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David N. Mayer

 

In Defense of Sex - May 16, 2005

 

In Defense of Sex

 

 

           As the lyrics to a song from one of my favorite musicals, Lerner & Loewe’s Camelot, declare:

 

            It’s May, it’s May, the lusty month of May,  That lovely month when everyone goes blissfully astray;

            It’s here, it’s here, that shocking time of year  When tons of wicked little thoughts merrily appear;

            It’s May, it’s May, that gorgeous holiday  When every maiden itches for fun – wholesome or “un”

            . . .

            It’s May, it’s May, the lovely month of May,  That darling month when everyone throws self-control away;

            It’s time to do a wretched thing or two   And try to make each day one you’ll always rue.

            It’s May, it’s May, the month of “Yes, you may,”  A time for every frivolous whim – proper or “im”

            It’s wild!  It’s gay!  A libelous display.  

            The birds and bees, with all of their vast amorous past,  Gaze at the human race aghast!

            The lusty month of May!

  

When better than in the “lusty month” of May, to reflect upon sex and human sexuality?  Springtime traditionally has been associated, in Western culture, with sexual themes; it is the time of year “when a young man’s fancy turns to love” – or “when it turns to fancy young men,” as Oscar Wilde might have said, in a variant upon the old saying. 

It must be emphasized that for human beings, sex is not merely about procreation.  That’s arguably its least important function.  Borrowing from the lyrics of the Camelot song, if we can imagine “the birds and the bees” gazing at human sexual activities “aghast,” it’s because humans do not engage in sex merely for biological reproduction.  Rather, they do it for their own, selfish individual happiness, pleasure, and well-being.  Unlike animals in rut, responding to biological programming for the perpetuation of their species, humans engage with one another in various forms of sexual acts, for various reasons – all having to do with expressing their own individuality. 

To understand what makes human sexuality so unique we must first recognize some basic truths about the nature of human beings.  As an essential part of human nature, sex ought to be viewed as a good, natural, and hence legitimate aspect of individuals’ lives.  Human beings are unique among living creatures in having as their essential attributes both sociability and individuality.  It’s true, as many philosophical writers have noted for centuries (indeed, for millennia), that humans are “social”: their relationships with one another are necessary parts of their lives, and among those relationships – friendships, family ties, and romantic relationships – are relationships that involve sex (not just love, but also the physical acts that are sexual).  Humans – unlike creatures such as ants or bees or wolves – are not only social, however; they are also individualistic, meaning that each human is a unique being, with his or her own identifying attributes, desires, habits, traits, and values.  That’s because humans are both rational and volitional:  they are creatures capable of thought – not just perceptual awareness, but full, conceptual reasoning – and free to make their own choices, not only with regard to their actions but also their thoughts (including their freedom to choose even what they believe).  What blends the two unique attributes of humanity – what combines both the social and the individual aspects of what it is to be human – is sex. 

Sexual relationships, of all forms – ranging from casual, merely physical encounters, “one-night stands,” quasi-romantic affairs, to long-term, monogamous romantic relationships – not only provide persons with social interactions but also help fulfill an individual’s psychological needs, by providing something necessary to an individual’s well-being and happiness.  Nathaniel Branden has called it the “Principle of Psychological Visibility,” and he has defined visibility as “the desire to perceive our self as an entity in reality, to experience the perspective of objectivity through and by means of the reaction of other human beings” (Branden, The Psychology of Romantic Love (Bantam Books, 1980), pp. 77-78).  In other words, humans desire to see themselves as others see them, to be conscious of themselves as mirrored in the reactions of others to them.    One can obtain psychological visibility – seeing oneself, in effect, as mirrored in the eyes of others – through a variety of interactions: companionship, friendship, and love.  It is in sexual relationships, however, that visibility can be experienced most intensely, on the emotional level; that’s simply because of the physiological effects of the physical acts involved in sex (or sexual love-making).   

Branden regards romantic love as the most satisfying way of fulfilling the psychological need for companionship, for the physical response – the sexual response – of one’s romantic partner provides one with the best, most honest and true, form of visibility:  it comes from someone whom we love, whom we admire, respect, and value, and who reciprocates these feelings for us; and hence, their response to us – based on these mutual feelings – gives us the most genuine affirmation of our self-worth.  But even sexual relationships far less than long-term, monogamous relationships – including the “quickies” and “one-night stands” mentioned above – can provide a “pseudo-visibility.”  For persons who, for whatever reason, are unable to form long-term romantic relationships and are sexually promiscuous, the sex acts themselves help meet (albeit quite imperfectly) this psychological need.  (Even masturbation can provide not only the physical gratification of pleasuring oneself but also a form of pseudo-visibility, if one has enough imagination, aided perhaps by erotica and/or sex toys.)   

Branden’s theories about romantic love help explain a great deal about the human desire for companionship, in all its forms, and specifically about the importance of romantic relationships; but I believe Branden’s writings tell only part of the story why sex and sexual relationships are so important to human nature.  Branden stresses the importance of shared values – having a partner one admires, respects, and values because the two of you share the same fundamental values, the same basic “sense of life” (as Ayn Rand called it, in referring to the sum-total of one’s response to the world) – but as other psychologists and philosophers have theorized, complementary differences are also important in explaining sexual attraction.  C. A. Tripp has maintained that complementation – a person “importing” what is needed (or believed to be needed) from a partner, while “exporting” what the partner needs – is a basic mechanism in sexual attraction for both heterosexuals and homosexuals (Tripp, The Homosexual Matrix, 2d ed. (New American Library, 1987), pp. 51-52).  Indeed, although Tripp’s book focuses primarily on homosexuality, its title is a bit misleading, for it is just as informative about the origins of heterosexual attraction.  According to Tripp’s theory, whether applied to opposite-sex or same-sex couples, the keys to sexual attraction are the differences that partners perceive between each other; hence, their love-making becomes the vehicle for “importing” or “exporting” these differences, allowing each partner to complement his or her own traits and thus to become, in effect, a more “complete” person.  (With regard to homosexuality, Tripp explains his principle of complementation by emphasizing the heightened sense of same-sex attributes, whether masculine or feminine, that homosexual persons have.)  The weakness in this explanation, by itself, is that it gives insufficient attention to what Branden calls visibility:  Tripp’s theory alone, like Branden’s alone, tells only part of the story about the psychological roots of human sexual attraction.  Taken together, however, the two theories give a plausible account:  when two people (whether of the same or opposite sex) are romantically or sexually attracted to one another, their attraction is based on both shared values (for visibility to work, one must truly admire and respect one’s partner) and on complementary differences.  

C. A. Tripp’s even-handed approach with regard to sexual orientation – treating homosexuality and heterosexuality as more or less equally valid variants of human sexuality – is especially refreshing and, in my view, represents the mature attitude toward sex.  Persons who regard heterosexuality as the only valid, “normal” or “healthy,” orientation are not only narrow-minded but also ignorant and intolerant.  (I use the terms ignorant and intolerant as not mere pejoratives but as literally true.  “Homophobia” isn’t a concept invented by the “politically correct” police:  it’s a real phenomenon, for many people – for a variety of reasons – have an irrational fear and/or hatred of homosexuality, rooted partly in a lack of understanding of something that’s not familiar to them or in strongly-held biases or prejudices.)  Modern studies show that people vary considerably in their sexual orientation:  some are exclusively homosexual, some are predominantly homosexual but with some bisexuality, some are genuinely bisexual, some are predominantly heterosexual with some bisexuality, and some are exclusively heterosexual.  Scientists and other scholars of human sexuality may disagree about demographics (estimates of the percentage of the population who are exclusively homosexual, for example, have varied from 2% to 10%); they also continue to disagree about the extent to which sexual orientation is determined by biological or cultural, or environmental, factors – the age-old “nature or nuture” debate.  With regard to the right of an individual to enjoy sexual freedom – the critical issue, as discussed below – however, it really does not matter why a given  person is homosexual, heterosexual, or bisexual; all that matters is that, for whatever reason, a person has a certain sexual orientation and ought therefore to have the same freedom to act on it, including the freedom to seek out satisfying sexual relationships, as everyone else. 

Given that sexuality is an inherent part of human nature – not simply a part of human life but an essential aspect of each individual’s identity – it follows, logically, that sexual freedom ought to be regarded as among the fundamental rights of each person.  The three fundamental rights mentioned in the Declaration of Independence – the natural and inalienable rights of life, liberty, and the pursuit of happiness – properly understood, all entail the freedom of each human being to be sexual.  What does it mean to “be sexual,” and of what is true sexual freedom comprised?  It’s the freedom to engage in sexual acts, whether alone or with one or more partners (provided they are consenting adults), and to form sexual relationships, of whatever kind each individual finds satisfying:  all the way from brief encounters (whether anonymous sex with strangers, visits to strip clubs or “nudie” bars, or appointments with prostitutes), to affairs (“flings” with fuck-buddies or mistresses), all the way to long-term monogamous relationships, either in or outside the legal bounds of marriage.  These are all manifestations of the sexual component of each individual’s fundamental rights to life (which means more than mere biological survival – it means the right to fully flourish as a human being), to liberty (which means more than freedom from physical restraint – it means the freedom to act as one chooses), and to the pursuit of happiness (which means the right of each individual to pursue those activities he or she believes necessary to his or her own individual happiness). 

Sexual freedom in all its manifestations ought to be protected, by law, in free societies – that is, in societies with limited government that protect individuals’ natural rights.  The only limitation the coercive power of government ought to put on sexual freedom is the same limitation that it legitimately places on all other aspects of liberty rights:  as libertarian scholars have argued (whether they call it “the no-harm principle” or “the law of equal freedom”), one person’s right to liberty ends where another person’s fundamental rights (to life, liberty, or the pursuit of happiness) begins.   No one may claim, as part of their natural right to liberty, the freedom to harm another person.  (As John Locke argued over 300 years ago in his Second Treatise on Government, violations of other persons’ natural rights are contrary to the law of nature, which is reason.)   Just as no one can legitimately claim the right to be free to murder, assault, or rob another person, no one can legitimately claim that his or her sexual freedom includes rape or coercion, in any form.  (Indeed, I think researchers who classify rape as an act of violence rather than an act of sex are right:  rape, although apparently a sexual act, really is a violent act, a true crime committed against another person.  It’s no more legitimately a part of sexual freedom than, say, a fraudulent sales transaction is a part of economic freedom.)  Similarly, the freedom to engage in sexual acts, of all forms, may legitimately be restricted to adults (that is, to persons above the age of legal consent); and so, no one can claim as a legitimate part of their right to sexual freedom the abuse of children.  (Like rape, sexual acts with minors are not really sexual acts, properly considered, but are rather acts of violence, committed against a person who is legally incapable of giving consent; they are, quite literally, acts of child abuse.) 

Other than these limitations necessary to protect everyone’s rights, properly considered, however, government ought not to interfere with individuals’ sexual freedom.  The freedom to be sexual is the birthright of all Americans – it ought to be seen as American as “Mom,” “apple pie,” Fourth of July fireworks, or a two-car garage – for, as noted above, it’s among the essential rights protected by the Declaration of Independence.   Because the United States of America is unique among the nations of the world in being explicitly founded on the protection of individual rights – its governments, state and federal, owe their legitimacy to their protection of each individual’s fundamental rights – logically, it ought to be the freest nation on earth, with regard to sexual freedom as well as other essential aspects of freedom (religious freedom, freedom of speech and press, economic freedom, property rights, and other rights of personal autonomy). 

Unfortunately, the reality is that American society (including our legal system) has failed to live up to the promise of the American Revolution and our founding documents, including both the Declaration of Independence and the Constitution.  Just as we have imperfectly protected other important aspects of individual rights (property rights and economic freedom particularly come to mind), so too have we failed to protect sexual freedom as far as our founding principles ought to lead.  Rather than being one of the freest nations on earth, sexually, America is among the most repressive:  not nearly as bad as some Islamic nations, for example, but certainly far more restrictive on sexual freedom than many European nations.  (Interestingly, there is a rough reverse correlation between economic freedom, in some respects, and sexual freedom:  some of the most socialistic welfare states in Europe, such as the Scandinavian countries, also have some of the most free, open environments with regard to human sexuality.) 

Why does America fall so far short of the promise of its founding principles, with regard to sexual freedom?  The full answer is a long, complex story – the subject of a book-length study, which I someday might write – but, for now, a few key factors in the explanation can be identified.  Philosophically, much of the progress made in the 18th century because of the pro-reason, pro-individualism movement known as the Enlightenment (the philosophical tradition in which America was founded) was lost in the 19th century as the various elements of the Counter-Enlightenment became more important in American thought and culture.  Among these were philosophical skepticism (the precursors to today’s “postmodernism,” as my friend Stephen Hicks’ brilliant new book, Explaining Postmodernism (Scholargy Publishing, 2004) shows); the 19th-century revival of religion, especially with the growing importance of fundamentalist sects within Protestant Christianity; and the continuing influence of British culture on America during the Victorian age.  The latter two phenomena deserve some additional comments. 

The Judeo-Christian tradition’s psychologically unhealthy teachings regarding sex are among the “Sins of Christianity” that George Smith identifies in Chapter 12 of his book Atheism: The Case Against God (Prometheus Books, 1979).  As Smith observes, 

“It is not accidental that Christianity is profoundly anti-pleasure, especially in the area of sex; this bias serves a specific function.  Pleasure is the fuel of life, and sexual pleasure is the most intense form of pleasure that man can experience.  To deny oneself pleasure, or to convince oneself that pleasure is evil, is to produce frustration and anxiety and thereby become potential material for salvation.

 

“Christianity cannot erase man’s need for pleasure, nor can it eradicate the various sources of pleasure.  What it can do, however, and what it has been extremely effective in accomplishing, is to inculcate guilt in connection with pleasure.  The pursuit of pleasure, when accompanied by guilt, becomes a means of perpetuating chronic guilt, and this serves to reinforce one’s dependence on God.”

 

(Smith, Atheism, p. 308).  Thus, the anti-sex teachings of traditional forms of Christianity have been an integral part of the psychological con-game that religion has played in Western history for the past 2000 years.  These same teachings have influenced American public policies, including the criminal laws, especially since the mid-19th century.  It is not surprising – although it is quite sad – that many of the same American jurisdictions that criminalized the teaching of evolution (that is, Charles Darwin’s theory of natural selection) also criminalized sodomy and prostitution.  (Of course, people are free to believe as they wish; that’s part of the volitional aspect of human nature I discussed above, and it’s a principle – freedom of conscience – that, thankfully, is guaranteed under the American legal/constitutional system.  What people are not free to do, however, under that system is to impose their beliefs – including their notions of morality, whether traditional or not – on others, through the coercive powers of the law.) 

Repressive attitudes toward human sexuality, attitudes that many people call “Puritanical,” are more properly called “Victorian,” for it was in the Victorian age -- in late-19th century Britain, during the reign of Queen Victoria -- that cultural attitudes about sex became quite unhealthy.  This was the age when cultured people, for example, put skirts around the legs of pianos because it was considered “indecent” not only for women but also for some inanimate objects to show their “limbs”; it also was the age when people began referring to the different cuts of chicken as “white meat” or “dark meat,” to avoid having to mention the chicken’s “breast.”  These sexually repressive attitudes, which dominated upper-class culture in Britain during the latter part of the 19th and the early part of the 20th century, also had strong cultural influences in America.  Why?  That story, too, is long and complicated; but the short answer is that, unfortunately, Americans did not completely divorce themselves, in their culture or in their legal system, from their mother-country.  Especially in the industrialized (and the self-proclaimed “civilized”) Northeast (as opposed to the “wild” West), Americans turned to British aristocratic society – and all its repressive attitudes about human sexuality -- for their models, not only with regard to the rules of etiquette but also, unfortunately, even with regard to public policy.  Not surprisingly, the late 19th century was the time when Congress passed the first national obscenity statute, the Comstock Act of 1873 (named after Anthony Comstock, a failed New York City businessman who mobilized the anti-obscenity movement), which made it a federal crime to circulate through the mails “obscene” materials (including materials providing information about abortion or other forms of birth control).  Many states followed, with their own “little Comstock” laws, outlawing not only obscenity but also abortion, other forms of birth control, and prostitution.  By the early 20th century Congress again got back into the morality policing game by passing the Mann Act, making it a federal crime to transport women across state lines for “immoral purposes,” a euphemism for prostitution. 

In the 20th and 21st centuries American courts, including the U.S. Supreme Court, have slowly – very, very slowly, with tiny incrementally more libertarian steps – have begun to reverse these late-19th-century efforts to repress sexual freedom.  The Court has done this primarily through its controversial protection of constitutional “privacy” rights, striking down as unconstitutional interferences with individual privacy rights laws that criminalized mere possession of “obscene” materials in private homes, laws that criminalized birth control (including even the dissemination of information about contraceptives from doctors to married couples) and abortion, and – most recently, in the Lawrence v. Texas decision two years ago – laws that criminalized sodomy. 

Although many conservatives are still apoplectic about the Lawrence decision, I’ve argued that it’s a proper reading of the Constitution and its protection of liberty through the due process clauses of the Fifth and Fourteenth Amendments.  (See my article on “Intepreting the Constitution Contextually.”)  What’s really astounding about Lawrence is that it took over 200 years from America’s founding for the courts to realize that part of the basic liberty rights of the individual that our constitutions ought to protect is the freedom of individuals (of consenting adults) to engage in oral and anal sexual acts, which is what the sodomy laws prohibited. 

        In a truly free society – that is, a society in which sexual freedom in all its manifestations was fully protected, under our laws, as among the basic rights of all individuals – not only would there be no laws criminalizing sodomy, but there would also be:

 

n      No laws criminalizing “obscenity,” in any form

 

As I have noted in a previous blog essay (“Supreme Nonsense, Part II”), the First Amendment free-speech clause ought to be interpreted to fully protect so-called “pornography,” and the justices of the U.S. Supreme Court ought to abandon their jurisprudentially untenable attempt to carve out an “obscenity” exception to the First Amendment’s protection.  That Amendment protects freedom of speech as an absolute:  Congress and the states (through the Amendment’s incorporation into the Fourteenth Amendment) are commanded to pass “no law” abridging freedom of speech; and “no law” means just that – NO LAW!   To even categorize certain kinds of speech (in whatever form, whether poems, stories, books, songs, magazines, films or videos) as “obscene” or even as “pornography,” because of their erotic content, is itself a manifestation of repressive attitudes about human sexuality.  Erotica is as legitimate a form of expression as other forms of expression; it is, therefore, fully entitled to constitutional protection as “speech.” 

The only limitation consistent with our theory of individual rights might apply to so-called “child pornography” – that is, erotica utilizing minors who, by definition, are incapable of giving consent and therefore are subjected to force, or coercion – but what is properly criminal is not that form of erotica per se, but its production.  As recent court cases demonstrate, the problem with efforts to prohibit “child porn” through the criminal laws – other than proper enforcement of the laws against kidnapping or assault – is that they too easily can become perverted into prosecution of protected free speech.  Much unjustifiable interference with the freedom of adults is rationalized as “protecting the children.”  The only legitimate laws criminalizing “child porn” would be limited to the criminal acts – the abuse of children – and not to the “speech” those acts produce.  (We also ought to re-examine our laws about the age of consent; that is, how we classify “minors,” for purposes of sexual freedom.  Many European countries have a sexual age of consent below 18 – and in this, they may be  more in tune with the realities of human nature, including sexual maturation, than the U.S.A.)

 

n      No laws criminalizing sexually-oriented businesses

 

In a society that fully protects sexual freedom, persons ought to be free to patronize not only bars or clubs where consenting adults may meet, for possible sexual encounters back in their privacy of their own homes, but also places that allow consenting adults to engage in sexual acts with each other, on the business premises:  that is, places like bathhouses, “adult” movie theaters, strip clubs, nudist resorts, and of course, houses of prostitution.  Prostitution, the so-called “second-oldest profession” (second only to farming, by many historians’ estimation), ought to be regarded as a perfectly legal activity and, indeed, a legitimate profession.  (In this respect, as in some others, the ancient civilizations of Greece and Rome – where prostitutes not only could engage in their profession legally but also were highly regarded, socially – were more advanced, and in tune with human nature, than modern societies are.)

Some may argue that “adult” businesses ought to be subjected to certain “reasonable” time, place, or manner restrictions – for example, zoning regulations confining them to certain parts of town or prohibiting their location within a certain distance of schools, churches, etc. – but these restrictions, ultimately, are not justifiable in a free society.  The mere fact that some people in the community might have moral objections to such businesses and therefore are offended by them, and do not want themselves (or their children) “subjected” to their mere presence in the community, is insufficient to justify such restrictions.  A free society requires that everyone have a certain thickness of skin – a toleration of activities they may find objectionable – so long as those activities actually harm no one.  Merely being offended is not sufficient, under the laws of a free society, to interfere with the freedom of consenting adults to enjoy sex, as they please.  (Personally, I’m offended by the Judeo-Christian theology and its moral code, but I cannot properly object to the Christian church that is located across the street from my house, so long as its members do not interfere with my enjoyment of my own property.)

 

n      No laws barring marriage between same-sex couples

 

As I also have discussed in a previous blog essay (“Marriage, American Style,” May 19, 2004), the definition of marriage ought to be broadened, from its traditional meaning of a union of a man and a woman, to the union of same-sex couples, as well, to ensure that all individuals (homosexual and heterosexual alike) enjoy the “equal protection of the laws” guaranteed by American constitutions, state and federal.  For the same reasons, efforts to limit marriage to its traditional scope – including the constitutional amendments passed by voters in Ohio and other states in last fall’s general elections – are properly regarded as unconstitutional, violations of equal-protection guarantees as well as the liberty guaranteed under the due process clauses of our constitutions.  Those rights protections ought to trump efforts by a majority of voters, even an overwhelming majority, to interfere with individual freedoms; after all, our constitutional system is based not on simple majoritarianism but on majority rule constrained by constitutional limits protecting the rights of individuals from majority tyranny.

What some see as the “protection” of marriage – or, more generally, as the upholding of traditional moral standards – is not sufficient justification for the laws to interfere with other individuals’ sexual freedom, including their freedom to enter into a long-term monogamous romantic relationship with a partner of the same sex and to have that relationship protected, under the law, as heterosexual marriages are protected.  People with moral objections to homosexuality – just like people with moral objections to the possession or sale of erotica, to nude dancing, to prostitution, etc. – are free to enforce those objections through the institutions in society that they own (their churches, schools, clubs, and businesses).  For example, a given Protestant denomination can decide for itself (that is, for its members) whether or not to sanction same-sex marriage in its churches, just as a private organization like the Boy Scouts can decide for itself whether to allow homosexual men as scout leaders or homosexual, or for that matter, atheist, boys as members.  But what these private organizations cannot do is use the coercive power of government – including family law and the criminal laws – to impose their biases or prejudices (their homophobic or, more generally, their psychologically-repressive beliefs about sex) on others who do not share their views. 

 

The huge gap between the way things ought to be and the way things currently are, in today’s American legal system, shows how much needs to be done, to reform American law and to fully realize the promise of America’s founding principles.

 

     | Link to this Entry | Posted Monday, May 16, 2005 | Copyright David N. Mayer