Sexuality's Law

By Spindelman, Marc | Columbia Journal of Gender and Law, Winter 2013 | Go to article overview

Sexuality's Law


Spindelman, Marc, Columbia Journal of Gender and Law


C. Richard Mohr, Gays/Justice: A Study of Ethics, Society, and Law

If Chambers' "Condom Code" offers an argument with a mixed relation to the ideology of sexual freedom, so, too, does Richard Mohr's book Gays/Justice: A Study of Ethics, Society and Law, though the mix itself is hardly the same. Mohr goes farther than Chambers ever does in the direction of pouring the ideology, including its erotics of death, straight.

Gays/Justice, published in 1988, presents an extended analysis of the social and legal status of gay men and lesbians, (303) much of it in reaction to Justice Byron White's then-recent opinion in Bowers v. Hardwick, (304) which refused to hold that gay sexuality enjoys constitutional privacy protections, and to the urgent social backdrop against which Hardwick itself was decided: the AIDS epidemic, then in darkly opulent bloom. Mohr engages these developments largely on separate tracks. (305) On the one side, he generates a set of negative rights claims that collectively locate Hardwick's error in its misapprehension of the various meanings of the ideal of privacy on which it rests. (306) Properly understood, Mohr maintains, "privacy," in its different dimensions, invariably repairs to, yielding, the same bottom line--a bottom line that Hardwick missed: Gay sexuality as such is private and entitled to moral and legal respect. On the other side, Mohr works up and describes a limited set of affirmative obligations that the State owes lesbians and gay men, including HIV-positive gay men and gay men with AIDS, to secure them the conditions for an autonomous life (307)--obligations to be discharged through the enactment of new forms of pro-gay and HIV/AIDS-related legislation. (308) Connecting these tracks are Mohr's analytics, basically morally and politically liberal, throughout. (309) While this gives the work what many liberal readers will find to be a familiar and reassuring ring, from the perspective of the ideology of sexual freedom, it sends up definite warning signs. The book's near-constant moralizing, not least of all its morality-based embrace of affirmative state obligations in relation to sex, are, from this perspective, to be strenuously opposed.

Against this backdrop, the ideology of sexual freedom takes special interest in one argument that Mohr ventures while explaining Hardwick's mistakes. It stands out from the others that surround it for the different and far friendlier path it breaks. Unlike the other claims, which ground sex's privacy claims on their substantive moral content, this argument apparently aims to garner sex impunity from moral and legal sanction based on the sheer experience of it. (310) In substance and effect, this phenomenological bid does not so much seem to collect and advance ideas tolerable to the ideology of freedom as it voices ideas found within it, ventriloquized.

Schematically, Mohr's sexual phenomenology hangs together as an erotic tale of sex, start to end: from "horniness" to "sexual arousal" to intercourse to its aftermath. (311) Within it, sex is the very experience it presents: a "world-excluding" (312) force. Like certain other experiences--the examples given are "reading a poem" (313) and "praying alone" (314)--sex may happen in the world, but it is not for that reason properly of it. Far from it, sex "propel[s] away the ordinary world, the everyday workaday world of public places, public function, and public observation." (315) In doing so, it "creates its own sanctuary which is in turn necessary for its success." (316) Distinguishable and thus distinguished from the workaday world, by fiat deemed public, "the sexual realm" is by contrast declared "inherently private." (317) Though distinct from everyday reality, and largely (if not entirely) a world unto itself, the sexual universe turns out to be easily perturbed. The merest intruding glance (318) (much less anything more), and "[t]he whole process and nature of sex is interrupted and destroyed. …

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