Six years ago I wrote a Foreword to the first edition of this book. I said it was important, scholarly, and perceptive.
This second edition is a recognition of that importance and perceptiveness. Marty’s ideas about the War On Sex have been both valuable and prescient; his many concepts such as “phony categories,” “public-izing of private sexual expression,” and the “Sexual Disaster Industry”—not to mention the War On Sex itself—describe important socio-political phenomena that directly affect all Americans’ civil liberties.
I was delighted, though hardly surprised, when the American Association of Sexuality Educators, Counselors, and Therapists honored the first edition as their Book Of The Year. I trust that this second edition will inform, inspire, and empower still more readers to face the challenges of America’s continuing War On Sex.
—Nadine Strossen November 2011
I am honored to write a Foreword to this important book by my longtime colleague in the civil liberties movement, Dr. Marty Klein.
The reasons I consider this book so central to core civil liberties concerns can be graphically illustrated through my own family history. My beloved father was born a so-called “half-Jew” in Germany in 1922, and therefore suffered horrific human rights abuses under Hitler, including in the sexual realm. Until the day he died, my father was eternally grateful to the young woman who had been his first love, when he was a young man living in Berlin as the Nazis were rising to power. The Nazis had classified her as an “Aryan,” so she was risking her own safety when she defied Hitler’s strict anti-miscegenation laws and continued her relationship with my father. Meaningful as her love and loyalty were to my father, they couldn’t protect him from being deported to the Buchenwald concentration camp. Ultimately, though, my father was liberated from that death camp by the American troops who saved him—literally one day before he was slated to be sterilized.
In short, I have the most profound personal stake in preserving individual freedom in the sexual realm. I owe my very existence to my father’s last-minute rescue from a regime that denied such freedom, as an essential element of its overall human rights abominations.
To be sure, it has been a while since we have faced such extreme discriminatory, coercive measures in this country as those that my father faced in Nazi Germany. Nonetheless, anti-miscegenation and forced sterilization measures did constitute official U.S. policy until shockingly recently—1967, in the case of miscegenation.1 Moreover, had it not been for constant advocacy efforts by organizations such as the American Civil Liberties Union (ACLU), and by individuals such as Marty Klein, we might well still be subject to such repressive measures.
We must have the historic humility to recognize that it is always far easier, with twenty-twenty hindsight, to criticize past abuses—especially if they occurred elsewhere—than it is to recognize their current counterparts in our own backyards. Accordingly, Marty Klein’s book shines a welcome spotlight on the many public policies today that continue to stifle full and equal freedom of choice for all mature individuals in the essential arena of sexuality.
I hope that the next generation will look back on our laws that bar marriage between individuals of the same gender with the same incredulity and shame with which we now look back on the laws from two generations ago, barring marriage between individuals of different races.
In short, in the words of the ACLU’s principal founder, Roger Baldwin, “No fight for civil liberties ever stays won.”2 That in turn means, to quote a statement that has been attributed to Thomas Jefferson, which is also an ACLU motto: “Eternal vigilance is the price of liberty.”3
Marty Klein’s book vigorously rises to the challenge posed by both of these rallying cries. He explains in vivid detail the ongoing struggles to maintain freedom and equality concerning the whole spectrum of rights in the sexual realm: from the right to convey and receive medically accurate information about sexual matters; to the right to make our own choices about such fundamental, personal matters as contraception, abortion, and our sexual partners and intimacies. By documenting the mounting assaults on these essential rights, Marty is not only maintaining “eternal vigilance” himself, but also galvanizing all of you readers to do likewise.
In recent years, we have made some great strides forward in securing some rights regarding sexuality. For example, the Supreme Court has issued two pathbreaking decisions protecting the rights of lesbians and gay men,4 and the Court also has consistently protected freedom for sexually oriented expression in various “new media,” including the Internet and cable television.5 I note these positive developments not at all to suggest that we should rest on our laurels, content with the progress we have made. To the contrary, I note the progress we have made, through education and advocacy, in the hope of encouraging all readers to raise their valued voices to help further these ongoing efforts. Marty’s book is itself a valuable contribution to the ongoing struggles, and I share his hope and belief that it will in turn spur others to make their own contributions.
From my dual perspectives as a constitutional law professor and civil liberties advocate, the most important recent positive development was the Supreme Court’s landmark 2003 ruling in Lawrence v. Texas.6 In that case, the Court not only struck down the statute that was directly at issue—Texas’s discriminatory ban on “sodomy” (oral or anal sex) only when it took place between same-gender couples. Additionally, of even more enduring consequence, the Court based its holding on broad-ranging libertarian and egalitarian rationales, which should sound the death-knell for other laws that restrict other personal conduct by consenting adults in the privacy of their homes.
Significantly, the Lawrence Court reversed its infamous 1986 decision in Bowers v. Hardwick, in which the ACLU had challenged Georgia’s law that criminalized all “sodomy,” or oral or anal sex, even between consenting adults in the privacy of their own homes.7 In Bowers, the Court had held that government may criminalize private, consensual adult conduct, which inflicts no harm on anyone, merely because the majority of the community disapproves of the conduct. This reminds me of H.L. Mencken’s famous definition of Puritanism: “the haunting fear that someone, somewhere, may be happy”!8 Seriously, it is hard to think of any purported justification for criminal laws that is more antithetical to individual liberty.
Let me quote John Stuart Mill’s classic 1859 essay, “On Liberty”:
Over himself, over his own body and mind, the individual is sovereign. … [T]he only purpose for which government may rightfully exercise power … over anyone is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant.9
This famous statement well captures the bedrock civil libertarian premise that undergirds the ACLU’s opposition to all laws that restrict the voluntary sexual choices of mature individuals. Indeed, this core concept of liberty is so fundamental that it also undergirds many other aspects of the ACLU’s overall mission: to defend all fundamental freedoms for all people. One member of the ACLU’s National Board put it very well, years ago, when we were reaffirming our opposition to criminalizing drug use by consenting adults. As he said, “When it comes to their own bodies, all adults have the right to imbibe, ingest, inhale, or insert whatever they want, wherever they want!”
The Supreme Court’s opinion in Lawrence v. Texas contains language that celebrates a similarly broad concept of individual freedom of choice generally, and I find this especially exciting given that it was written by Justice Anthony Kennedy—a conservative, Republican, Catholic who was appointed by a conservative, Republican president, Ronald Reagan.
At the outset of his Lawrence opinion, Justice Kennedy ringingly recognized that constitutionally protected “liberty” encompasses not only the freedom to choose the particular kinds of sexual intimacy that were at issue in the Lawrence case—oral or anal sex with a same-sex partner—but also sexual intimacy in general. As he declared: “Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.”10 It is noteworthy that Justice Kennedy ranks this constitutionally protected sexual freedom along with the time-honored First Amendment freedoms of “thought, belief, and expression,” which long have been deemed so signally important that some Justices and other legal experts have called them “preferred rights.”11
Not only does Justice Kennedy’s opinion for the Court begin with an encomium to sexual freedom that would be worthy of Marty Klein himself, but Justice Kennedy concludes his opinion by eloquently endorsing the concept of a living, evolving Constitution in words that are worthy of the most liberal judicial activists. He proclaimed:
Had those who drew and ratified the Due Process Clauses … known the components of liberty in its manifold possibilities, they might have been more specific. [But] [t]hey did not presume to have this insight. They knew times can blind us to certain truths, and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.12
One aspect of the Lawrence decision is of special significance in our ongoing struggle for rights respecting sexuality, which Marty Klein so compellingly documents. In overturning Bowers, the Court expressly held that laws criminalizing sexual conduct or expression cannot constitutionally be based only on majoritarian views about morality. This holding provoked the fiercest tirade in Justice Scalia’s strident dissent. He rightly recognized that this holding should doom a whole host of statutes that now outlaw certain sexual choices, far beyond the discriminatory anti-sodomy statutes that were at issue in Lawrence itself. While these sweeping implications of Lawrence were the cause of Justice Scalia’s consternation, for civil libertarians they are cause for celebration! As Justice Scalia wrote:
State laws [that are only based on moral choices include laws] against … bigamy, same-sex marriage, adult incest, prostitution, masturbation … fornication, bestiality, and obscenity. … Every single one of these laws is called into question by today’s decision. … This [decision] effectively decrees the end of all morals legislation.13
Make no mistake about it; it will take a long, hard struggle to realize fully the liberating, equalizing potential of the Lawrence decision, just as it has taken a long, hard—and still ongoing—struggle to realize fully the liberating, equalizing potential of the Constitution itself. But I always like to stress the positive. So although we are now facing increasingly strong assaults on our freedoms in the realm of sexuality—as America’s War On Sex underscores—we must take heart from the fact that we also have increasingly strong tools to combat these assaults.
That said, it is always a struggle to persuade lower court judges and other government officials to actually enforce Supreme Court decisions upholding constitutional rights. Just as the Constitution itself is not self-executing, the same is true of Supreme Court decisions that enforce the Constitution. Often these are honored in the breach and require much litigation, including more Supreme Court rulings, to translate them into real rights for everyone, all over the country.
Just think of the long struggle, still not over, to fulfill the promise of the Supreme Court’s landmark ruling against “separate but equal” public education in Brown v. Board of Education,14 issued more than half a century ago.
Likewise, in the almost three years since the Court issued its landmark ruling in Lawrence v. Texas, we have had many disappointments, when lower court judges have read that decision as if it had no implications for any factual situation other than the one that was directly at issue in that very case.
And so, as Marty Klein’s powerful book reminds us, despite civil libertarians’ winning of such key battles as the one that resulted in the high court victory in Lawrence, the larger war goes on. At stake are all civil liberties connected with sexuality, in contexts ranging from A to Z—or, to cite two specific examples from both ends of the alphabet, from “abstinence” to “zoning.” In citing abstinence, I am referring to the increasingly prevalent abstinence-only sex “education” programs in public schools, mandated by federal and state laws, which censor medically accurate information, thereby endangering the health and even lives of our nation’s young people. In citing zoning, I am referring to laws that discriminatorily exile from our communities any businesses that engage in sexual expression, including bookstores that specialize in materials for the LGBT community.
Yes, my view has been shifting back and forth between two equally plausible perspectives: one that sees the glass as half-empty, by focusing on the ongoing War on Sex, and the other that sees the glass as half-full, by focusing on the defensive campaigns that have been successfully waged in that war, as well as the tools that these victories have provided to reinforce the continuing defense.
As an activist I am perforce an optimist, so I would like to close with the glass half-full perspective, quoting a key passage from a leading Supreme Court victory in this area. The passage comes from the Court’s 1992 ruling that reaffirmed a woman’s constitutional right to choose whether to carry her pregnancy to term, Planned Parenthood v. Casey,15 in which the ACLU represented Planned Parenthood.
This excerpt explains why decisions not only about childbearing, but also about other aspects of our sexual and family lives, should remain in the private realm, for all mature individuals to resolve on our own, free from the heavy hand of government.
Significantly, this passage appears in the opinion that was jointly authored by three Republican Justices who were appointed by conservative, Republican presidents: Justices Sandra Day O’Connor and Anthony Kennedy, who were appointed by President Ronald Reagan, and Justice David Souter, appointed by the first President Bush. They declared:
Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, childrearing, and education. … Our precedents “have respected the private realm of family life which the state cannot enter.” These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are [also] central to [constitutionally protected] liberty … At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.16
All of us who share the inspiring vision of Justices O’Connor, Kennedy, and Souter about “the heart of liberty” should be heartened by Marty Klein’s book. It should encourage us to do whatever we can, both as engaged citizens and in whatever walk of life we pursue, to help transform this vision into a reality that is equally enjoyed by everyone.
Nadine Strossen17President, American Civil Liberties Union
Professor of Law, New York Law School
New York, New York