Venus in Robes
RICHARD POSNER (1992), Sex and Reason
THE STATUE: My experience is that one’s pleasures don’t bear thinking
DON JUAN: That is why intellect is so unpopular.
—Shaw, Don Juan in Hell
Sex is ubiquitous in American courts, as it is in American life. Judges must deal with it in civil, criminal, and constitutional cases of many kinds; they are called upon to concern themselves with topics such as prostitution, homosexuality, contraception, nudity, child abuse, and erotic art. And yet, as Richard Posner rightly observes, judges often know very little about such topics. Proceeding on the assumption that sexual matters are ahistorical and “natural,” and therefore sufficiently understood by simply consulting one’s own intuitions, they approach these matters, all too often, with little historical or scientific learning, and with a personal experience that is likely, as Posner notes, to be somewhat narrow and uniform, given the effectiveness with which the background checking of judges weeds out members of sexual minorities. Thus, in deeply important human matters, we all too often find opinions that combine naïveté with the puritanism and the moralism that are such a large part of the American cultural heritage.
Consider, for example, the opinions in Bowers v. Hardwick (1986), the case in which the Supreme Court denied that a gay man, arrested in his own bedroom while having oral sex with another man, could legitimately claim that the Georgia sodomy law under which he was arrested violated a fundamental personal liberty, in connection with the due process clause of the Fourteenth Amendment. The case bore, on its surface, a very close relationship to other privacy cases (dealing with contraception, abortion, and the use of pornographic materials in the home) in which the Supreme Court had