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Regulating sexuality


Since it was decided inLawrence v. It is curious that Lawrence has served as a foundation for same-sex marriage. After all, Lawrence was not a case about marriage—same-sex or otherwise. In short, Lawrence was a case about sexual liberty.

As Regulating sexuality Essay explains, in the twelve years since Lawrence was decided, an alternative system of sexual regulation has become more visible. This Essay surfaces and explores this emergent form of civil sexual regulation that, until now, has been neglected and overlooked. In this way, this system of civil regulation poses a threat to the prospect Regulating sexuality greater liberty in intimate life.

Lydia Anderson-Dana and Maya Khan furnished helpful research assistance. Finally I am grateful to Catherine Djang and the staff of the Columbia Law Review for their outstanding editorial assistance. Hodgesthe Supreme Court of the "Regulating sexuality" States famously struck down state laws prohibiting same-sex marriages. Close In so doing, the Court referenced an earlier decision, Lawrence v.

Close "Regulating sexuality" Lawrencea narrow majority of the Court struck down a Texas statute criminalizing same-sex sodomy. Close Initially, the Obergefell Court relied upon Lawrence as evidence of shifting societal views regarding homosexuality, same-sex intimacy, and same-sex marriage.

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Close Later in the opinion, however, the Court cited Lawrence alongside canonical right-to-marry cases like Loving v.

Virginia and Zablocki v. It is curious that Lawrence has come to serve as a foundation for the legalization of same-sex marriage. After all, Lawrence was not a case Regulating sexuality marriage 9 9 Lawrence v.

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Close —same sex or otherwise. Dubler, From McLaughlin v. Florida to Lawrence v. Sexual Freedom and the Road to Marriage, Colum. Franke, Longing for Loving76 Fordham L. Sunstein, What Did Lawrence Hold? In this way, commentators, including myself, have critiqued the inexorable march toward marriage equality and the use of Lawrence to underwrite this effort.

A few months later, "Regulating sexuality" Massachusetts Supreme Judicial Court announced its decision in Goodridgelegalizing same-sex marriage. Close As we have explained, marriage is, by itself, a species of state regulation Regulating sexuality sex and sexuality. First, going forward, marriage will be the predominant vehicle of state regulation of sex and sexuality—regulation through recognition.

Second, because Lawrence divests the state of its authority Regulating sexuality use the criminal law to regulate private, consensual nonmarital sex, sexual regulation will no longer be punitive. This Essay remedies this oversight and in so doing, provides a more nuanced account of the post- Lawrence regulatory landscape. In the twelve years since Lawrence was decided, an alternative system of sexual regulation has quietly become more visible.

Close —this alternative system nonetheless incorporates the values of both of these regulatory domains by condemning and punishing sex outside of marriage or sex that is deemed Regulating sexuality or inimical to marriage.

And perhaps most troublingly, it resists the constitutional protections for nonmarital sex that Lawrence conferred. This Essay surfaces a series of cases in which the state regulates and civilly sanctions the private sexual conduct of public employees and military personnel.

In focusing on these cases, it explores this emergent form of civil sexual regulation that, until now, has been neglected and overlooked. The Essay proceeds in four parts. It explains how Lawrence fundamentally disrupted the established system of sexual regulation by both providing constitutional protection for nonmarital sex and sexuality and creating space for sex and sexuality outside of marriage and crime, the two principal sites of state sexual regulation.

In these cases, public servants like police officers, Regulating sexuality, and military personnel are subject to adverse employment actions—terminations, reprimands, and the like—because of their private, nonmarital sexual "Regulating sexuality." And although all of Regulating sexuality public employees in these cases assert rights under Lawrencetheir claims ultimately prove unavailing.

As Part II explains, state regulation of the sexual conduct of public employees is not necessarily new. Even before Lawrencestate employers had the authority to regulate the private lives of their employees.

In the post- Lawrence landscape, where criminal law has receded as a means of regulating nonmarital sex and sexuality, we would expect this shadow form of regulation to be diminished. Part III goes on to analyze the operation of this alternate system of sexual regulation in the post- Lawrence landscape. As it explains, not only does this alternative system of regulation proceed under the auspices of civil regulatory modalities, like professional codes of conduct and sexual harassment laws, but the state also justifies this regulation in novel ways.

That is, the state no longer justifies regulation by resort to majoritarian sexual norms and values, as it did under the regime Regulating sexuality criminal sexual regulation.

Instead, the justification Regulating sexuality state regulation is predicated on Regulating sexuality appeal to the public interest and a desire to promote and protect public institutions. In this way, the state has recast the public—private divide in order to regulate nominally private sexual conduct on the ground that the conduct implicates some important public interest, policy, or institution.

In this regard, the system of civil sexual regulation is deeply in tension with the values and goals of Lawrence v. Part IV considers the implications of these developments for the legal regulation of sex and sexuality and seeks to locate this emergent form of sexual regulation in the broader trajectory of state regulation of intimate life.

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Regulating sexuality As it explains, this alternative form of sexual regulation reflects a long-standing effort to maintain some form of state regulation over sex and sexuality. In this regard, the increased visibility and use of this alternative system of sexual regulation has profound consequences for the effort to cultivate a more Regulating sexuality principle of sexual liberty.

Historically, marriage and the criminal law have served as the primary sites for the legal regulation of sex and sexuality. This is not to suggest that marriage and crime were the only "Regulating sexuality" for sexual regulation.

Other forms of law, such as amatory torts, sexual harassment laws and, professional codes of conduct have played a role in regulating sex and sexuality. The Love Triangle in Context, 5 Geo.

A discussing use of professional codes of conduct to punish unacceptable sexual conduct. Still, these forms of regulation have been less robust than marriage and crime in their regulatory force.

See Murray, Marriage as Punishment, supra note 11, at 15 discussing decreased impact of amatory torts. In this regard, marriage and crime have been the predominant modes through which sex and sexuality have been regulated. Close The state, through laws that regulated entry to marriage, defined the domain of lawful, legitimate Regulating sexuality as heterosexual, intraracial, exogamous, and monogamous. Over time, of course, the normative contours of marriage have been "Regulating sexuality." Close Criminal law supported this normative vision of marriage and licit sex by criminalizing sex outside of marriage fornicationas well as sexual conduct deemed inimical incest or threatening to marriage adultery.

Close Almost all sex that occurred outside of marriage was subject to state criminal regulation and as such, was punishable and deeply stigmatized. Evidence of the marriage—crime Regulating sexuality and its role in regulating and structuring the legal regulation of sex and sexuality dot our legal landscape.


Connecticutwhich invalidated a Connecticut statute prohibiting the Regulating sexuality of contraception, even by married couples. Close Griswoldhowever, not only invalidated the Connecticut ban but also recast contraceptive use as something that was moral and appropriate when conducted within marriage.

Likewise, in Loving v. Close transformed Richard and Mildred Loving from outlaws to in-laws. Virginia, but on June 12, the day the Supreme Court issued the decision in their favorthey were not. On June 11,the Lovings were not legally married.

LovingU. Together, Loving and Griswold not only illustrate the operation of the marriage—crime binary but also suggest the Regulating sexuality of Regulating sexuality model of sexual regulation. Under this binary structure, sex could either be marital legitimate and moral or criminal illegitimate and immoral. Because intimate acts and choices are categorized as either marital or criminal, they always are subject to either family law or criminal law. If Loving and Griswold reflect this binary arrangement, then they are also evidence of its last gasps.

Over the last fifty years, there have been Regulating sexuality changes that suggest the unraveling of this binary regulatory model.

A History of Sexuality in America 2d ed. Friedman, Crime and Punishment in American History —50 discussing these changes. Legal developments echoed this cultural shift. Over the next two decades, twenty-two states also decriminalized sodomy. See Yao Apasu-Gbotsu et al. Close Today, most Americans engage in—or have engaged in—some kind of sexual conduct outside of marriage. Regulating sexuality and Materials 6th ed.

Close and 3 the emergence—and expansion—of constitutional protection for private, consensual adult sex, whether marital or not. Texas 37 37 U. Close exemplifies—and indeed, is the culmination of—all of these impulses and the changed regulatory landscape they underwrite.

Close Lawrence fundamentally disrupted the marriage—crime Regulating sexuality that has traditionally structured the legal regulation of sex and sexuality. Close Although Lawrence decriminalized same-sex sodomy, it made clear that the conduct "Regulating sexuality" those engaged in it were not eligible for marriage. Close In stark contrast to Griswold and Lovingwhere formerly criminal sexual conduct was recast as legitimate marital conduct, 41 41 See supra notes 22—30 Regulating sexuality accompanying text analyzing Griswold and Loving within marriage—crime binary.

Close Lawrence restructured the Regulating sexuality binary to interpose a space between these two sites of regulation for sex that was neither marital nor criminal. Ever attentive to claims that the decriminalization of sodomy would lead inexorably to the legal recognition of same-sex marriage, the Court took great care to specify that its decision in Lawrence did not constitute such recognition.

This interstitial space is less thickly regulated than the legal categories of marriage and crime that frame it. And meaningfully, by its terms, Lawrence suggested that a range of nonmarital, noncriminal sexual acts that were private, consensual, and conducted by adults might come to reside comfortably alongside same-sex sodomy in this minimally regulated space between marriage and crime.

The petitioners Regulating sexuality entitled to respect for their private lives. Their right to liberty under the Due Process Clause gives them the full right to engage in their Regulating sexuality without intervention of the government. Critically, Lawrence did more than simply restructure the apparatus of sexual regulation.

It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily Regulating sexuality refused. It does not involve public conduct or prostitution.

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