The Big Idea: How Sex Became a Civil Liberty

What’s your big idea?

Sexual rights are new.

Indeed, in the past 100 years, United States sex laws have prohibited individuals from lecturing about birth control, jailed them for practicing nudism, prevented them from purchasing sexually explicit novels, prosecuted them for using contraceptives, criminalized their efforts to obtain abortions, and imprisoned them for engaging in oral sex.

But laws and popular opinions about sex have changed dramatically.

Today, most Americans consider sex a private matter—an intimate area of life that should not be governed by law or regulated by public institutions.

How did we get from there, a time when sexual behavior and expression seemed irrelevant to the U.S. Constitution—to here, an era in which most people assume that the Constitution protects a wide range of sexual expression and behavior? This is my big idea in How Sex Became a Civil Liberty: We made it up. And by rooting sexual rights in a particular understanding of civil liberties, we have privileged the right to sexual expression over freedom from it.

How and why did sex become a civil liberty?

Civil libertarians have played a major role in defining sexual rights and shaping them into civil liberties. This is especially true of individuals who have led the American Civil Liberties Union, founded in 1920. Early ACLU leaders, including Roger Baldwin, Crystal Eastman, Mary Ware Dennett, Elmer Rice, and others, lived and worked in the bohemian environment of New York City’s Greenwich Village. There they participated in the sexual experimentation for which the Village would become legendary. As birth-control activists, “free lovers,” sex educators, nudists, and playwrights, these early civil libertarians took obscenity law personally.

One of their most stealthy and far-reaching accomplishments was to reinvent the First Amendment right to freedom of speech—a right long recognized as reserved for producers of speech (though not necessarily speech of a sexual nature). Beginning in the 1940s, however, ACLU leaders stretched the amendment into a protection for consumers of speech. They formed right-to-read committees around the nation, persuaded individual citizens to demand the right to “read, see, and hear,” and filed First Amendment lawsuits on behalf of consumers against local officials and pressure groups. By the end of the 1960s, courts around the country were persuaded, and consumers’ rights became established under the First Amendment of the Constitution.

Rights to sexual behavior would not be far behind.

Many ACLU attorneys also represented organizations like Planned Parenthood and Alfred Kinsey’s Institute for Sex Research. Working with such groups inspired them to consider how laws against sexual behavior—using birth control, performing abortions, and engaging in nonmarital sexual relationships—might implicate civil liberties. The right to privacy that they crafted laid the constitutional foundation for rights to birth control and abortion in Griswold v. Connecticut (1965) and Roe v. Wade (1973).

Sexual privacy initially protected only heterosexuals. But by the late 1960s, ACLU attorneys used it to challenge laws against sodomy. Their efforts laid essential groundwork for Lawrence v. Texas (2003), the Supreme Court case that overturned sodomy laws around the country.

What sort of culture has sexual civil liberties created?

Sexual civil liberties have emerged from evolving rights to sexual privacy, but the expanding First Amendment has left sex anything but private. Enhancing constitutional protections for sexual behavior while lifting prohibitions on sexual display has erased longstanding borders between our public and private lives. As a result, we can legally engage in oral sex with anyone we want in the privacy of our own homes. But when we enter public spaces—or invite media into our living rooms—we might involuntarily encounter others doing that very thing. The ACLU helped to constitutionalize this blurring of boundaries between public and private by easing access to sexual expression of all kinds.

Thus, we now inhabit a culture of sexual civil liberties that honors, with constitutional guarantees, particular rights to freedom of speech and sexual privacy—including, within certain limits, access to birth control, abortion, sexually explicit material, and private, consensual sexual relationships between adults. But it is a culture that leaves to legislative and regulatory whim the rights of adults to escape and to protect their children from unwanted sexual expression and attention—from sexually provocative advertisements and broadcast media to sexual harassment and rape. Disagreements over these issues have given rise to ongoing “culture wars” over sex that seem to pit diametrically opposed groups against each other.

But we have also achieved a broad consensus on the sanctity of freedom of speech and sexual privacy—concepts the ACLU moved to the very core of American constitutionalism as well as into popular consciousness. To be sure, disagreements about the parameters of free speech and sexual privacy abound. But the fact that people who disagree on ends share a commitment to means and employ a common civil-liberties idiom speaks to the exalted status that freedom of speech and sexual privacy have achieved. The question now is, Can the civil-liberties framework that has so effectively advanced freedom to engage in and consume sexual expression accommodate a robust form of privacy and consumer rights that recognizes freedom from sexual expression?