war since they were too impatient to let it be resolved State by State through the normal legislative process. But how bad would a single State’s law have to get before the Supreme Court would be justified in establishing a national standard that each State would have to abide by?
8. In his dissenting opinion on U.S. v. Windsor, Alito argues that DOMA did not violate states’ rights. Explain his rationale and whether you agree.
IS HOMOSEXUALITY ABNORMAL? PRO AND CONTRA
John Finnis and The American Psychological Association
Take an average homosexual couple and compare them 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 be 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.
Questions for Review
1. According to Finnis, what are the higher common goods of conjugal love, and how does that make the married couple a single unit?
2. According to Finnis, how does homosexuality treat the body as an instrument, and what harms does this cause?
3. According to the American Psychological Association, what is sexual orientation, and why is it not merely a characteristic of the individual person?
4. According to the APA, what are some indicators that homosexuality is a normal expression of human sexuality?
5. According to the APA, what are some indicators that committed homosexual relationships are equivalent to heterosexual relationships in essential respects?
Questions for Analysis
1. 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?
2. 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.
3. 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?
4. 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: 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 as defined by a state law, 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
. . . . [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 for Review
1. According to Paul, what are some of the negative effects of pornography on men?
2. According to Paul, what are some of the negative effects of pornography on relationships?
3. According to Paul, what are some of the negative effects of pornography on children?
4. According to Smolla, what are two limited ways of attacking soft core pornography that is Constitutionally protected under the Miller standard?
5. 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
1. Does Paul exaggerate the harmful effects of pornography? Explain.
2. 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?
3. 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.
ABSTINENCE-ONLY EDUCATION: PRO AND CONTRA
Stan E. Weed and Shelby Knox
“Abstinence-only sex education” is an approach used in many religious and public schools that promotes abstinence, rather than contraception, as a means for adolescents to avoid pregnancy and sexually transmitted diseases. The programs are typically associated with religious organizations and emphasize that the expected moral standard of sexual activity is only that within a monogamous marital relationship. These stand in contrast to “comprehensive sex education” approaches, which emphasize contraception use. A middle approach is sometimes dubbed “abstinence plus”, that is a program that emphasizes abstinence, but includes some recommendations for contraception use. The public controversy over abstinence-only programs concerns their effectiveness, and the two essays below are from a U.S. Congressional hearing on the subject. On the pro side is Stanley Weed, director of the “Institute for Research and Evaluation,” an organization which evaluates abstinence and other sex education programs. Weed argues that many abstinence-only programs are indeed effective, and the message their is most successful when it isn’t diluted with conflicting messages about condom use. On the contra side is feminist writer Shelby Knox, who as a high school student was featured in the documentary film “The Education of Shelby Knox” in which she criticized the abstinence-only program in her school. Knox argues that abstinence-only programs are ineffective and “commonly use messages of fear and shame, present gender stereotypes as scientific fact, and impart confusing, incomplete, or plainly inaccurate information about condoms and other forms of contraception.”
PRO: STANLEY WEED
Characteristics of Successful Programs
Do all abstinence programs work? Of course not. We have also evaluated programs that do not work, or do not work well, or that do not work for all of the program participants. (This is more common for programs in the early stages of development and implementation, when they have not had the value of data to provide direction for program modification and improvement.) The real question we need to be asking then is not “Do they work?” but rather “Which ones work, for whom, and under what conditions?” Answers to these questions will move us further down an effective policy road than the simplistic “Do they work?” In our studies of abstinence-centered interventions for teens, clear patterns of program effectiveness have emerged. Successful programs usually share the following characteristics:
1. Adequate Dosage. Successful program attend to the critical factor of adequate “dosage,” and deliver that dosage on an effective schedule.
2. Mediating Factors. They go beyond the simplistic notion of “providing information” (even if it is medically accurate) and effectively address the key predictors of adolescent sexual risk behavior that are amenable to intervention.
3. Messenger. They give as much attention to the messenger as they do to the message. Effective teachers make more of a difference in program outcomes than do printed materials. These teachers engage students in the learning process, gain their respect, model their message, and believe in their ability to impact students.
4. Evaluation. Effective programs conduct quality program evaluation, and take seriously the lessons learned, especially those that identify program shortcomings.
Medical accuracy is a reasonable standard, and it ought to be applied to all sex education material. If we were to scrutinize all curricula in the broad field of sex education, we would find a plethora of outdated, inaccurate, or misleading information. An example of the latter comes from the research vs. public policy on human papillomavirus (HPV), the STD that is responsible for more than 90% of all cervical cancer in women (Bosch, 1995). More women die annually in the U.S. from cervical cancer than die of AIDS spread through sexual contact. As early as 1999, the CDC knew that HPV was directly linked to cancer, and that condom use was not an effective barrier to transmission of the virus, but chose not to warn the public about this because they felt it would be counterproductive to condom use that could still provide some protection for other STDs. At the same time some abstinence education programs were criticized for stressing these facts about HPV. I think all would agree that adolescents and their parents should be given accurate information about sexuality and that programs should use the latest and best scientific information available.
Equally important, however, is this well established fact: adolescent behavior is not primarily driven by their information system. There are several factors that drive behavior that are far more important and potent than information—no matter how accurate it is. The key predictors of risk behavior do not include medical facts about physiology, biology, and the risks of unprotected sex. These of course can be covered, and should be covered accurately. But we cannot count on medical information and risk assessment to have a major impact on adolescent risk behavior. The recent research on the adolescent brain and its development has helped explain this phenomenon, which flies in the face of conventional wisdom. It is important for program developers to realize that an emphasis on information is not an effective strategy for changing adolescent behavior.
Changing Behavior—Consistent Condom Use and Abstinence
The National Center for Health Statistics reported that only about 28% of sexually active female teens report consistent condom use over a one-year period. For sexually active boys the number is 47%. As has been illustrated above, programmatic attempts to increase CCU [i.e., consistent condom use] and maintain it among teens have shown little evidence of success, causing us to look for reasons why.
Medical and social science research may suggest some causes. At least three factors seem plausible. First, there appears to be a disconnect between the sex education strategy of providing teens with contraceptive and STD information for responsible decision making (even if it is medically accurate), and the developmental capacity of the teen brain. According to the latest medical research, the areas of the brain responsible for impulse control, risk assessment, anticipation of consequences, forward planning, and reasoned judgment—all of which are important for consistent correct condom use—are not fully developed until after the teen years, in the early twenties. In other words, as our legal system recognizes, adolescents are not fully capable of responsible decision-making. Those of us who have raised teenagers can relate to this fact. Their developmental schedule mitigates against consistent condom use. As one frustrated condom-centered sex education high school teacher told me “They can’t even remember to bring a pencil to class. How will they be good condom users?” Moreover, logical, foresighted thinking is even less likely to occur in the moment of passion. This is illustrated by two studies of teen girls, one which found that being diagnosed with an STD did not lower their sexual risk-taking behavior and the other that reported that those who were inconsistent condom users actually had better knowledge about HIV risk than those who were consistent condom users.
Second, it seems likely that the nature of teen relationships affects condom use. Several studies have shown that requesting condom use is sometimes interpreted as a lack of love, intimacy, commitment, and trust in a relationship, especially by females. Given teen’s inherent need to be accepted and to be loved, it may be difficult to pull out a condom and give the implicit message that “I don’t trust you to be free of disease, nor can you trust me. But since this is just a casual hook-up with no commitment or loyalty expected, let’s just enjoy the moment and do it more safely.” Teen relationships can be shallow, but most are not, and most are looking for something more meaningful. Thus, sex without a condom may be more compatible with teens’ social and emotional needs, outweighing the risks it presents.
A third obstacle to teen condom use may be that those who are at greatest risk (teen girls), are often those with the least amount of control in the relationship. And, relationship control/power has been shown to be related to condom use. Teen girls are often outweighed and easily overpowered by their male counterparts, and may be more likely to be seeking love and closeness. Boys are typically more assertive and driven to seek physical pleasure, and may see condom use as an obstacle to that goal.
Admittedly, there are also barriers to promoting abstinence as a lifestyle, especially given the cultural context in which adolescents live. Movies, music, peers, Internet pornography, and other influences are constantly pushing a sexual message. Many teens have and will succumb to that influence. Abstinence education clearly faces an uphill battle. In spite of that, the studies reviewed here today showed more positive outcomes for increased abstinence (14 total) than for all of the other outcomes combined (4 total). Recall that of the 34 comprehensive sex education programs that fit the comparability categories, 9 reported significant improvement in abstinence, while none reported an increase in consistent condom use. And, this was in programs where abstinence was not the central message. The national trends in teen sexual activity show a consistent decline in sexual intercourse over the past ten years. Apparently, this is a behavior that is amenable to change. Dr. Kirby’s statement that “it may actually be easier to delay the onset of intercourse than to increase contraceptive practice” is bearing out. That change in behavior corresponds with the decline in teen pregnancy, teen births, and teen abortions—an encouraging trend by anyone’s standards. Although not easy to achieve, it appears that abstinence-centered programs that are well designed and implemented can affect that behavior.
Why Not “Abstinence-Plus”?
Why not have abstinence-centered and condom-centered education in the same program? This is the argument made by proponents of what is called “abstinence-plus” sex education programs, suggesting that both abstinence and condom education should occur in the same program. There are several reasons why this is problematic.
1. Diluted Message. A strong abstinence message that is not diluted with lessons about condom use and negotiation is necessary to provide teens the strong support they need to “say no” to the pervasive cultural message that teen sex is normal, acceptable, and admirable behavior. Most “comprehensive” or “abstinence-plus” programs are condom-driven, with abstinence as a minor part of the message. The proponents of this approach often are not committed to abstinence and give it only passing coverage in the curriculum, with most content focused on condom acquisition, condom negotiation with partners, and proper condom use. For example, the SIECUS website recommends 37 topics for sexuality education curriculum content—abstinence is only one of the topics. And, an analysis of 10 popular comprehensive programs found condom use was mentioned 9 times as often as abstinence. These two strategies are based on very different assumptions and premises about human sexuality, healthy relationships, and family formation. It is difficult to see how these two different ideologies and philosophies could be combined.
2. Separation of Messages. Separating these approaches is consistent with the wishes of most American parents. In 3 national polls, a majority of American parents (70% to 90%) want a strong abstinence message given to teens. More than 90% believe that adolescents should not become sexually active and 67% say it is morally wrong for them to do so. In fact, 67% of teens who had already initiated sex expressed regret for doing so and the number was even higher for girls (77%). Most parents also favor the separation of abstinence education from information about sexual biology and risk prevention. Fewer than half (40%) think that abstinence and contraception should be taught in the same classroom. Most parents prefer that biological facts about contraception either be taught in a health curriculum separate from the abstinence program (56%) and some prefer it not be taught at all (22%).
3. Withholding Information. Comprehensive sex education programs are reluctant to give teens accurate information about the limitations of condom protection. This is an important part of abstinence education and consistent with the wishes of American parents. While a majority of parents believe teens should have information about risk reduction, 76% oppose withholding from teens medically accurate information about the limits of condoms in preventing STDs.
4. Explicit Content. Many parents oppose the explicit content found in many comprehensive sexuality programs. It is true that many parents respond favorably when asked whether teens should be given information about how to obtain and use condoms—39% and 58% in one poll, and 78% and 81% in another. However, when asked to respond to the actual content of popular comprehensive sex education curriculum materials, the large majority of parents (70% to 90%) opposed the explicit information they contained about sexual practices, condom application and use, and masturbation. Most importantly, only 7% of parents want sex education to convey the message that “it’s okay for teens…to engage in sexual intercourse as long as they use a condom.” Parents should be able to have their children “opt out” of this kind of program content without also having to forego the abstinence message imbedded somewhere in it.
5. “Plus” is Not Effective. Comprehensive or abstinence-plus education has not been shown to be effective at increasing teen CCU, which is the means through which condoms provide teens with partial protection from STDs. We might ask the opponents of abstinence-centered education why, if abstinence does not work, do they want to add it to a condom-centered education? And conversely, if abstinence education does work, why should abstinence programs add the thing that is not working? Recall that in the context of the three categories for comparability of evidence, there were no programs that had an increase in consistent condom use. Until that outcome is attained in risk reduction prevention programs, considering it as a supplement to abstinence would be a flawed strategy.
6. Contraceptive Availability Elsewhere. Risk reduction methods for sexually active teens, such as condom application, may best be taught in a separate health class, apart from the abstinence message. It is there, that sexually active teens can be referred to nearby clinics for one-on-one health care and prevention counseling. An estimated 68% of schools in the U.S. already have some form of comprehensive sex education, while only one-fourth receive an abstinence-centered program of some type. Abstinence education funding has not depleted the funding for comprehensive sex education, on the contrary, its’ funding streams are smaller than what is available for comprehensive sex.
The research results presented here indicate that risk avoidance can be a viable strategy for protecting youth from all of the negative consequences of teen sexual activity. That is, emerging evidence supports the notion that abstinence-centered strategies, if well-designed and implemented, can significantly and substantially reduce teen sexual initiation for periods of 1 to 2 years and thereby may positively impact the health of American adolescents. When measured using comparable criteria, comprehensive sexuality education strategies (risk reduction) show little evidence for success at achieving the crucial outcomes of consistent condom use, reduced pregnancy, and STD rates. This pattern of data argues for continued support and expansion of abstinence-centered education, especially considering the regret that most sexually active teens express for becoming sexually active and the support that most parents show for programs that help their teens avoid sexual activity and its hazards.
CONTRA: SHELBY KNOX
Purity Pledges: Efficacy and Side-Effects
I was born and raised in a Southern Baptist family in Lubbock, Texas – a city with some of the highest rates of teen pregnancy and sexually transmitted infections in the nation. At fifteen, in accordance with my faith, I took a virginity pledge as part of a ceremony at my church. Even though I was well past puberty, I still held an embarrassingly vague notion of the physiological definition of the act we were told to avoid. The pastor reiterated throughout the virginity pledge discussion how disappointed our parents, church, and future spouse would be if we relinquished our virginity before marriage. Some of my friends already intimately understood this pressure – they were having sex, but taking the pledge to appease their suspicious parents or to inoculate themselves against the slurs reserved for those whose refusal to pledge was seen as a de facto admission of sexual sin.
While purity pledges were first the domain of religious abstinence-only programs presented in churches, they have gained popularity in secular, school-based abstinence-only programs in recent years. In fact, many of the programs participating in the evaluation of federally funded Title V abstinence-only-until-marriage programs contain some version of a virginity pledge. New research has shown that this component is not only ineffective, but may actually be harmful because they undermine contraceptive use and inadvertently promote risky oral and anal sex among teens who see these activities as a “loophole” in their pledge.
A study done on the virginity pledges found that teenagers who sign a pledge do delay sexual activity eighteen months longer than their peers who did not pledge – far short of marriage – but are one-third less likely to use contraception upon initiating sexual activity than students who did not pledge. Students who pledged also have the same rates of sexually transmitted infections as their non-pledging peers, but are less likely to seek testing or treatment for a sexually transmitted infection. In addition, male and female pledgers are six times more likely to engage in oral sex than peers who have not pledged, and male pledgers are four times more likely to engage in anal sex than their non-pledging contemporaries.
Abstinence-Only Programming in the Public Schools: What’s Actually Being Taught?
The same pastor who officiated at the religious pledge ceremony also presented a secularized abstinence-only program to junior high and high school students in my school district. Although he still refused to give an exact definition of sex in this setting, he did go into detail about the ineffectiveness of condoms, explaining in graphic detail, and with even more graphic pictures, the sexually transmitted infections students could get if we trusted our health to a “flimsy piece of latex.” We were all too intimidated or embarrassed to ask for clarification, but it seemed as if sex with a condom was equivalent to sex without one.
Another demonstration left little doubt as to our worth as a future spouse or partner if we were to engage in sex before marriage. He pulled an often squirming and reluctant and always female volunteer onto the stage, took out a toothbrush that looked like it had been used to scrub toilets and asked if she would brush her teeth with it. When she predictably refused, he pulled out another toothbrush, this one pristine in its original box, and asked her if she would brush her teeth with that one. When she answered in the affirmative, he turned to the assembly and said, “If you have sex before marriage, you are the dirty toothbrush.”
Federally funded abstinence-only-until-marriage programs commonly use messages of fear and shame, present gender stereotypes as scientific fact, and impart confusing, incomplete, or plainly inaccurate information about condoms and other forms of contraception. In fact, a 2004 survey conducted by the minority staff of this Committee found that 11 of the 13 federally funded abstinence-only-until-marriage programs reviewed contained “false, misleading, or distorted information.”
Sexuality Education: What Works? What Doesn’t?
When I got to high school, I realized many of my peers were struggling with the same questions about sex, relationships, and sexuality as I was – and most were not abstaining from sex. The statistics became alarmingly personal when the girl who sat next to me in math class got pregnant. She told me her boyfriend had said she couldn’t get pregnant the first time she had sex – her growing belly was the result of that first and only time. I watched as her pregnancy advanced and she endured the cruelty of “righteous” high school students in the form of whispered insults and disgusted stares. One day she simply didn’t come back to school.
Another friend had a scare after both condoms he and his partner were using broke – they had figured, wrongly, that if one wouldn’t work, two might do the trick. If either of these two friends had received even the most basic sex education instead of abstinence-only-until-marriage programs that withheld information and vilified condoms as ineffective, they would have been able to make better and more informed decisions. Knowledge is power. The ignorance promoted by abstinence-only-until-marriage programs is a recipe for disaster that plays out everyday in communities like mine.
I believed in abstinence in a religious sense, but it was clear that abstinence-only as a policy for students who simply were not abstaining was dangerous. Even if we did wait until marriage, we still lacked a basic understanding of our bodies, reproduction and how to prevent pregnancy as well as a long list of sexually transmitted infections, and the skills to navigate conversations about sex and protection.
Studies have repeatedly shown abstinence-only-until-marriage curricula to be ineffective as well as inaccurate. A federally funded evaluation of abstinence-only-until-marriage programs conducted by Mathematica Policy Research and released in 2007 showed the programs had little effect on teen sexual behavior. Another 2007 study commissioned by the National Campaign to Prevent Teen and Unplanned Pregnancy came to an identical conclusion. And in 2006, the Society for Adolescent Medicine released a paper that found “the efficacy of abstinence-only interventions may approach zero.”
Comprehensive sex education programs, on the other hand, include age-appropriate, medically accurate information on a broad set of topics related to sexuality including human development, relationships, decision-making, abstinence, contraception, and disease prevention. And, unlike abstinence-only-until-marriage programs, they actually work: A study released in March 2008 in the Journal of Adolescent Health found that teens receiving comprehensive sex education had lower rates of teen pregnancy than peers who received either abstinence-only or nothing at all. Parents also overwhelmingly support comprehensive sexuality education. A study featured in the Journal of Adolescent Health found that 89% of parents surveyed favored teaching about abstinence and contraception.
Conclusion: Eliminate Funding for Abstinence-Only-Until-Marriage Programs
It is a perilous and confusing time to be young in the United States: just this year the CDC announced that teen birth rates are up for the first time in sixteen years and that one in four teen girls has a sexually transmitted infection. Although the research has yet to be completed on the male half of the population, it’s clear that something must be done to reverse these startling trends.
Abstinence works. Abstinence-only-until-marriage does not. In fact, studies have shown a more comprehensive approach to sex education that gives us strong messages about abstinence and information about condoms and contraception, do a better job of helping young people abstain than do abstinence-only-until-marriage programs. So why is it that there is not a single federal dollar dedicated to a comprehensive approach while more than a billion has been spent on abstinence-only-until-marriage?
As a young person with firsthand experience about the misinformation, shame, guilt, and intolerance propagated by these programs, I urge you to eliminate funding for abstinence-only-until-marriage programs and instead to allocate those funds to comprehensive, medically accurate sex education that provides young people with the tools they need to make responsible, informed decisions about their sexual health.
Once again, it was an honor to speak to you today. I will be happy to answer any questions at the appropriate time.
Source: Stan E. Weed and Shelby Knox, U.S. HR Committee on Oversight and Government Reform hearing, Assessing the Evidence of Domestic Abstinence-Only Programs (2008).
Questions for Review
1. According to Stanley Weed, what are the four characteristics of a successful abstinence-only program?
2. According to Weed, what are the three reasons why adolescents don’t consistently use condoms?
3. What is Weed’s objection to “abstinence plus” programs?
4. According to Shelby Knox, what are some problems with purity pledges?
5. According to Knox, what are some of the problematic things being taught in abstinence-only programs?
Questions for Analysis
1. Both Weed and Knox draw on studies for their respective views. Are any of those studies inconsistent with each other and, if so, what might be the causes of those inconsistencies?
2. Weed’s and Knox’s essays were presented as testimonies in a Congressional hearing to help determine whether the government should continue funding abstinence-only programs through tax dollars. What factors should influence the government’s decision, and which factors would be irrelevant to the government’s decision?
3. One way of looking at abstinence-only programs is that they are more interested in pushing a moral agenda than they are in offering effective solutions to the problems of teen pregnancy and STDs. Is this a fair assessment?
4. Does the comprehensive approach to sex education have a hidden moral agenda, and, if so, what is it?
5. Should morality play any role in public policy decisions that deal with problems of teen pregnancy and STDs?
6. In creating a public policy on sex education, should the opinions of parents determine whether their local school adopts a comprehensive or abstinence-only approach?