It’s hard to believe, but in America today, who you make love with, and how, actually determines what your rights are—both in and out of your bedroom.
Yes, the government uses your sexual preferences and orientation to help decide if you should get custody of your kids, get a security clearance at your job, or be allowed to practice your sexual hobby in private. And if the government doesn’t approve of your sexual interests, you won’t be allowed to buy the toys you want, gather with strangers to have sex, or kiss your partner in public. Your sexual preferences even help determine whether you get fully competent services from a physician, attorney, or therapist.
Up until late 2011, your sexual orientation determined whether you’d be welcome to serve in the U.S. military, regardless of your qualifications to protect the country. In 2002, for example, just a year after 9/11, the Army discharged nine linguists, including six fluent in Arabic, for being gay.1
For decades, a variety of Christian groups have demanded that America pursue this prejudice more energetically and punitively. They were behind the nineteenth-century Comstock ban on selling or mailing contraceptives, the 1930s Hays code that censored Hollywood films, and J. Edgar Hoover’s post-war FBI drive to identify and punish homosexuals in the government and public life. You can see it in the thousand dollars the First Baptist Church in Huntingburg, Indiana, donated to Spencer County to help county commissioners get rid of the local Love Boutique. Separation of (tax-exempt) church and state, anyone?2
The central question, almost beyond belief in a modern country, is: Do all Americans have to have sex the same way in order to claim their fair share of the American dream, or of American justice? To people obsessed with “normal” sex, the answer is yes.
You may think this has nothing to do with you. “I’m not gay and I’m not kinky,” you might say. “I’m sympathetic to people who get busted for being either one, but that’s just the way it is. And it’s not my problem.”
Wrong.
Because once the government can pathologize any kind of sex, it can pathologize any kind of sex—even yours.
And although your sexual interests may currently be perfectly legal (the very idea that private sex has to be declared “legal” is itself chilling), what if you experiment with something new and like it? Or you get involved with a new partner who likes something you never thought about? Or some local group decides that what you now enjoy is dangerous for the community? You could find yourself a sexual fugitive faster than you think. Because like all wars do, the War on Sex is creating refugees everywhere.
Today, some 30 million tax-paying, otherwise law-abiding Americans are in danger—not because they hurt others or others’ property, but because they enjoy certain kinds of sex in private. Whether they’re gay, or into S/M, or they swing with their spouse, they have fewer rights than others do. Despite their enormous numbers, they live as part of a sexual minority.
The creation of sexual minorities—groups who are disenfranchised or in danger because their sexual interests are disapproved of—is dangerous not just for people in those groups. It’s also dangerous for those who are not part of a sexual minority.
The sex under attack doesn’t have to be extreme sex, doesn’t have to hurt anyone, doesn’t even have to generate any complaints. It can be as innocuous as riding the glass elevator at the Hyatt Regency without panties. Or your professor overhearing your girlfriend talk about the rough sex you both like. That’s why you should care.
To give you a bird’s-eye view, laws that were recently passed by America’s state or local governments have punished citizens who:
And don’t forget the four-star general who lost his job for having sex with a civilian who wasn’t his wife—even though they’re in the middle of an amicable divorce and neither woman complained.3
The prevailing Big Lie is that “giving” sexual minorities civil rights somehow undermines the rights of everyone else—and, of course, sends the “wrong message” (of tolerance, how ugly). We should consider the other side—how, ironically, depriving sexual minorities of their civil rights undermines the freedom of all Americans.
Remember, “sexuality” is much more than intercourse or genital stimulation.
So is private sex in America, um, private?
It depends on whom you ask.
Those who fear sex conceptualize all sex as public. They have a well-worn list of ways that private, consensual, adult sexual behavior supposedly affects the community, and is therefore not really private. If your private sexual behavior doesn’t meet their criteria for “normal,” they believe that it:
People who believe this think your sexuality is their business. Many of them want to use the law to establish moral norms and express social disapproval. This was Justice Antonin Scalia’s reason that the Supreme Court should keep anal sex illegal when he dissented in Lawrence v. Texas in 2003. As Professor Strossen noted in this book’s foreword, Justice Scalia warned that state laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity would be vulnerable if Texas’s ban on sodomy was overturned. With a few exceptions,4 that hasn’t happened.
And there’s a deeper, more personal concern at work, which may not even be conscious. Many people who fear sex in general learn, in childhood, to fear their own sexuality. More than almost any other Western country, America is filled with family, religious, and community environments that teach children that their sexuality is bad. Growing up, they project this internalized erotophobia outward, onto others. The simple unconscious logic is, “If my sexuality is dangerous, so is my neighbor’s.”
For people caught in such a bind, the easiest way to reduce anxiety about their own sexuality is to repress others’—that is, yours. They then rationalize their anxiety-reduction strategy of controlling your sexuality: “I owe it to my family/community/God.” Your private sexuality then becomes everybody’s business.
Thus, public-izing private sexuality is an effective way of addressing one’s fear of others’ sexuality. This explains the desire for censorship, even of oneself—eliminating sexual opportunities for others, because one’s own self can’t be trusted.
A lot of public policy is unconsciously formulated and consciously presented as a response to public need, when it’s really a response to personal need. This explains why some people are so obsessed with regulating others’ sexual behavior and decision-making. And it’s absolutely predictable that they would see sex everywhere, providing a never-ending source of energy to repress it.
Since these frightened people conceptualize all sex as public, they feel entitled to demand that the government control everyone’s sexual behavior. That was the justification for criminalizing sex between people of different races, contraception for single people, and anal sex. And why it’s still illegal in much of America to lie on a beach nude even when no one’s complaining, or to gather behind the closed doors of a private club and have sex with strangers.
Many of these frightened people also say they are called by their religion to set the rules for everyone’s sexual expression, regardless of the rights our secular government ensures each of us. And they think that because they credit their impulses to religion rather than to narcissism, paranoia, erotophobia, or their own early trauma, they actually have the right to do so. Whether they phrase this gently (“We want everyone to enjoy the advantages of our way of life”) or harshly (“We must prevent others from living differently from us”), their intention is the same.
In reality, religious conservatives are just a powerful, radical pressure group that threatens American pluralism and tolerance. Why should swing club owners be considered just a self-interested lobby, while a group trying to eliminate a town’s swing clubs is considered the “community voice” or “community activists”? Similarly, why are those who aren’t prejudiced against gays adopting kids considered “the gay lobby,” while those who oppose it are considered “the public” or “the voice of America’s families”?
The idea that “all sex ultimately accrues to the community” must be met with the psychological and political truth that “the results of public-izing all sex accrues to the community.” When sexual expression is repressed, when individuals’ rights are routinely violated and they are made to feel guilty, everyone suffers. Consciously or not, most people struggle with “normality anxiety.”5 The community must cope with the anger, acting out (sexual and nonsexual), secrecy, and even addictions provoked by the resulting guilt and restrictions. Society can’t repress something as fundamental as sexual orientation or sexual expression without paying a price in reduced mental health and community safety.
With sex in America firmly public-ized, how are “clean” and “dirty” sex to be differentiated? That’s the principal conceit behind criminalizing certain sexual expression. It’s commonplace to note that non-reproductive sex is often considered dirty, but the issue goes beyond that. Attached to reproduction or not, anti-sex people feel that passion is dirty, lust is dirty, pleasure itself is suspect, even within the context of monogamous, heterosexual intercourse. This is even more true for other erotic configurations. Sexual intensity, then, is the enemy, and virtually anything done to increase the intensity of sexual arousal or experience is problematic. For those afraid of sex, in fact, that’s the definition of kinky: anything that attempts to heighten the intensity of so-called normal sex. As recently as 50 years ago, many Americans considered oral sex kinky, done only by prostitutes and other taboo subcultures.6 Similarly, anal sex is considered rare—except by the tens of millions of people who do it.
Sexual conservatives perceive multiple layers of clean/dirty sex. Some relationships can’t be clean, so it doesn’t matter what you do within them (e.g., a same-gender couple). Other relationships are clean, but the activities in them can be dirty (e.g., a monogamous wife playing the “oops I forgot my panties game” at a gas station). Some relationships and activities are clean—unless you’re too lusty, which tarnishes the activity (e.g., monogamous intercourse in which the wife asks the husband to ejaculate on her face).
The public-izing of sex attempts to mobilize communities to protect the American hearth, to contain the power of sexuality. The anti-sex community fears this power can spread from one home to another like a contagion. Like heresy did. Like the 1960s did. Like feminism did. That’s one reason they’re so committed to maintaining the myth of kids’ sexual innocence—kids are seen as the generational firewall that helps contain the contagion.
In reality, sexuality encompasses a broad range of our self: what we think and feel, do with our bodies, fantasize; how we choose partners, and how we express ourselves. More pragmatically, it involves what we wear, contraceptive choices, role-playing, toys, and more. Public-izing our sexuality attempts to limit or eliminate a broad swath of these options, which is a lot of our human heritage to lose. And Americans are not safe from further losses: As you read this, churches, morality groups, legislators, and prosecutors are busy narrowing your sexual choices even more.
Americans deserve to reclaim the intrinsic privacy of private sex. Fulfilling the American promise demands it. To do so, we need to reestablish the comprehensive concept of private sex. Outside of sex, this principle is already established throughout our culture: Personal activity is considered private unless it involves coercion, fraud, or the forced, disruptive participation of the public. Playing soccer during rush hour in the center of Times Square is, rightly, prohibited. Making love there should be, too—for exactly the same reason, no more, no less. The sex part is irrelevant.
But “There is no fixed consensus on privacy and sexuality, in spite of the fact that most people feel their bodies are private,” says Kinsey Institute Executive Director, Dr. Julia Heiman.7
Anti-sex forces have found many ways to create a gray zone between private and public sexual expression. The War on Sex pursues that gray zone with legal, economic, and political pressure. Zoning laws, morality crusades, powerful but meaningless anecdotes, and undocumented claims of secondary effects transform private activity into gray zone activity, and gray zone activity into public activity. And so Phoenix, Arizona, was able to close private swingers’ clubs by declaring them places offering “live public sex acts,” and an Arkansas strip club has been forced to stop offering erotic “birthday spankings” because “people can get hurt.” Alabama continues to criminalize sex toys, a policy supported by federal courts.
Throughout history, legal or religious codes have restricted various people in expressing their sexuality: the unmarried, elderly, adolescent, mentally ill, physically handicapped, terminally ill, warriors in training, menstruating women. And, in many cultures, anyone having sex with someone of the same gender.
In most modern societies, those restrictions are either gone or facing challenges. In their place, however, Americans now face other restrictions. They’re based on the discomfort and superstitions of those who legislate, and the vocal minority that alternately critiques and supports them. Whether it’s a zoning board, city council, district attorney, family mediator, or police chief, the story is almost always the same: Adults shouldn’t be allowed to do just any sexual thing they want, even when everyone involved consents and no one complains. Certain activities, relationships, and equipment are judged both bad for participants, and bad for the community.
Or to put it more honestly, “That stuff seems weird and it scares me,” or “That stuff seems exotic and exciting and it scares me,” or “If that’s allowed, then other stuff that’s even scarier might be allowed, and it scares me.”
As New York City prosecutor (Special Victims Unit) Linda Fairstein said in 2001 when describing why she was prosecuting S/M activity that she knew was consensual, she doesn’t believe that “one human being should be allowed to do that to another, even if it is consensual.”8 And as Robert Peters, President of Morality in Media says, “Conclusive scientific data is not necessary” when restricting sexual activity.9 A bunch of people being scared or disgusted is apparently all that is. It works in Iran, it works for the Taliban, so I guess there’s no reason it can’t work here.
There’s a word that accurately describes this policy: “discrimination.” Discrimination against those who enjoy inflaming their own passion (lustism?) and against those who enjoy sexual activity of which others disapprove (kinkophobia?). When people are denied rights simply because society disapproves of who they are or what they do, it’s called discrimination. Kinkophobia and lustism are like racism and sexism. Remember when jobs were advertised according to gender? And houses were rented according to race? Now access to jobs and housing (and to sexual expression) is available according to sexual preference/orientation: “House for rent: no swingers, please.” “Federally funded job available: no gays, please.”
As we look at this question, do keep in mind your experience with whatever minority you’re most familiar: racial, ethnic, religious, and so forth. You’ll see that “sexual minority” fits the familiar model of ethnic minority almost perfectly.
During three centuries of American history, “minorities” have included immigrants, Jews, African Americans, “Orientals,” Mexicans, Quakers, Mormons, and Catholics. The designated “other” against which the majority defines itself, ethnic minorities have typically been described as:
American society has historically maintained myths about minority groups, their activities, and the consequences of allowing minorities to follow their “nature.” At the same time, society often lacks awareness about the extent to which minorities are deprived or in pain.
This is what it’s like to be gay or bisexual in America, or to prefer sex that involves variations such as swinging, S/M, exhibitionism, cross-dressing, sex toys, or adult entertainment. The tens of millions of people in one or more of these categories know that their activities could cost them their job, their apartment, their physical safety, or their freedom at any time. They also know that anything that involves their sexuality may be met with ignorance, hostility, or both.
The way professionals are trained, and the services they provide us, are an example. To protect consumers by guaranteeing a minimum level of competence, all states credential professionals such as physicians, attorneys, and psychologists. Thus, everyone has the right to expect their doctor, lawyer, marriage counselor, social worker, and physical therapist to understand a variety of clients; lawyers are expected to understand that some children are cut out of their parents’ wills. Physical therapists know that not everyone is right-handed.
When it comes to sexuality, training in all professions is limited, and many sexual minorities cannot expect expert or non-judgmental services. Because of lack of training and cultural ignorance/prejudice, a physician might misdiagnose an S/M-playing patient with bruises as an abuse victim (and be legally required to file a police report). A marriage counselor who doesn’t understand open relationships might assume that a swinging couple coming for communication skills are afraid of intimacy. Many psychologists would mishandle a bisexual patient ambivalent about committing to marriage. Even Oprah’s therapy guru, Dr. Phil, responded to a question about swinging with derision and ignorance. Calling a caller’s boyfriend “a loser” and “slime,” he cautioned her not to “whore yourself and screw his friends.”10
One National Coalition for Sexual Freedom survey of those in alternate sexual lifestyles, for example, found that 30 percent of the respondents experienced discrimination, while 36 percent suffered violence or harassment (including losing jobs or custody of children).11 A 2008 compilation of incident reports from thousands of men and women in alternate sexual lifestyles showed similar numbers.12
Similarly, Dr. Joseph Marzucco’s 2004 study of 786 people regularly involved in sadomasochism showed that men and women were significantly concerned about getting adequate medical care if physicians saw the physical results of their sexual play.13 The majority remain unknown to their physicians. With millions of Americans practicing S/M regularly or occasionally, studies like these reflect a serious public health problem.
A majority of women who self-identify as lesbians do not disclose their sexual behavior or orientation to their physicians. This can prevent them from receiving appropriate medical and psychological information and services.14
Let’s turn now to some of the ways that sexual minorities—millions and millions of tax-paying, mind-their-own-business Americans—are facing legal and economic violence from judges, prosecutors, and other authorities.
“But blacks can’t help being black,” you might say, “while sexual expression is a choice, so a democratic society can pathologize any sexual choices it wishes.” On the one hand, much sexual expression is inborn the same way race is. Sexual orientation—same-gender or other-gender—is, for almost everyone, fixed at birth or very early childhood. Millions of other people experience sexual preferences so strong that they function as an orientation. These can include sadomasochism, cross-dressing, exhibitionism, and a rigid erotic attachment to objects such as leather or rubber garments.
More to the point, America has also outlawed discrimination in employment and public accommodation based on a person’s religion—which is adopted, not inborn. The right to wear a turban or cross in public is protected no matter how uncomfortable it makes others. There is no reason that someone’s choice to go to a swing club can’t be as protected as his or her choice to go to church (and yes, lots of Americans do both, swinging on Saturday night, praying on Sunday morning).15
Swingers’ clubs—private places where couples and individuals can congregate and have sex with each other in a safe environment—have quietly existed in most major metropolitan areas (and many U.S. military bases) since the 1970s. Fueled by the aging of the baby boomer generation and their belief in personal liberty and sexual expression, the phenomenon has grown every decade since. By most estimates, there are now at least 5 million swingers in the United States.16
By 1966, the military had some 50,000 swingers in its ranks under investigation, and it intended to court martial and discharge all of them.17 When civilian aerospace engineer Robert McGinley was identified as one of these “sexual deviants,” he lost his Air Force security clearance (and therefore his job). In 1975, McGinley founded the Lifestyles Organization (LSO); in less than five years, LSO was hosting weekend conventions attended by 500 or more couples. Soon, hotels and resorts throughout southern California were bidding for their lucrative convention business. They had learned that these thousands of couples are relatively affluent, well-behaved, and often returned—with their friends. They were perfect customers.
But in 1996, some California state officials decided to discourage swinging and to “run LSO out of the state of California.”18 Since swingers weren’t doing anything illegal, how could this be arranged? By declaring that their sexual behavior was dangerous: that it was immoral, which led to the breakdown of family values, and therefore bred crime. The police had no authority to stop this legal behavior, but the state did have an agency mandated to protect the “public morals” in places it licensed: the Department of Alcoholic Beverage Control (ABC).
And so, in October 1996, the ABC told the Seaport Marina Hotel in Long Beach that their liquor license could be revoked if they hosted the Lifestyles Halloween Banquet and Ball. Six weeks later, the ABC temporarily suspended the liquor license of the Town and Country Hotel in San Diego that had hosted the Lifestyles convention that August. In response, the hotel cancelled the contracts it had signed with LSO for the next three years.
A few months later, the ABC warned that any California hotel hosting the 1997 LSO convention (of 4,000 swingers) could lose its liquor license. ABC District Supervisor Dave Gill declared that their morality rules applied even at events at which no alcohol was served. Even more astonishing, he added that the ABC rules applied even to hotel sleeping rooms, since they were on the premises of license holders: “The regulations apply at all times to their facilities regardless of whether the activity is private or public in nature.” The ABC was declaring that adults could not swing in their own locked hotel rooms. Frightened hotels and convention centers were breaking contracts with LSO left and right, creating financial havoc.19
In subsequent court hearings, the American Civil Liberties Union described the ABC as “drunk with its own power.” Robert Burke, president of the University of California–Los Angeles Law School, accused the agency of practicing “state Gestapo-ism.”20 Ultimately, a 9th Circuit judge ruled that the ABC was aggressively misusing its authority in order to suppress expression, and he invalidated the regulations that prevented “any depiction of sex in any manner” at licensed venues. In addition, the ABC had paid the city of Long Beach to uncover dirt about LSO; the city was fined when it was discovered its police officers had lied about the debauchery they supposedly found while undercover at an LSO event.21
“From 1996–99, there were over 30,000 swing club gatherings in North America,” reports multiple award–winning investigative journalist Terry Gould. “They were verifiably peaceful … I couldn’t document a single 911 call placed from a club. But local police nationwide persisted in raiding these private clubs, arresting and humiliating couples inside. Sometimes tipping off TV stations ahead of time, police would drive people out into the glare of waiting cameras,” he revealed in his landmark study, The Lifestyle. “Swinging is peaceful activity that the government insists on treating like criminal behavior.”22
But the nationwide crackdown was just getting rolling.
You couldn’t describe Phoenix as sleepy when the fuss there started, and you certainly wouldn’t now—with a million and a half people, it’s America’s fifth largest city. By 1998, it had an active community of tens of thousands of swingers, with gay bathhouses, mixed-gender clubs, and regularly scheduled house parties. Lots of people got laid, and no one complained.
But then the Phoenix City Council adopted the Live Sex Act Business ordinance. Drafted primarily by the Christian-based National Family Legal Foundation, it declared that sex at a private swing club was a “live sex act,” and that clubs are “detrimental to the health, safety and morals” of residents. It was adopted as an emergency ordinance so that the city could declare a problem rather than having to prove it. And so that the city could ignore the vocal input of “the community”—swingers.
The first U.S. law specifically banning swingers’ clubs, the city’s reasons for it were phony from the start:
Other problems the city’s swing clubs and bathhouses never experienced were drunkenness, violence, guns, sexual assault, gambling, safety problems, financial irresponsibility, corruption, illegal drugs, or underage people. This is a record of public decorum unmatched by the Phoenix 7–Elevens or the Arizona State University football program.
And yet, ordinance in place, the Phoenix police hounded swing clubs. At a cost of millions of taxpayer dollars, they sent in undercover officers week after week (hazardous duty, to be sure—”Honey, it was all in the line of duty. I swear I didn’t enjoy it.”). When the busts came, it was by cops in riot gear, with guns drawn. Did they imagine the swingers had concealed weapons? It’s hard to imagine a bunch of naked 40-year-olds in the middle of kissing, sucking, licking, and screwing becoming a dangerous mob. The night that police raided Flex, there were 10 felonies in the city including a car theft. It’s a great example of how Phoenix’s obsession with sex clubs distorted their public safety priorities.
Club owners spent hundreds of thousands of dollars in legal fees simply for the right to stay in business. They met with the city and attempted to compromise; the response was everything from bizarre applications of arcane hotel regulations (“no more than six in a bed”) to falsified police reports. Courts disallowed documented facts while relying on the “common sense” of city and church officials, anonymous zoning inspectors, and reports by cops who perjured themselves. Phoenix City Attorney James Hays says he was instructed to do whatever was necessary to close down the clubs, especially the most elegant, Club Chameleon.
In 2002, a federal court ruled “there is no First Amendment protection for physical sexual conduct.”
By 2005, the owners and staffs of six different clubs had been arrested and booked on charges ranging from facilitating live sex acts to “moral turpitude” (yes, really). They were told to expect serious jail time and large, punitive fines. Chute co-owner Donell McDonell was threatened with having to register as a sex offender for life. To lighten their sentences, most owners agreed to close their clubs (forfeiting their right to make a living). The very few that remained open were reduced to a desultory, cheap motel blandness, nothing like the vibrant joyfulness once enjoyed by so many. The sophisticated, non-violent, non-problematic Phoenix swing scene and bathhouse scene was destroyed.
And now, a decade after the ordinance’s enactment? Couples still swing, and gay men still cruise. Except both groups do it in settings far less safe, less controlled, less healthy, and less dignified than they used to. “Some of the sex has moved to public parks,” says McDonell bitterly, “probably with fewer condoms used. The Vice Squad says they’re going after that next—having chased it there, from when it was safely behind our closed doors.” “People are not going to stop what they are doing because there is no Club Chameleon,” agrees former club owner Milo Fencl. “They’ll find other ways to do what they want, even if they feel less comfortable with it.”24
Legitimate business owners like the Fencls have learned that religious bigotry, not due process or ethical government, runs Phoenix. City Council members who helped push the discriminatory ordinance, like Peggy Bilstein, subsequently refused to discuss the matter, even if they were still on the City Council.
It’s not just a bunch of gathering places that Bilstein, police lieutenant Larry Jacobs, and others shut down. An established community—with safety norms, etiquette, education, and mutual support, where people know and care for each other—was deliberately destroyed. “It was a place where women felt absolutely safe—they knew they were surrounded by people who would be respectful,” laments Nancy Fencl, co-owner of the now-closed Club Chameleon.25
Phoenix didn’t wipe out swinging. It just made swinging less safe, less predictable, less sober, less contained. All the things those in city government and the Community Defense Council sanctimoniously claimed they were worried about.
“The Phoenix ordinance is the first of its kind in this country,” reported the Phoenix New Times in 1999, “and appears primed to spark a monumental battle in the legal war over the business of sex in America.” How prescient. Cities that have criminalized swing clubs for consenting adults since 2004 include Philadelphia, Indianapolis, and St. Paul. The Community Defense Counsel (which is what the National Family Legal Foundation became) predicts many more cities will be cleansed.26
Contrast this situation with Canada’s, which legalized swinging in 2005. Their Supreme Court used the exact opposite logic of American law:
“Criminal indecency or obscenity must rest on actual harm or a significant risk of harm to individuals or society,” wrote Chief Justice Beverley McLachlin in the majority decision. “Consensual conduct behind code-locked doors can hardly be supposed to jeopardize a society as vigorous and tolerant as Canadian society.”
The judge thus gave her fellow citizens the highest possible compliment.
As if responding to the main arguments threatening such clubs in the United States, the Canadian Court also said, “The causal link between images of sexuality and anti-social behavior cannot be assumed. Attitudes in themselves are not crimes, however deviant they may be or disgusting they may appear.” And legalizing the clubs doesn’t undermine the right to not go to them: “Only those already disposed to this sort of sexual activity were allowed to participate and watch,” said the Court. The Court also dismissed the red herring of clubs spreading STDs. “Sex that is not indecent can transmit disease while indecent sex might not,” they ruled.
But when it comes to sex, Americans have trouble seeing straight. Says Mayor Bart Peterson of Indianapolis, “Our zoning laws exist for a reason: to protect families and children from being exposed to the negative effects that adult businesses can have on a community. Illegal adult establishments like Reel One are a detriment to strong, healthy neighborhoods and simply will not be tolerated in Indianapolis.”27 It isn’t only swingers’ gatherings that are attacked. S/M conventions have been harassed and disrupted by authorities around the country. Here are some recent examples:
According to national surveys, 12 percent of American adults have engaged in consensual sadomasochism, erotic power play, or bondage-and-discipline games (S/M).29 These sexual activities may or may not involve toys, equipment, and role-playing. They often involve physical stimulation that produces pain ranging from mild to intense. These games are always consensual, always negotiated ahead of time, and always accompanied by good communication skills and the ability to change or stop what’s happening whenever desired.
Practitioners of alternative sexual lifestyles have not fared well in child custody hearings. Because America’s family court system is often biased against sexual minorities, parties in divorce proceedings sometimes try to gain legal advantage by exposing a former partner’s sexual history. Parental fitness has been questioned, for example, because one spouse has committed adultery, been “promiscuous,” is gay, or participates in “unusual” sexual activity. Courts often agree, typically without evidence, that a child would be endangered because a parent engages in non-approved sexual behavior.
Over the years, I have been professionally involved in many custody proceedings that involved sexual issues. One of these was recently described in a peer-reviewed journal.30 The article convincingly demonstrates how family courts can be prejudiced against sexual variations. It is noteworthy that this case took place in California, often considered the most sexually liberal and sexually educated state in the country. Here’s the story.
When Mr. Smith and Ms. Smith divorced in the late 1990s, they shared custody of their son, Ed. The boy lived with his father; his mother had liberal visitation rights and alimony. Mr. Jones eventually became the mother’s live-in boyfriend, whom everyone agreed soon had an excellent stepparenting relationship with Ed.
Years later, during an investigation about the boy’s health (which was soon completed) when he was 11, Ms. Smith volunteered that she and Mr. Jones had an intense S/M relationship. This triggered an investigation about the fitness of the mother and the possible danger posed by the live-in boyfriend. The investigation (by court-appointed Dr. Blair) confirmed that:
Nevertheless, Dr. Blair was concerned that the couple’s interest in S/M would lead to dangerous or illegal activities. He stated that Mr. Jones had a sexual interest in children but admitted that there was no evidence to support this belief. Despite this, he said Mr. Jones could pose a risk to Ed in the future. Dr. Blair admitted there was no evidence that the couple was ignorant or careless, but he worried about “the effects on the child if Ms. Smith were to die or become impaired during sexual activity.”31
Worse still, Dr. Blair decided that the couple’s consensual sexual activities constituted domestic violence. And while noting that “the child has not observed it,” Dr. Blair wildly speculated that “he is exposed to the after-effects,” even though “I don’t have enough information to understand what the effects on the child might be.”32
As a result of Dr. Blair’s alarm and recommendations, the court severely limited the mother’s visitation and custody rights, ended her alimony, and required her to attend psychotherapy for almost a year—specifically focusing on domestic violence. The court ended Ed’s relationship with Mr. Jones, even though all parties agreed Ed had a better relationship with him than with his biological father. All of this, despite Dr. Blair’s opinion that the boy was well-adjusted and healthy.
It is heartbreakingly ironic that, although victims of domestic violence rarely have their children taken from them, the court’s insistence on treating Ms. Smith as a victim of domestic violence provided the rationale for limiting her contact with her own child. According to the National Coalition for Sexual Freedom, there are hundreds of tragic cases like this every year. Says national forensic expert Dr. Charles Moser, “We know of no cases where the parent admitting to S/M interests obtained or retained custody of the minor.”33 America’s family courts are directed to act in the best interests of the children they see. Ignorance about sexual behavior, whether S/M, bisexuality, non-monogamy, or anything else, can make it impossible for courts to fulfill this mandate.
In April 2009, sex educator Megan Andelloux began the process of leasing office space in the Grant Building in Pawtucket, Rhode Island. Her goal was to create an educational institution open to the public, The Center for Sexual Pleasure and Health (CSPH). “We’d have seminars and discussion groups, a library, guest speakers, training for professionals, it would be great,” she said.
Five months of investment, preparation, and publicity followed. And three days before the CSPH was slated to open on September 26, 2009, the city of Pawtucket told Andelloux that city councilmembers and city officials had received an e-mail reading, “Hello, A center for ‘sexual rights’ and ‘sexual pleasure’ is opening in Pawtucket.”34 In response, the city blocked the Center’s opening.
The city said it couldn’t allow the CSPH to open because of zoning codes. Although the building was zoned for multi-purpose uses, zoning director Ronald Travers said the allowed uses included only business, entertainment, restaurant, office, or personal use. “There is no provision for educational use, so I had to deny the applicant,” interpreted Travers.
City administrator Harvey Goulet, Jr. admitted that he and some other city officials objected to the CSPH’s mission. “I would prefer that it not be in Pawtucket. That’s my opinion and that’s the mayor’s opinion,” he said. “I think some of these things would be better off in an office somewhere than a storefront.” Convenient rumors began rumbling: that the CSPH would be a brothel, a center for sex trafficking, and an abortion clinic—all demonstrably untrue (if only because the rented space was less than 550 square feet). The opposition feared the community talking openly about sexuality, and some powerful people were using their political muscle to prevent legal educational activities and speech with which they were uncomfortable.
Andelloux contested the zoning interpretation, especially because the Grant Building housed other “educational” businesses, including a chess academy. The CSPH formally appealed the city decision and was again denied occupancy, which brought in the Rhode Island ACLU. Executive director Steven Brown said, “The city’s intent is to suppress the speech that would otherwise occur at the Center. Such content-based discrimination raises serious constitutional concerns.”
After threatening court action, Andelloux applied for a special use permit in January 2010. The Pawtucket appeal board eventually awarded CSPH a special use permit, and the Center opened on February 2, 2010—more in debt than it expected, although with correspondingly more publicity.
* * *
Compassionate Americans look back in shame at the distorted rulings that historically mar our otherwise proud legal system. Decisions involving runaway slave Dred Scott, the Japanese internment camps, legalized racial segregation, and the denial of women’s right to vote fill us with wonder: “What were those judges thinking?” The time will come when our descendants look back on the routine denial of child custody to capable, caring parents who happen to make love the “wrong” way or to the “wrong” gender, and they will wonder the same thing about us.
According to every study of American sexual behavior, at least 25 million heterosexual men and women have same-gender sex one or more times in their adult lives. Not surprisingly, they remain straight.
About 8 million Americans have sex with people of the same gender throughout their adult lives. Like everyone else, most of these Americans fall in love at some point. And like everyone else, they want to be left alone to go to work, raise their kids, pay their bills, and watch TV. They’re not looking for approval, just the chance to live a decent life. And they want their basic rights—visiting their partner in the hospital, handling their kids’ school stuff, keeping their job even though their boss hates “fags.”
That’s it. That’s the whole gay thing.
But some people are obsessed with homosexuality, seeing it as a poison that must be stopped. They talk about protecting themselves and their loved ones from the evil Gay Agenda. Here, for example, is the guiding principle behind the American Family Association’s (AFA) opposition to this alleged Gay Agenda:
We oppose the efforts of the gay movement to force its agenda in education, government, business and the workplace through law, public policy and the media … We oppose the effort to convince our culture that because individuals participate in homosexual behavior, they have earned the right to be protected like racial and other minority groups.35
But the AFA has it wrong. It isn’t having gay sex that earns you protection in America. It’s being American. That’s why blacks and Mormons and people with handicaps are “protected”—because they’re American. That’s all that gays want—the normal protections of all Americans.
So besides wanting “protection,” what is this Gay Agenda?
“Middle America better take note. Last night Hollywood exposed its own corrupt agenda. [It] is no doubt on a mission to homosexualise America,” said Stephen Bennett of Straight Talk Radio, after the 2006 Golden Globe Awards honored films like Brokeback Mountain and Capote.36
What does that even mean? If Bennett thinks gays are lined up around the block to have sex with him, he’s flattering himself. Are gays determined to seduce straights? Of course not. Do they want to destroy marriage? No, they cherish it so much, they want to join it themselves (unlike millions of straight people, abandoning it in droves). But not because they want the cake, the dress, or the flowers. They want the civil rights. Yes, every state is in the marriage business, and it awards financial, legal, and parenting rights to married people. That’s what gay Americans want—the “special rights” the government gives the people it marries.
How would this affect anyone else’s marriage? In Massachusetts, the only state that allows same-sex marriage, the heterosexual divorce rate has gone down. Some would chide that gay marriage helps protect “traditional” marriage. No one’s marriage is threatened by same-sex marriage any more than your friendships are threatened by mine. Nevertheless, in 1996, Congress passed the Defense of Marriage Act (DOMA), which defines marriage as a legal union between one man and one woman; it prevents the federal government from recognizing the validity of legal same-sex marriages, and it allows states to not recognize same-sex marriages that are legal in another state.
As if this weren’t enough, in 2006 twenty-nine U.S. senators took time out from fighting global terrorism, our declining education system, and skyrocketing health care costs to sponsor a Constitutional amendment that would prevent any state from allowing same-gender marriage “or the legal incidents thereof” (those “special rights” gay people want).37
The Republican Party would soil our beautiful Constitution by pandering to some of its constituents’ worst fears. “When America’s values are under attack, we need to act,” said then–Senate Majority Leader Bill Frist (R-TN). Apparently he meant the American “value” of discrimination.
This legal discrimination already exists in a range of parenting arenas, such as child custody (gays lose it) and adoption (difficult or against the law). Referring to the fact that some states allow same-sex couples to adopt children, radio host Janet Parshall told Larry King, “[I] think what you have in many respects is state-sanctioned child abuse.”38 Would Larry King have sat there quietly if she had said this about adoption by black or Jewish parents?
Not that it will change any minds, but there are dozens of published psychological and sociological studies showing that children of gay parents do just as well as children of heterosexual parents.39
Christian conservatives say that homosexuality offends God. (They mean, of course, their god.) I am perfectly willing to believe that—but so what? Lots of what we do in the United States offends their God: working on the Sabbath, heterosexual adultery, embezzlement, drinking alcohol, blasphemy. None of these is illegal in the United States, because “offending God” isn’t a crime.
So why should homosexuality be legally disadvantaged, just because some people don’t like who some other people have sex with? The fundamental agreement in America law is that simply offending others’ beliefs will never be illegal. That’s rule number one: “Life, liberty, and the pursuit of happiness.”
The Family Research Council (FRC) says that once people are allowed to marry someone of the same gender, they will want the right to marry animals. Yes, they really said that. It’s impossible to say how many of their leaders or followers really believe that, but it’s part of the systematic lies and distortions of the Religious Right. Along with Focus on the Family, Concerned Women for America, and other groups, FRC’s goal is to scare people.40
The real story is that the Republican Party has decided to mobilize Christian believers. Since communism is dead, and terrorism apparently doesn’t scare people enough, homosexuality is the most frightening thing they can think of. Karl Rove predicted that putting an anti-gay measure on the 2004 Ohio ballot would bring millions of new evangelical voters to the polls, and it worked perfectly, reelecting George Bush. Blaming liberal, urban, young, sex-crazed homosexuals for the fear, alienation, depression, and powerlessness that average Americans feel (as the direct result of Bush’s policies) may be bad karma but it’s smart politics. Having persuaded conservative Christians that gays want to steal their country, Republicans are promising to protect them from this insidious threat.
And since the government and Religious Right are already waging a War on Sex, the civil rights of gays and other sexual minorities can be just one more front, one more casualty-strewn battleground.
This is one way in which the War on Sex is part of something bigger and far more sinister.