The state has long attempted to regulate sexual activity by channeling sex into various forms of state-supported intimacy. Although commentators and legal scholars of diverse political perspectives generally believe such regulation is declining, the freedom to engage in diverse sexual activities has not been established as a matter of law. Instead, courts have extended legal protection to consensual sexual acts only to the extent such acts support other state interests, most often marriage and procreation. Although Lawrence v. Texas altered some aspects of that vision, it reinscribed others by suggesting that sexual activity should be protected from state interference only to the extent it promotes enduring intimate relationships. This sex-in-service-to-intimacy paradigm devalues both sexual activity that lacks intimacy and intimate relationships that lack sex and reinforces a gendered view of sexuality and intimacy – one that assumes that women value intimacy over sex and that sex is the primary avenue through which men can become emotionally intimate.
This Article challenges the single vision of sexual intimacy reinforced by Lawrence, arguing that the state should independently protect both intimate relationships and sexual interactions. Other legal scholars have argued that intimate sexual relationships should be protected outside of marriage, or that sex and marriage should be separated from state support for families. This Article extends the deconstructive project to intimacy in general, arguing that sex should be decoupled in the legal sphere from both domestic relationships and other traditional forms of emotional intimacy, thus rejecting the dominant, almost sacred, understanding that the most important relationships between adults should always be both sexual and emotionally intimate. In place of that understanding, the Article explores alternative constructions of the value of sex in non-intimate circumstances and the value of intimate relationships in the absence of sex. At the same time, the Article contends that sex can maintain its relational and generally intimate character even if it is not always tied to emotional intimacy, as sex could become intimate and intimacy could become sexual in new ways. Sex might even eventually lose its status as an exceptional activity with unique values and dangers. As long as sex retains its exceptional status, however, the Article argues that sexual association is deserving of the same protection extended to intimate association. Therefore, the Article concludes by considering how the values furthered by alternative constructions of sex and intimacy could support a constitutional right to engage in consensual sexual activity without regard to intimacy.
Laura A. Rosenbury and Jennifer E. Rothman, Sex in and out of Intimacy, 59 Emory L.J. 809 (2010), available at http://scholarship.law.ufl.edu/facultypub/720