Two years after SCOTUS gay marriage ruling, the road to sexual freedom remains long

Two years ago, the Supreme Court issued its landmark ruling in Obergefell v. Hodges, declaring that states must recognize same-sex marriages. That decision capped decades of activism and litigation by lesbian and gay interest organizations which had argued that discrimination against same-sex couples who wished to wed was unconstitutional.

For some conservative Americans, the court ruling represented something more sinister — an abdication of the government’s duty to promote heterosexuality as a sexual norm fundamental to American society. Indeed, critics on both the left and the right viewed the ruling as the latest step forward in an unstoppable march towards sexual freedom that began with the sexual revolution of the 1960s.

{mosads}Some observers saw the timing of the Court’s gay marriage decision as evidence of the Court’s growing permissiveness towards sex — it was decided exactly 12 years after another controversial Supreme Court ruling, Lawrence v. Texas. That decision struck down state sodomy laws that criminalized private, consensual sex.

But while this narrative of progress towards sexual freedom is appealing, it is extremely misleading. At precisely the same time that LGBT rights organizations were successfully securing legal recognition for same-sex couples, “tough on crime” lawmakers across the country were busy enacting new criminal legislation targeting sex. 

As a result, 861,837 Americans are currently registered, some of them for life, as sex offenders, while new criminal laws passed in the name of cracking down on human trafficking have also brought harsher sanctions against garden-variety prostitution. As it turns out, the 2003 Supreme Court ruling that was widely viewed as invalidating state anti-sodomy laws did nothing of the kind; those laws remain on the books more than a decade after Lawrence and are still used to punish the same social outcasts as before the ruling: gay men caught having sex in public and commercial sex workers. 

A bill passed by the U.S. House of Representatives last month represents the latest salvo in this war on sex. H.R.1761, also known as the “Protecting Against Child Exploitation Act of 2017,” would create a 15-year mandatory minimum prison sentence for teenagers caught sexting. As the bill’s title would suggest, lawmakers apparently believe this law is necessary to help protect our children — a siren song often trumpeted by conservative sexual reformers. However, given that upwards of 50 percent of teenagers engage in the criminalized behavior, the new legislation seems designed to turn the majority of them into felons and sex offenders.  Who will protect our children from such protection? 

Of course, there is nothing wrong with using the law to combat sexual assault, forced prostitution, and child pornography; those all inflict grievous personal harm, which must be prevented, if possible, and punished, if not.

But the tentacles of the war on sex reach far beyond these few offenses to include sex that does little or no harm but that is objectionable on moral, political, aesthetic, or religious grounds. The result is a society in which sexual offenses that do no direct harm are frequently punished more harshly than violent crime:  you may well get a longer sentence for possessing child pornography than for killing a child.

In short, reports of the demise of old-fashioned sexual morality have been greatly exaggerated. While they may offer a salve to liberals smarting in the Trump era, they distract us from the real menace of the new war on sex.

Trevor Hoppe and David Halperin are the co-editors of the new collection, The War on Sex (Duke University Press. Halperin is the W.H. Auden Distinguished University Professor in the History and Theory of Sexuality at the University of Michigan; he is the author and editor of over a dozen books, including How to Be Gay and Saint Foucault. Hoppe is assistant professor of sociology at the University at Albany and the author of Punishing Disease. You can reach Hoppe on Twitter @trevorhoppe.

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