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Time for courts and us to talk about sex

Emma Thompson recently declared that dancing with Prince Charles is better. Hunter S. Thompson wrote a book about how politics is better. Google lists thousands of cake recipes claiming to be better.

But even if we can't quite agree on what's better than sex, the comparison suggests we take for granted that sex can be pretty good.

Which makes it all the more puzzling that our courts and legislatures are still strangely squeamish about sexual pleasure, tending to treat it as a topic to be avoided or an immoral indulgence the state should prevent. When they address sex, they often reveal their embarrassment by using Victorian-sounding euphemisms such as "an intimate relation of husband and wife" or awkwardly clinical terms such as "the physical act."

Of course, judges and politicians have made great progress as far as attitudes toward the gay community and marriage equality. Just this year, the Supreme Court struck down a ban on the federal recognition of same-sex marriages and the number of states recognizing marriage equality more than doubled. But these moves don't further sexual freedom in itself. Rather, antiquated attitudes about sexual pleasure have allowed for the persistence of bad laws that touch on everything from free speech to how we define and punish rape.

To the extent that courts and legislatures have shown any appreciation for the value of sex, it's usually in the context of more traditionally acceptable goals. The Supreme Court, for example, is downright reverent toward sex as a component of strong marriages and successful procreation.

In Griswold vs. Connecticut (1964), the court held that a law banning the use of contraceptives unconstitutionally infringed on the right to marital privacy. But the court made clear that it was primarily interested in protecting the "sacred precincts of marital bedrooms," not the sex itself.

Even Lawrence vs. Texas (2003), which struck down a sodomy ban and is widely considered a landmark case for sexual freedom, sidestepped any discussion of sexual pleasure. The opinion focused on the value of sex in committed relationships. "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 court wrote. It was an odd fixation for a case that started with two men having casual sex. It's admirable that the court acknowledged that sex isn't always just about pleasure. But it's disappointing that the court seemed to forget that sex can ever be just about pleasure.

Real progress toward sexual freedom would involve courts and legislatures recognizing that there is value in sexual pleasure. And that would force judges and politicians to rethink the logic of various laws. Sex-toy bans would have to go. Even consensual spanking can lead to an assault or battery charge in most states — a quaint policy now that everyone's mother has a copy of Fifty Shades of Grey. Yet a world that values sexual pleasure would have to explain why voluntary spanking is regulated any differently than voluntary participation in contact sports or cosmetic surgery, which also bring risks along with perceived benefits.

Recognizing the value of sexual pleasure doesn't mean we have to value it above everything else — that there is nothing better than sex. We regulate other things that bring people pleasure all the time. It would simply require us to regulate it more honestly. It would force us to have more informed discussions about legal issues ranging from free speech to consent in the bedroom. I'd like to think that courts, legislatures and voters are up to the challenge. So, let's talk about sex.

Margo Kaplan is an assistant professor of law at Rutgers School of Law-Camden. Her article "Sex-Positive Law" will appear in the New York University Law Review. © 2013 Washington Post

Time for courts and us to talk about sex 11/27/13 [Last modified: Friday, November 29, 2013 1:46pm]

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