SEX
From Moral Issues that Divide us, by James Fieser
2008, updated 1/1/2026, CC BY-NC-ND 4.0
CONTENTS
Introduction
Background
Animal Sexual Behavior
Human Sexual Behavior
Homosexual Activity
What People Think
Ethical Issues
Aquinas: Natural Law
Kant: Respect for Humanity
Bentham and Paley: Utilitarian Cost-Benefit
De Sade: Unlimited Sexual Freedom
Goldman: Personal Freedom with Responsibility
Foucault: The Cultural Relativity of Sexual Morality
Public Policy Issues
Contraception
Pornography
Homosexuality and Gay Marriage
Conclusion
Study Questions
INTRODUCTION
Clair and Jordan began dating during their first year of college. Clair was raised with the conviction that sexual activity should be reserved for marriage, while Jordan saw premarital sex as a normal part of a committed relationship. As their relationship deepened, they found themselves navigating two very different understandings of what counted as appropriate sexual behavior, one rooted in a traditional marriage‑only framework, the other in a more permissive view that many people today consider non‑traditional.
Claire's story introduces several ethical questions: Is premarital sex acceptable? What about group sex, casual encounters, or same-sex intimacy? Is it morally permissible to share sexually explicit images online, or to engage in one-night stands? The questions continue into married life: Is it acceptable to engage in extramarital affairs, swap spouses, or have multiple spouses? Some married couples choose to have polyamorous relationships, meaning they maintain more than one sexual partner simultaneously, with the full knowledge and consent of everyone involved. The liberal perspective offers a qualified yes: these activities are morally permissible, provided they occur between consenting adults and do not result in harm or exploitation. In contrast, the traditional view offers an unequivocal no: none of these activities is acceptable, asserting that the only morally proper context for sexual activity is within a committed marriage between one man and one woman. For clarity, throughout this chapter, we will refer to these activities as "non-traditional sexual practices," while "traditional sexual practices" will denote the marriage-only perspective. Also, we will intend these solely as a convenient way to group the positions discussed, without necessarily implying any judgment.
BACKGROUND
When we consider non-traditional sexual behaviors such as premarital sex, adultery, and homosexuality, we invariably make moral judgments about them, much as we do any other morally controversial issue. What is unique about the issue of sexual morality, though, is that there is an underlying biological drive towards sexual activity. We do not, by contrast, have a biological inclination to take recreational drugs, abort fetuses, damage the environment, harm animals, or engage in most other morally controversial actions. While understanding the biological factors of human sexuality will not by itself resolve the moral issues, it does reveal the kind of sexual creatures that we are by nature.
Animal Sexual Behavior
There is no mystery regarding the main biological purpose of sexual activity in both humans and animals: it is a mechanism for reproduction, and the pleasure associated with it is a reward system to encourage procreation and thereby ensure the continuation of one's genetic line and species. Biologists believe that sexual reproduction emerged within the animal world 300 million years ago, with asexual reproduction being the sole means prior to that. Animal species each have their own mating patterns, and it is impossible to clump all animal sexual behavior into a single category. However, one of the more important sexual issues regarding animals is the extent to which they are by nature monogamous, that is, inclined to have a single mate. For decades, conventional wisdom had it that many species mated for life, particularly birds, but more recent science has overturned that presumption.
Only about 4% of mammals mate for life, such as otters, bats and beavers. But even in these cases most are not completely faithful to their partners, and DNA tests show that 10% or more of the offspring of monogamous animals are sired by different fathers. Biologists sometimes make a distinction between "social monogamy," indicating that an animal couple consistently lives together, and "genetic monogamy," where couples have a consistently single sexual partner. Thus, genetic monogamy in animals is even rarer than social monogamy. Monogamy in general may be a useful survival mechanism when the offspring are especially at risk and may benefit by having two parents. But socially monogamous animals that play the field also have survival advantages: females have an opportunity to pick better genes for their offspring, and philandering males increase the chance of continuing their genetic line by fathering as many children as they can. It is unlikely that animals have these reproduction benefits in mind while either remaining faithful or cheating; rather, it is more like a blind inner impulse that drives them to their respective sexual behaviors.
The sexual behavior among primates, our closest genetic relatives, is particularly diverse. About 29% are socially monogamous, such as Gibbons apes and Marmosets monkeys. At the other extreme are Bonobo apes, which are notoriously promiscuous. Sex, for the Bonobo, functions as a mechanism for social bonding, completely apart from its reproductive purpose. It helps establish a wide network of relationships and smooths over conflicts. Whereas we shake hands to greet each other, Bonobos have sex. Further, different males within their community copulate successively with the same adult female and, when an infant is born, each male behaves as if it is the father. Less than one-third of their sexual contacts are between adults of the opposite sex: much of it is bisexual and incestuous. Their sexual techniques are also varied as they display face-to-face genital sex, tongue kissing, oral sex, and genital rubbing.
Human Sexual Behavior
If a zoologist were to classify human sexual behavior strictly based on our actual conduct, how would we compare to other primates and the rest of the animal world? While we are not as promiscuous as Bonobo apes, we are not as monogamous as Gibbons monkeys. Sociobiologist David Barash describes our biological predisposition towards having multiple sexual partners:
Social conservatives like to point out what they see as threats to "family values." But they do not have the slightest idea how great that real threat is, or where it comes from. Monogamy is definitely under siege, not by government, declining morals, or some vast homosexual conspiracy but by our own evolutionary biology. Infants have their infancy. And adults? Adultery. ["Deflating the Myth of Monogamy"]
Our best information about human sexual activity comes from surveys where researchers directly ask questions to people about their sex lives. While surveys like these have been conducted with regularity in recent decades, none are completely accurate. One reason is that people are prone to lie when asked sensitive questions about their sexual histories, in part from fear that the information will leak, and in part from a sense of embarrassment over their conduct. Here, though, are some such statistics.
As a species, we begin having sex shortly after reaching puberty, with the average in the U.S. being 17 years. 95 percent of Americans have premarital sex, and surveys show that the percentage has been this high since at least the 1950s. Worldwide, people have sex on average 106 times a year; the U.S. is near the top at 138 times, and Hong Kong near the bottom at 57. The average worldwide age for marriage is 22, with Mali having the youngest at 16.4 years, and the U.S. is near the top at 26.8 years. We have many sexual partners through our lives, and, in the US the average is around 13. Men report having perhaps twice as many sexual partners as women do, and, technically speaking, this disparity is puzzling since in a closed group of heterosexual men and women, the numbers would have to be identical. Much of the difference can be explained by the fact that prostitutes are typically not surveyed in such studies, whose clients range in number from hundreds to thousands. In addition to having many sexual partners, our choices are often impulsive: almost half of U.S. adults admit to having a one-night stand. Also, adultery is commonplace. A famous study by Alfred Kinsey in 1953 indicated that 50 percent of married men and 26 percent of married women had adulterous relationships by age 40. More recent studies give similar percentages and DNA tests show that as many as 10 percent of the children of socially monogamous parents are sired by a different father. 5 to 15 percent of married couples have open marriages where the partners agree that each is free to engage in extramarital relationships. Married or unmarried, use of pornography within all age groups is high, with some studies indicating regular use as high as 50%. As with most animals, then, there seems to be a biological predisposition among humans to play the field at least to some extent.
Homosexual Activity
Another fundamental sexual issue connected with human biology is homosexual orientation, that is, the predisposition to be romantically and sexually attracted to people of the same gender. As with other matters of sexual behavior, it is difficult to get a precise estimate of the number of homosexual people, and estimates range between 2 and 7 percent of the population. A critical question is whether homosexual orientation is caused by biological mechanisms or mere social conditioning, or both. There appears to be two distinct biological factors related to homosexuality, the first is genetics. Genetic experiments with fruit flies have identified a group of genes that trigger homosexual courtship and mating. The search for similar genes in humans is still ongoing, but patterns of homosexual orientation within family trees, particularly on the mother's side, suggest that there are genetic switches involved. A genetic study of half a million participants suggested that genes account for between 8% and 25% of same-sex behavior ("Large-scale GWAS", Science). The second biological factor is not strictly genetic, but rather epigenetic involving chromosomal changes during fetal development where the mother's physiology feminizes the brains of her male fetuses. The chances of this happening increases with the number of older brothers that one has. With no older brothers, the chances are 3 percent that a male will be gay; with one brother it rises to 4 percent, with two brothers 5 percent, and three or more 6 percent. These percentages hold even when brothers are not raised together. The likely biological explanation for this is that with each new male child, mothers develop an increased immunization to an antigen produced by the male fetuses, and this affects how the subsequent male fetuses develop. There is also epigenetic evidence that variations in prenatal hormone levels, such as exposure to androgens (male hormones) during critical periods of fetal development, might influence sexual orientation. These are just some of the recently discussed genetic and epigenetic factors that may be relevant, and research is ongoing.
The biological basis of homosexual orientation is a principal reason for the position that sexual orientation is an ingrained characteristic of one's sexual identity, and not a matter of choice. According to the American Psychological Association (APA),
human beings cannot choose to be either gay or straight. For most people, sexual orientation emerges in early adolescence without any prior sexual experience. Although we can choose whether to act on our feelings, psychologists do not consider sexual orientation to be a conscious choice that can be voluntarily changed. [www.apa.org/helpcenter/sexual-orientation.aspx]
For that reason, the APA urges "all mental health professionals to help dispel the stigma of mental illness that some people still associate with homosexual orientation" (ibid). The APA differentiates between sexual orientation and sexual behavior such that, while individuals may choose whether or not to act on their sexual orientation, the orientation itself is not a voluntary choice. Research on sexual fluidity (i.e., changing sexual orientation over time) suggests a natural basis for this as well. Long term studies of subjects show that sexual orientation is relatively stable over time, but, when it occurs it does so more among women. Such variation is often understood as a natural change in how sexual attraction and orientation can be experienced over time, not choice or social environment.
The APA also opposes what are called "conversion therapies" that seek to change the sexual orientation of homosexuals and bisexuals. Historically, some programs have used aversion‑based techniques, whereby homosexual images or thoughts are associated with an unpleasant stimuli. Reports from professional organizations and former participants suggest that many conversion‑therapy programs rely on methods intended to suppress same‑sex attraction that mental‑health organizations describe as potentially harmful. Evaluations by the American Psychological Association and other mental‑health groups conclude that such practices lack scientific support, do not change a person's sexual orientation, and can increase feelings of shame, anxiety, and depression. For these reasons, major professional associations classify conversion therapy as ineffective and potentially harmful, particularly for adolescents. LGBTQ youth are more than four times more likely to seriously attempt suicide than their non-LGBTQ counterparts (Center for Disease Control), and as many as 40% of homeless youth identify themselves as LGBTQ (Williams Institute).
What People Think
Surveys about people's moral attitudes towards sex are mixed. According to the following one, most approve of divorce and premarital sex, but are equally divided about homosexuality, and disapprove of polygamy and adultery. (news.gallup.com/poll/1681/moral-issues.aspx)
"Next, I'm going to read you a list of issues. Regardless of whether or not you think it should be legal, for each one, please tell me whether you personally believe that in general it is morally acceptable or morally wrong."
"Divorce"
Morally Acceptable: 78% in 2023 (vs. 59% in 2001)
Morally Wrong: 18% in 2023 (vs. 28% in 2001)
"Sex between an unmarried man and woman"
Morally Acceptable: 69% in 2024 (vs. 53% in 2001)
Morally Wrong: 28% in 2024 (vs. 42% in 2001)
"Gay or Lesbian relations"
Morally Acceptable: 64% in 2024 (vs. 40% in 2001)
Morally Wrong: 33% in 2024 (vs. 63% in 2001)
"Polygamy"
Morally Acceptable: 23% in 2024 (vs. 7% in 2003)
Morally Wrong: 74% in 2024 (vs. 92% in 2003)
"Married men and women having an affair"
Morally Acceptable: 11% in 2024 (vs. 7% in 2001)
Morally Wrong: 86% in 2024 (vs. 89% in 2001)
"Pornography"
Morally Acceptable: 38% in 2024 (vs. 30% in 2011)
Morally Wrong: 58% in 2024 (vs. 66% in 2011)
The statistics reveal a shift towards more liberal views on various sexual issues over time. Acceptance of divorce has increased, suggesting growing recognition of it as a viable solution to marital problems and possibly reflecting changing attitudes towards personal autonomy. Approval of premarital sex has risen, reflecting relaxed views on personal and sexual behavior. Acceptance of gay or lesbian relations has significantly increased, mirroring greater legal recognition of LGBTQ+ relationships. While still largely disapproved, acceptance of polygamy has grown slightly, hinting at a gradual openness to non-traditional relationship. Attitudes toward adultery remain largely unchanged, indicating that marital fidelity continues to be a strong moral value. Lastly, acceptance of pornography has increased marginally, possibly due to its increased digital availability.
ETHICAL ISSUES
The above information on the biology and psychology of human sexual activity describes how humans are inclined to behave sexually, but, by itself, this does not settle the issue of which sexual behaviors are morally right and wrong. As an analogy, humans may be biologically inclined to lie, cheat or steal when it is to our advantage, but that doesn't mean these behaviors are morally permissible. In fact, a major task of ethics is to stipulate the types of otherwise natural behaviors that are unacceptable within civilized communities. Philosophers have devoted considerable time to devising arguments either for or against the moral permissibility of specific sexual behaviors, and we will consider five influential views here.
Aquinas: Natural Law
Natural law theory is the most important philosophical defense of traditional sexual practices. Its basic position is that the natural purpose of sex is reproduction, and non-traditional sexual activity is morally wrong since it conflicts with that aim. According to medieval philosopher Thomas Aquinas (1225-1274), the theory's main proponent, God implanted within human nature a set of instincts that define our purpose as human beings and establish what is morally right. We have, for example, a divinely-implanted instinct to be sociable, and this tells us that unsociable actions are wrong, such as murder and theft. We also have an instinct to care for our young, and this tells us that we are to nurture and educate our children. Similarly, we have an instinct to procreate, which tells us that we are to have sexual intercourse for the purpose of having children. For Aquinas, this rules out adultery, fornication, and homosexuality, each of which involves sexual relations that are not for purposes of reproduction. Such sexual misconduct, according to Aquinas, is a serious sin, second only to murder, since, while murder destroys life, sexual misconduct thwarts the creation of life.
Aquinas offers a very specific argument for his procreation-only view of sex, based on the natural purpose of body parts. The various parts of our bodies have precise aims, he argues, and sex organs have the clear function of facilitating reproduction through sexual intercourse:
The members of the body being the instruments of the soul, the end of every member is the use of it, as in the case of any other instrument. But there are members of the body the use of which is for the intercourse of the sexes: that therefore is their end. [Summa Contra Gentiles 3.126]
To use our sex organs for purposes other than reproduction, then, is a misuse of that part of our body. So too with the natural purpose of semen: it is there for reproduction, and any emission of it without that purpose in mind is a sin against nature:
Hence it is clear that every emission of the semen is contrary to the good of man, which takes place in a way whereby generation is impossible; and if this is done on purpose, it must be a sin. I mean a way in which generation is impossible in itself as is the case in every emission of the semen without the natural union of male and female: wherefore such sins are called 'sins against nature. [Ibid, 3.122]
Not only must human sexual activity aim at procreation, but, according to Aquinas, it must also be done within the context of a monogamous marriage. Men have a natural desire to be sure that their children really are theirs, which would not be possible if couples were uncommitted. Also, polygamous marriages are wrong since, as a rule, "one male could not provide for several females as a helper in the rearing of their progeny" (ibid, 3.124).
A common criticism of Aquinas's position is that we regularly use parts of our bodies for purposes other than their naturally-intended function. We use our ears to hold up our glasses, which have nothing to do with their purpose of hearing sounds. We use our teeth for chewing gum, which does not facilitate food consumption. We do not consider any of these activities immoral, so why is it immoral if we use our sex organs for purposes other than procreation? Aquinas considered this objection and has a response:
[One might ask whether it is a sin if] one were to walk on his hands, or do with his feet something that ought to be done with his hands. The answer is that by such irregular applications as those mentioned the good of man is not greatly injured: but the irregular emission of the semen is repugnant to the good of nature, which is the conservation of the species. [Ibid, 3.122]
Aquinas suggests here that the ultimate test for whether an unnatural use of a body part is immoral is whether it is contrary to human wellbeing. Using our ears to hold up glasses is not at odds with human wellbeing, and neither is using our teeth to chew gum. But, unnatural use of our sex organs and semen hinders the preservation of our species, and thus is contrary to our wellbeing.
Another common criticism of Aquinas's position is that his procreation-only view of sex rules out any number of sexual activities that even committed married couples might practice, such as oral sex, masturbation, sex with contraception use, sex when couples are infertile, and sex after menopause. Aquinas did recognize that infertility and menopause were special situations, and he argues that sex in these cases would still be permissible:
If it is by accident that generation cannot follow from the emission of the semen, the act is not against nature on that account, nor is it sinful; the case of the woman being barren would be a case in point. [3.122]
Accordingly, sex with infertile couples is permissible since procreation is obstructed by a glitch in the reproductive system that would under normal circumstances result in pregnancy. What is morally right or wrong, Aquinas argues, is determined by the general direction of a course of action, not its aberrations. In this case, the general direction of sex between married couples is towards reproduction, which is for the betterment of human welfare, so it is permissible for all married couples as a rule, including cases of infertility and menopause.
But this provision still leaves out acts like oral sex, masturbation, and sex with contraception use. On these issues Aquinas does not budge, and neither does the Catholic Church which follows Aquinas's natural law philosophy. However, less rigid natural law theorists offer some flexibility. Rather than restricting sex to reproduction only, they see that it also serves a natural purpose of strengthening a married couple's relationship. This would allow for a wider menu of sexual activities that would include the above three. But, the problem with this broader natural purpose of sexual activity is that it opens the door to at least some non-traditional sexual practices. Sex can also strengthen the bonds of committed couples who are unmarried, and also committed LGBTQ couples. Thus, to avoid going down a slippery slope of sexual permissiveness, the most traditional natural law theorists limit sexual activity to purposes of procreation, and that's that. However, it is precisely this hardline stance that is the biggest obstacle to wider acceptance of Aquinas's version of natural law theory.
Kant: Respect for Humanity
German philosopher Immanuel Kant (1724-1804) is another defender of the traditional marriage-only view of sex. The basis of his general conception of morality is that actions are wrong when we treat people disrespectfully as mere things. Instead, we should act towards others in a way that shows respect for their humanity. When I steal from you, I treat you as a thing, with complete disregard for your value as a human. So too if I lie to you, assault you, or use you in any other way merely for my personal gratification. This moral formula, which he calls the categorical imperative, similarly applies to questions about sexual behavior: sexual conduct that degrades a person's humanity is wrong. He writes, "because sexual desire is not an inclination that a person has for another as a human, but an inclination for another's sex, this inclination is a principle of degradation of humanity" (Lectures on Ethics). For Kant, this applies to any sexual activity outside of traditional marriage. Suppose, for example, that you have an adulterous relationship. By doing so, you disrespect your spouse by diverting your time and affection towards someone else. You also show disrespect to your lover by giving him or her false hope for a long-term relationship. More importantly, you display disrespect toward yourself by treating your body as an instrument for personal gratification outside the context of the marriage union that is founded on true love. So too with premarital sex since you would be using yourself and your lover as a mere instrument for personal gratification.
Kant argues there is something unique about the marriage relationship since it involves a commitment to one's spouse as a whole person, not just as a sexual thing. Some sexual objectification still takes place between married couples during sex: the spouses are enjoying the other's bodies, much as unmarried lovers do. What is different about marriage, though, is that spouses are devoted to the entire person of their mate, not just to their physical component. He writes, "If a person devotes to another, he is dedicated to her not only sexually, but to her whole person, and these cannot be separated" (Lectures on Ethics). Any use of sexual inclinations except within marriage, he argues, is an abuse of humanity. It is using one's lover as merely a physical thing. Adultery and premarital sex are thus immoral. But, according to Kant, other non-traditional sex acts are so bad that they constitute crimes against nature, and those he specifically lists are masturbation, homosexuality, and bestiality. They not only strip away one's humanity, but they lower the offender beneath the level of animals since even animals would not engage in these. He states that they are the "most reprehensible violation that a person can commit with respect to duties to oneself," worse even than committing suicide.
We find a more modern version of Kant's argument in Australian law professor John Finnis (b. 1940). According to Finnis, homosexual activities in particular are inherently flawed since they fail to achieve a higher good found only in marital love. Sex within marriage has the two common goods of procreation and friendship, which together makes the married couple a single unit. Homosexual acts, by contrast, involve using one's body solely for gratification, and this ultimately harms the person by making him a slave to his private enjoyment. According to Finnis, homosexual partners cannot achieve true friendship through their sexual activity since it would not be done for the purpose of procreation, and they are deceiving themselves if they think they can. Not only do homosexuals harm themselves, they also harm real marriage by making a mockery of conjugal love and its responsibilities. He writes, "Conjugal sexual activity, and -- as Plato and Aristotle and Plutarch and Kant all argue -- only conjugal activity is free from the shamefulness of instrumentalization" (Finnis, 1993).
What should we think about Kant's uncompromising conclusions concerning the immorality of sex acts outside of marriage? Within the eighteenth-century German social structure, he may have been right that it would be degrading to oneself and one's partner. Promiscuous women could be shunned from society, jailed, or driven into prostitution. You could not honestly say that you respect your girlfriend's humanity while putting her at this kind of risk. But from today's perspective it is less obvious that we of necessity treat our lover or ourselves disrespectfully as mere things when having sex outside of marriage. Many social taboos regarding sex have been lifted, and we do not risk branding ourselves or our lovers as social outcasts or criminals. Society is much more accepting of sexually active couples, particularly when they are committed to each other or live together. Since Kant's day, opportunities for respect and devotion between unmarried lovers have increased. Further, marriage today is not what it used to be in Kant's day. Divorce is easier, wives have their own careers, and children spend much of their time in day care or public school. Married couples have more of an opportunity to lead their own lives, even when they remain sexually faithful to each other. It may be an exaggeration to speak of marriage today as a dedication to the "whole person" of one's spouse. The lines between the married and unmarried have thus become blurrier. While it may be morally wrong to treat people as mere things, as Kant argues, it is not obvious that this occurs with all unmarried lovers.
Bentham and Paley: Utilitarian Cost-Benefit
The utilitarian moral theory offers an approach to sexual morality that is distinct from both Aquinas's natural law theory and Kant's view of respect for persons. According to utilitarianism, an action is morally right if it results in more beneficial consequences than harmful ones for everyone affected. For example, to determine whether a non-traditional sexual practice like casual sex is morally wrong, we need to consider all the negative consequences of that conduct. There is the possibility of unwanted pregnancy, hurt feelings, jealousy, sexually transmitted diseases, and, if couples are married, there's the possibility of divorce and child custody battles. The more these harmful factors are relevant to your situation, the more the conduct becomes wrong.
British philosopher Jeremy Bentham was a founder of classic utilitarianism and he applied the utilitarian cost-benefit analysis directly to issues of sexual morality. Until recently, few respectable philosophers wrote in defense of non-traditional sexual practices, and when they did the public backlash was swift and decisive. Jeremy Bentham well understood these constraints, and what he wrote in defense of non-traditional sexual values remained in unpublished manuscript form during his lifetime. His overall view of sexual morality is mixed. On the one hand he argues that marriage is unquestionably justified by its beneficial consequences:
From whatever point of view we regard the institution of marriage, we cannot fail to be struck by the utility of that excellent arrangement; the bond that holds society together; the very groundwork of our civilization. . . . . To realize its benefits to the full, we need only picture the world as it would be without the institution. [Theory of Legislation, 1802, Ch. 19.]
On the other hand, though, he argued society would benefit from more tolerant laws regarding non-traditional sexual practices. Homosexuality, he argues, should be decriminalized, and there should be reduced penalties for adultery. He also defended cohabitation and short-term marriage as alternatives to traditional marriage contracts. He writes, "Permanent connections are suitable to some situations in life: transient, to others" (Sokol 2009).
But, while Bentham himself saw the positive consequences of more permissive attitudes about non-traditional sexual behaviors, other utilitarians in Bentham's time had a more conservative cost-benefit analysis. A case in point is British philosopher William Paley (1743-1805) who gave detailed lists of harmful consequences of premarital sex, seduction, adultery, polygamy, and divorce. For example, premarital sex "discourages marriage, by abating the chief temptation to it". It also contributes to prostitution, "produces habits of ungovernable lewdness", and spreads venereal diseases that linger for generations. He recognized that the individual offender may not experience the full range of negative consequences from his own behavior, but he argued that the damage of premarital sex needs to be estimated by "the general tendency and consequence of crimes of the same nature". We should thus consider what the larger consequence would be if premarital sex became universal (Principles of Moral and Political Philosophy, 1785, 3.3.2).
This discrepancy between utilitarian philosophers on the issue of sexual morality results from the fact that utilitarianism is just a methodology for determining what is right or wrong, and it does not necessarily side with either traditional or nontraditional sexual practices. Utilitarianism only gives us a formula for answering moral questions once we plug in the relevant data. The data itself are complex, and the harm that might result from premarital sex may change dramatically in different cultures depending on prevailing attitudes about marriage and single parenthood, or the availability of contraception. Social attitudes about sexual conduct vary greatly from one society to another, perhaps more than with any other morally relevant human behavior. In some societies, even today, adulterers and homosexuals can be executed for their moral crimes, whereas in other societies these practices are socially accepted. Consequentialism is an excellent method for determining whether non-traditional sexual conduct will have negative repercussions within a particular society, and whether it is wise to engage in that activity. However, that may not necessarily determine the issue of whether it is the morally right thing to do. It may say more about the rigidness or permissibility of your society than it does about the underlying moral status of that non-traditional sexual practice.
De Sade: Unlimited Sexual Freedom
Bentham's endorsement of non-traditional sexual practices was comparatively moderate. But French author Marquis de Sade (1740-1814) takes a dramatically more radical position, arguing that nature grants us the widest possible range of sexual freedom, which justifies premarital sex, adultery, homosexuality, and prostitution. Men and women alike, he argues, are naturally designed to sleep around with everyone, and it is only unjust social conventions that force us into monogamous marriages:
It is certain that, in the state of nature, women are born vulguivaguous, that is . . . belonging to all males. Without a doubt, such were the first laws of nature and the only institutions of the first communities which men made. Private-interest, selfishness and love degraded these views, which were at first so simple and natural. One believed to grow rich by taking a woman, and with it the good of her family. [Philosophy in the Bedroom (1795)]
This, he believes, entitles anyone, male or female, to have sex-on-demand with anyone we desire, and any one sexual partner is as good as another, irrespective of age, gender, and even species. De Sade's position on sex is grounded in an unusual version of natural law theory. For De Sade, natural instincts determine the personal pleasures in which we may rightfully indulge. Sexual inclinations are primarily there to give us pleasure, and nature does not care how we act out on that instinct, as long as we enjoy it. He writes, "Nature places no great importance on fluid which runs through our loins, and is not concerned if we prefer to direct it down one path or another."
There are two main problems with De Sade's view. First, his version of natural law theory would justify my acting out on any natural instinct that gives me pleasure, including the impulse to steal or kill. De Sade himself argues just that point: "it is impossible for murder to ever be an outrage against nature" (ibid). It should not be punished by the government, he argues, and we should impose no penalty upon the murder beyond the risk he takes of vengeance of the family or friends of his victim. De Sade is essentially denying the validity of any moral code that restricts one's behavior, a position usually called moral nihilism. If you are a moral nihilist, then De Sade is your man. But, for the clear majority of humans who embrace the basic concept of morality, De Sade's nihilism cannot be taken seriously in a debate about sexual morality or any other moral issue for that matter.
A second problem with his theory is that his view of sexual appetites is more descriptive of Bonobo apes than humans. De Sade himself may have had a Bonobo-like sex drive, but he is hardly representative of the human norm. He argues that society has suppressed the unquenchable sexual appetites of both men and women, and traditional sexual practices do not reflect our true sexual nature. But that explanation is not convincing. While society and its laws do have the power to restrain our behavior, such social forces cannot redefine who we are. Cultures of all types and sizes invariably weave together the values of sex, love, marriage and family responsibility. That seems to be a better general indicator of our inclinations, and not the Bonobo-like aberrations that people like De Sade exhibit.
Goldman: Personal Freedom with Responsibility
A less extreme theory in support of non-traditional sexual activities emphasizes the connection between personal freedom and responsibility. The idea of personal freedom arises out of the theory of natural rights, which maintains that all people are born with a set of rights, including the liberty rights to think, speak and act as we so choose. On this view, the major restriction on my conduct is whether my actions cause harm to another person. As Supreme Court Justice Oliver Wendell Holmes once said, "The right to swing my fist ends where the other man's nose begins." Applying this principle of personal freedom to sex, then, all sexual activities are morally permissible as a matter of liberty, as long as one's conduct does not harm someone else. This would be particularly so with sexual relations between consenting adults within the privacy of their own home, and this freedom would include the full range of non-traditional sexual behaviors. Our sexual choices, then, are on a moral par with other activities that we do with other willing partners, such as playing cards or tennis.
A leading advocate of this view is Alan Goldman in his essay "Plain Sex" (1977). According to Goldman, defenders of traditional sexual practices err by viewing sex as principally a mechanism for attaining a further goal, such as reproduction or love. He calls this the means-end view of sex and describes it here:
[Means-ends views of sex] attribute a necessary external goal or purpose to sexual activity, whether it be reproduction, the expression of love, simple communication, or interpersonal awareness. They analyze sexual activity as a means to one of these ends, implying that sexual desire is a desire to reproduce, to love or be loved, or to communicate with others. All definitions of this type suggest false views of the relation of sex to perversion and morality by implying that sex which does not fit one of these models or fulfill one of these functions is in some way deviant or incomplete. ["Plain Sex"]
Aquinas, for example, holds the means-end view by seeing the sole purpose of sex as a means of attaining the end of reproduction, and, consequently, all sexual activities are thereby immoral when they do not facilitate reproduction. Goldman rejects the means-end view of sex on the grounds that pleasures are often ends in themselves, irrespective of biological functions that they perform. "The pleasures of eating and exercising are to a large extent independent of their roles in nourishment or health (as the junk-food industry discovered with a vengeance)." Pleasures from food, exercise and sex all take on lives of their own, apart from their survival functions. Sexual desire, according to Goldman, is not a means to an end, but is simply the "desire for contact with another person's body and for the pleasure which such contact produces."
Unlike De Sade who believes there are no moral limits to sexual activity, Goldman argues that there are clear restrictions: we cannot harm, deceive or manipulate other people while pursuing our sexual interests. These restrictions are not unique to sexual activity, but apply to all our interactions with other people. I cannot, for example, force you to play tennis with me against your will, or club you with my tennis racket if you play better than I do. For Goldman, the connection between sex and morality is the same as it is with sports and morality. He makes this point here comparing sexual ethics with business ethics:
We can speak of a sexual ethic as we can speak of a business ethic, without implying that business in itself is either moral or immoral or that special rules are required to judge business practices which are not derived from rules that apply elsewhere as well. Sex is not in itself a moral category, although like business it invariably places us into relations with others in which moral rules apply. It gives us opportunity to do what is otherwise recognized as wrong, to harm others, deceive them or manipulate them against their wills. [Ibid.]
Thus, sexual activities, whether traditional or non-traditional, have no special moral status in and of themselves, but, like any other human activity, can become tools for immoral conduct if we harm others in the process.
Goldman's approach to sexual freedom has a very modern feel, but his theory is by no means new. Eight centuries ago Aquinas considered a scenario similar to this: if a single woman voluntarily consents to sex and no one is harmed, is it morally permissible? Aquinas answered no: it would still be immoral since it would be contrary to our ultimate human good. Harm is certainly an important indicator of immorality, but it is not the only moral litmus test that we have. This is where Goldman may have gone wrong. The history of ethics is abundant with alternatives for testing the morality of any action, including non-traditional sexual practices. With Aquinas I may ask, am I obstructing the natural purpose of humans as responsible procreators? With Kant, am I treating myself or my lover disrespectfully as a mere thing? With Bentham, am I contributing to a way of life that undermines the greater social good? With other philosophers, am I acting contrary to a traditional value system to which I adhere? Am I developing bad habits or vices that will encumber me in the future? Not all these moral litmus tests may be relevant to my situation, but it is hasty to dismiss them off hand and consult only the test of harm.
Foucault: The Cultural Relativity of Sexual Morality
In his four-volume History of Sexuality (1976), Michel Foucault argues that sexual morality is not a fixed or universal concept, such as Aquinas's view of natural law might suggest. Instead, sexual morality is created by cultural, historical, and social forces, and in that sense it is culturally relative. Sexual behavior in and of itself doesn't have to be a big thing, but society has made it one through the rise of institutions like the church, the state, and psychiatry. What counts as morally significant in sexual behavior is not a matter of universal truth, but rather a matter of how institutions that have reinforced attitudes about sexual behavior, which diverge in different societies and historical periods. In some societies, sexuality might not be a major moral concern, while in others, particularly in the West, it has been elevated to a central issue of ethical and political importance.
Much of Foucult's analysis is historical, explaining the social forces were over time that created and shaped sexual morality, from ancient Greece through the Victorian era. For example, he discusses how 19th-century medical authorities created new categories of sexual "perversion" and "deviance." He suggests that this medicalization of sexuality, rather than repressing sex, actually produced new ways of talking about and understanding it. However, beneath his historical analysis, he provides a strong practical message for how we should think about sexual morality once we recognize it as a construct. First, Foucault encourages skepticism toward the norms and rules that govern sexual behavior. By understanding that these norms are historically created rather than universally true, individuals might be less inclined to accept them at face value. This doesn't necessarily lead to outright rejection of all norms, but it does suggest a more critical understanding of them. Accordingly, he states that the central issue " is not to determine whether one says yes or no to sex . . . but to account for the fact that it is spoken about, to discover who does the speaking" (History of Sexuality, Vol. 1, p. 11). Second, recognizing that sexual morality is a construct can be empowering. It allows individuals to see that their desires and behaviors are not inherently wrong or deviant but have been labeled as such by societal forces. This can lead to a greater sense of freedom in how one navigates their sexuality. Third, such awareness can inspire us to challenge power structures that seek to control sexual behavior, whether through law, religion, or other social institutions. Fourth, such awareness can lead to a more tolerant view of different sexual practices and identities. If sexual morality is not a matter of universal truths but of socially constructed norms, then there might be multiple legitimate ways to live a good life, including differing expressions of sexuality.
There may be some appeal to Foucault's theory, particularly if we feel that society is still unjustifiably repressive about some sexual behaviors. But he draws extreme conclusions about sexual morality as a social construct that may be difficult to back by science. Studies of animals provide evidence that many species have behaviors that resemble human moral norms, particularly around sexuality and reproduction. For instance, in some primate species, such as bonobos and chimpanzees, there are complex social rules about mating, hierarchy, and sexual access, which help maintain social order and cohesion. Many animals, including insects, birds and mammals, engage in mate-guarding to ensure paternity, which can be seen as a precursor to human norms around fidelity and sexual exclusivity. The existence of such behaviors in animals suggests that the roots of human sexual morality may be ingrained in our biology rather than being purely cultural constructs. From a Darwinian perspective, moral norms around sexuality could have helped early human societies manage conflicts over mates, reduce the spread of sexually transmitted diseases, and ensure that resources were directed toward genetically related offspring. These behaviors would enhance group survival and individual reproductive success, making them likely to be passed on through natural selection.
PUBLIC POLICY ISSUES
While in about a dozen countries today homosexuality and adultery are punishable by death, the trend has been to decriminalize non-traditional sexual practices, and this is also the case in the U.S. The U.S. federal government has enacted several general sex laws regarding the distribution of obscene material, sex abuse, and sexual exploitation of children. But the laws pertaining to typical non-traditional sexual practices are determined by each state individually, not the federal government. Throughout U.S. history, most states have used their authority to criminalize adultery, premarital sex, homosexuality, pornography and prostitution. The result has been an inconsistent patchwork of laws from one state to another. The age of sexual consent can be 16, 17 or 18, depending on one's state. Two states allow for some forms of prostitution, about 4 criminalize premarital sex, and about 21 criminalize adultery. Supreme Court rulings, though, set some guidelines for the sex laws that states can or cannot enact.
Contraception
For over 100 years contraception has been a major issue in public policy. The story begins in 1873 with the passage of a Federal law called the Comstock Act which banned the distribution of "obscene, lewd, or lascivious" material through the mail. This included devices or printed material aimed at "the prevention of conception." Penalties for violating the law ranged from a $100 fine to ten years imprisonment at hard labor. Shortly after, 24 states enacted similar laws against contraception. The designer of the original Federal law was Anthony Comstock, founder of an anti-obscenity organization called the New York Society for the Suppression of Vice, which assisted law enforcement agencies in several thousand obscenity convictions. Discussions about contraception at that time were as heated as abortion debates are today, and they drew on similar arguments. Comstock himself believed that birth control promoted lust and prostitution, and that contraceptives were a type of pornographic object. Other critics of contraception argued that its use is essentially murder:
As birth control means the deliberate frustration of a natural act which might have issued in a new life, it is an unnatural crime, and is stigmatized by theologians as a sin akin to murder. . . . [N]o ordinary decent man or woman approaches or begins the practice of artificial birth control without experiencing at first unpleasant feelings of uneasiness, hesitation, repugnance, shame, and remorse. [Halliday Sutherland, Birth Control (1922)]
The Comstock Act was first challenged in 1916 when contraception activist Margaret Sanger was arrested for opening America's first birth control clinic. On appeal, the court concluded that physicians could distribute information on contraception to married women for "the cure and prevention of disease," but ordinary citizens like Sanger could not. Twenty years later Sanger was again in court after the U.S. government seized a shipment of contraceptive diaphragms that she ordered from Japan. By this time contraceptives were widely distributed throughout the U.S., though still prohibited by the Comstock Act. The Court ruled that the importation of contraceptives was legal for medical purposes (U.S. v. One Package, 1936).
Still, the Comstock Act remained valid, along with similar State laws that banned contraception. Once such law was a Connecticut statute that made it a crime to use any drug or device to prevent conception. In 1961, two directors of Planned Parenthood were arrested and convicted in Connecticut after giving contraception information to a married couple. The case made its way to the Supreme Court, which overturned the conviction. Embedded in the Constitution, the Court argued, is a right to privacy that grants married couples the freedom to use contraception. To that extent, the government needs to stay out of the marriage bedroom: "Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship" (Griswold v. Connecticut, 1965). In 1971 Congress finally rewrote the Comstock Act to remove mention of birth control, and a Supreme Court case the following year extended the right to use birth control to unmarried couples (Eisenstadt v. Baird, 1972).
The century-long battle over contraception is by no means over, and the battleground now is sex education classes in public middle schools and high schools. One option for such classes is comprehensive sex education, which includes information about contraception. The other is abstinence-only-until-marriage education, which emphasizes abstinence as the only effective way of preventing pregnancy and sexually transmitted disease. At the same time, it stresses the inadequacies of contraceptive methods such as condoms and birth control pills. Since 1982 the U.S. Federal government has funded abstinence-only programs in public schools. Defenders of abstinence-only education emphasize the moral lesson that sex should be delayed until marriage. Any favorable discussion of contraception in sex education classes, they argue, would send a mixed message to young and impressionable students. Critics, though, argue that abstinence-only programs are ineffective, convey scientifically false or misleading information, and puts students at risk when they do become sexually active. They also use tactics of fear and shame, such as is depicted in the following account of an abstinence-only presentation:
[The abstinence-only teacher] pulled an often squirming and reluctant and always female volunteer onto the stage, took out a toothbrush that looked like it had been used to scrub toilets and asked if she would brush her teeth with it. When she predictably refused, he pulled out another toothbrush, this one pristine in its original box, and asked her if she would brush her teeth with that one. When she answered in the affirmative, he turned to the assembly and said, "If you have sex before marriage, you are the dirty toothbrush." [Shelby Knox, U.S. House Committee hearing, Assessing the Evidence of Domestic Abstinence-Only Programs (2008)]
For other critics of these programs, it is not so much the emphasis on abstinence that concerns them, but the exclusion or denigration of contraception alternatives. They recommend a middle-ground position called "abstinence-plus", which emphasizes abstinence, but also include basic information on contraception. Federal government funding for abstinence-only education continues today through various grants. However, most recent federal administrations have emphasized a more comprehensive approach to sex education that include information about contraception and sexually transmitted infections.
Pornography
Pornography is usually defined as the explicit depiction of sexual subject matter with the primary purpose of causing sexual arousal. A key component of pornography is that it is a representation of sexual activities through some type of media, such as drawings, photographs, film, and writing. While artistic depictions of erotic images have been around since ancient civilization, pornography as a phenomenon did not emerge until cheap and easily accessible forms of media were created. With the printing press came erotic novels, with the camera came erotic photographs, and with film came erotic movies. At each juncture these works were censored by governments and religious authorities, and in 1857 Britain enacted one of the first anti-pornography laws, the Obscene Publications Act. A few years later the Act was clarified: material is defined as obscene depending on "whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall."
In the U.S., the Comstock Act banned the distribution of obscene material through the mail, as it did with contraception. Later, though, two Supreme Court decisions placed restrictions on how far governments can go in banning pornography. In Stanley v. Georgia (1969), the Supreme Court maintained that a person can possess and view pornography: a person has "the right to satisfy his intellectual and emotional needs in the privacy of his own home." Governments have no business controlling peoples' private thoughts: "Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds." This, though, does not apply to the private possession of child pornography, which is specifically prohibited under both federal and state laws. While the personal possession of pornography is Constitutionally protected as a matter of liberty, the distribution of pornography is another matter, and the question is whether it is Constitutionally protected as a type of freedom of the press. In Miller v. California (1973) the Supreme Court said that it is not. States can rightfully prohibit the sale and distribution of obscene material when it meets three specific guidelines:
The basic guidelines for the trier of fact must be: (a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest . . . (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. [Miller v. California]
Commonly referred to as the three-pronged Miller test for obscenity, the essence of the guidelines is this. First, the material in question must appeal to base sexual interest as judged by local community standards. There is no uniform national standard for what counts as obscene, and local communities may decide this themselves. Second, the state must have specific laws that classify the material as patently offensive, such as a designation like this: "patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated." Third, the material must lack serious literary, artistic, political, or scientific value. Works that have such value would be Constitutionally protected, such as a science textbook that contains pictures of nude people, and thus could not be outlawed as obscene. While the Miller test for obscenity does not use the word "pornography", it in essence draws a distinction between hardcore and softcore pornography: hardcore pornography fulfills the above three conditions and is not Constitutionally protected, while softcore pornography is the reverse in that it does not fulfill the three conditions and is thus Constitutionally protected.
The pornography market expanded dramatically with the advent of the internet, and with that came an increase in harms from pornography through divorce, job loss because of pornography addiction, and children having easy access to hardcore pornography. With this increase in social harm from pornography, should governments combat this by creating additional laws against pornography distribution? The legal answer is no. Government restrictions on pornography must follow the three-pronged Miller test for obscenity, regardless of the social harm that internet pornography causes. Legal scholar Rodney A. Smolla explains why:
there is a tremendous temptation for us to move against offensive speech of all kind . . . [such as] sexually explicit speech. The whole history of this country is wrapped up in the natural tendency that all of us have to know evil speech and to want to legislate against it. And the reason we have these very specific doctrines with these very demanding standards like Miller, is to prevent us from yielding to that temptation. . . . [U.S. Senate Committee hearing on Why the Government Should Care about Pornography (2005)]
However, Smolla argues, most of the pornography circulating on the internet today is hardcore and could easily pass the Miller test. It is just a question of whether governments choose to devote limited resources to the prosecution of pornography distributors. The reality is that child pornography cases monopolize prosecutors' time and budget, which leaves few government resources for pursuing the distribution of hardcore pornography.
Homosexuality and Gay Marriage
Over the past few decades, disputes over homosexuality and gay marriage laws have been particularly prominent. From the founding of the U.S., all states enacted sodomy laws that prohibited anal sex; these were originally adapted from earlier British "buggery laws" that carried the death penalty. State sodomy laws typically applied to both male-male and male-female situations, but they were usually enforced only with violent sexual crimes such as sexual assault and rape. Over time, penalties were reduced from death to fines and imprisonment. When the gay rights movement began in the 1960s, several states repealed their sodomy laws altogether. But other conservative states rewrote their sodomy laws to apply to only homosexual activity. In a 1986 sodomy case, Bowers v. Hardwick, the Supreme Court upheld the rights of states to have sodomy laws, maintaining that nothing in the Constitution "would extend a fundamental right to homosexuals to engage in acts of consensual sodomy." However, the Supreme Court reversed its decision in the landmark case Lawrence v. Texas (2003). According to that ruling, state laws criminalizing homosexual activity are unconstitutional since they violate the right to privacy. The court noted that public opinion, both in the U.S. and Europe, had turned against sodomy laws and there was a growing sense that the rights of homosexuals should be protected:
In the United States criticism of Bowers has been substantial and continuing, disapproving of its reasoning in all respects, not just as to its historical assumptions. . . . To the extent Bowers relied on values we share with a wider civilization, it should be noted that the reasoning and holding in Bowers have been rejected elsewhere. The European Court of Human Rights has followed not Bowers. . . . Other nations, too, have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct. . . . There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent. [Lawrence v. Texas, 2003, majority opinion]
Ultimately, the Lawrence decision defends the privacy of homosexuals in their bedrooms as a constitutionally protected liberty right, and the presumption is that this ruling will ultimately invalidate adultery and fornication laws as well.
Granting legal protection to private and consensual homosexual activity is one thing, but allowing gay couples to marry is another. Beginning in 2004 states began permitting same sex marriages. Defenders of such gay marriage legislation argued that it was a matter of justice: heterosexual couples can express their commitment to each other through marriage, and it is discriminatory to deny this to homosexuals. Marriage also grants couples a range of legal rights, such as to adopt children, inherit property, be on a family insurance policy, visit relatives in hospitals. On the other hand, critics of gay marriage legislation argued that marriage is a unique contract with religious and moral implications that has historically applied to only heterosexual couples; allowing gay couples to marry undermines the historic nature of the institution itself. Also, critics argue, children thrive better in households with heterosexual parents, and marriage should be about what's in the best interests of children. Some states offered a compromise arrangement of "civil unions" which give gay couples a select set of legal rights, but not as many as full marriage.
In reaction to the trend towards gay marriage, 35 states banned same sex marriage, some with state constitution amendments. Anticipating the gay marriage trend, in 1996 Congress passed the Defense of Marriage Act (DOMA), which limited the rights of legally married homosexuals. There were two central components to the law. First, gay marriages legalized in one state would not have to be acknowledged in another state. Second, the federal government itself would not acknowledge gay marriages. The effect of this second stipulation was that gay couples, even when legally married in some states, could not receive any legal benefits of marriage at the federal level, such as social security or tax benefits.
But in the 2013 Supreme Court case, U.S. v. Windsor, that all changed when the Court ruled in a 5-4 vote that DOMA was unconstitutional. In this case, Edith Windsor was legally married to another woman in Canada and they resided in New York, which recognizes same-sex marriages. When Windsor's spouse died, the Federal IRS imposed a $363,053 estate tax on her since under the Defense of Marriage Act (1996) the Federal government does not acknowledge the legitimacy of same-sex marriages. The Supreme Court ruled in Windsor's favor on the grounds that DOMA intruded into the rights of states that granted same sex marriages and made such marriages unequal. The Court wrote,
DOMA's principal effect is to identify a subset of state-sanctioned marriages and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency... By this dynamic DOMA undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects . . . and whose relationship the State has sought to dignify (U.S. v. Windsor, 2013).
While this did not legalize gay marriage throughout the country, it provided legal ammunition to challenge bans on same sex marriage at the state level, which resulted in the legalization of same-sex marriage in 35 states. Finally, in the 2015 Supreme Court case Obergefell v. Hodges, gay marriage was recognized as a Constitutional right, and required all 50 states to issue marriage licenses to same-sex couples. The Court argued,
The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest. With that knowledge must come the recognition that laws excluding same-sex couples from the marriage right impose stigma and injury of the kind prohibited by our basic charter. (Obergefell v. Hodges, 2015)
Despite the nationwide legalization of same-sex marriage, opponents have sought to undermine the Obergefell ruling. These efforts are exemplified by certain states enacting Religious Freedom Restoration Acts (RFRAs), which give legal protection to businesses based on religious or moral beliefs, enabling them to deny services to same-sex couples. For instance, Indiana passed such a law in 2015, sparking national controversy and economic backlash. However, the law was subsequently rewritten to explicitly state that it could not be used to justify discrimination based on sexual orientation or gender identity. Likewise, the passage of "Bathroom Bills" has restricted transgender individuals from using public restrooms that fit the gender with which they identify. A 2016 North Carolina law became a focal point of this debate, leading to widespread protests and economic repercussions for the state. Although proponents argue these bills protect public safety and privacy, they have faced criticism for their discriminatory impact on LGBTQ individuals. Additionally, states have implemented laws and policies permitting adoption agencies, some of which receive government funding, to refuse services to same-sex couples based on religious objections. Some of these laws have faced legal challenges, but many have survived and are still in effect today, such as one in Texas. Other states have taken different approaches to resist same-sex marriage. Kentucky saw a high-profile case where a county clerk refused to issue marriage licenses to same-sex couples, citing religious beliefs. Alabama briefly stopped issuing marriage licenses altogether to avoid providing them to same-sex couples. Some states have also attempted to pass laws allowing government officials to recuse themselves from issuing marriage licenses to same-sex couples based on religious objections. Tennessee enacted a law prohibiting online-ordained ministers from officiating marriages, since it is precisely these online ministers who are most often used at same-sex weddings, rather than ministers associated with traditional religious denominations who reject same-sex marriage. These varied tactics demonstrate the ongoing efforts to circumvent or limit the impact of the Obergefell decision, despite its status as law.
Moreover, there are concerns that the Supreme Court might reconsider and overturn the Obergefell decision on same-sex marriage, just as the Court did with Roe v. Wade on abortion in 2022 (Dobbs v. JWHO). These concerns were heightened by Justice Clarence Thomas's concurring opinion in Dobbs, where he explicitly called for reconsidering other precedents, including Obergefell. If such a reversal were to happen, it would once again allow individual states to determine the legality of same-sex marriage within their borders, potentially creating a patchwork of laws across the country as is the case with abortion. This scenario is not merely hypothetical; 35 states still have constitutional amendments or laws banning same-sex marriage on the books, which would likely become enforceable if Obergefell were overturned. In response to these concerns, some states have taken preemptive action to codify same-sex marriage into state law, ensuring that these rights would remain protected within its borders. At the federal level, in 2022 Congress repealed the 1996 Defense of Marriage Act (DOMA) and passed in its place the Respect for Marriage Act, which provides some federal protections for same-sex marriages, although it does not mandate that states must perform or recognize these unions.
CONCLUSION
It is common to depict moral controversies as a debate between conservative and liberal sides of the issue. This is so with sexual morality, and we will conclude with a brief consideration of this pro-contra debate. The conservative position regarding sex is that sexual activity should take place only between a man and a woman in a monogamous marriage. Nontraditional sexual practices such as premarital sex, homosexuality, adultery, and pornography are immoral and should be illegal. Common arguments for the conservative position are these: 1. Natural law: sexual activity is for the purpose of procreation, and purely recreational sex is contrary to this natural aim; 2. Family values: Nontraditional sexual practices damage the social institution of marriage and its commitment to raising children in a stable home situation. 3. Harm from STDs and pregnancy: Nontraditional sexual practices are accompanied by serious harms, such as sexually transmitted diseases, unwanted pregnancies, and psychological feelings of shame.
The liberal position regarding sex is that any type of non-harmful or non-exploitive sexual conduct is morally permissible and should be legal, including premarital sex, homosexuality, adultery, and pornography. Common arguments for the liberal position are these: 1. Freedom: One of our most important values is the freedom of individuals to act as they choose, as long as their actions do not harm others, and this includes nontraditional sexual activity. 2. Cultural relativism: Like many social values, moral attitudes about sexual practices vary dramatically from culture to culture, and our society has already grown to accept nontraditional sexual practices as a social norm. 3. Different preferences: Some people are not suited for traditional monogamous marriage, and sexual alternatives should be available to them.
While disputes over sexual morality can get heated, there are some opportunities for compromise, and the U.S. has already embraced some of these. The most pervasive nontraditional sexual practice is premarital sex, and people largely approve of it. The most potentially damaging nontraditional sexual practice is adultery, and people largely condemn it. Pornography is widely used, and, though soft-core forms are Constitutionally protected, hard core forms are not, and child pornographers are actively prosecuted. Regarding homosexuality, a strong majority of the U.S. population find this morally acceptable, and there is growing recognition of the biological factors driving homosexual orientation. In the spirit of toleration, the most important concessions towards non-traditional sexual practices have been the decriminalization of homosexuality and legalization of same-sex marriage. Traditionalists can still disapprove of these changes if they so choose, yet homosexuals are protected by law.
REFERENCES
American Psychological Association. 2010. "Sexual Orientation and Homosexuality." www.apa.org/helpcenter/sexual-orientation.aspx
Aquinas, Thomas. 1259-1265. Summa Contra Gentiles.
Barash, David. 2001. "Deflating the Myth of Monogamy." Chronicle of Higher Education. April 20.
Bentham, Jeremy.1802. Theory of Legislation.
De Sade, Donatien Alphonse Fran ois. 1795. Philosophy in the Bedroom.
Finnis, John. Affidavit, Oct. 8, 1993, Evans v. Romer, No. 92CV7223, Denver County, Colorado, District Court.
Foucault, Michel. 1976. History of Sexuality, Vol. 1
Goldman, Alan. 1977. "Plain Sex". Philosophy & Public Affairs 6(3)
Kant, Immanuel. 1775-1794. "Duties Towards Animals" in Lectures on Ethics. A recent translation is by Peter Heath (Cambridge: Cambridge University Press, 1997).
Knox, Shelby. 2008. U.S. House Committee hearing, Assessing the Evidence of Domestic Abstinence-Only Programs.
Paley, William. 1785. Principles of Moral and Political Philosophy.
Smolla, Rodney A. 2005. U.S. Senate Committee hearing on Why the Government Should Care about Pornography.
Sokol, Mary. 2009. "Jeremy Bentham on Love and Marriage," The Journal of Legal History 30.
Sutherland, Halliday. 1922. Birth Control: A Statement of Christian Doctrine Against the Neo Malthusians. London: Harding & More.
U.S. Defense of Marriage Act. 1996.
U.S. Supreme Court. 1965. Griswold v. Connecticut.
U.S. Supreme Court. 1969. Stanley v. Georgia.
U.S. Supreme Court. 1972. Eisenstadt v. Baird.
U.S. Supreme Court. 1973. Miller v. California.
U.S. Supreme Court. 2003. Lawrence v. Texas.
U.S. Supreme Court. 2013. U.S. v. Windsor.
U.S. Supreme Court. 2015. Obergefell v. Hodges.
STUDY QUESTIONS
Please answer all of the following questions.
1. What are some of the features of animal sexual behavior in primates?
2. What are some of the features of human sexual behavior?
3. What is Aquinas's argument for his procreation-only view of sex?
4. What are the criticisms of Aquinas's argument?
5. What is Kant's argument against non-traditional sexual practices?
6. What is the criticism of Kant's argument?
7. What is Bentham's utilitarian argument for some non-traditional sexual practices?
8. What is Paley's utilitarian argument against non-traditional sexual practices?
9. What is De Sade's natural law view of sexual morality?
10. What are the criticisms with De Sade's argument?
11. What is Goldman's personal freedom view of sexual morality and a criticism of it?
12. What is the criticism of Goldman's argument?
13. What is Foucault's view of sexual morality and a criticism of it?
14. What is the criticism of Foucault's argument?
15. Explain the legal status of contraception in the Comstock Act (1873).
16. Explain the legal status of contraception in the Supreme Court case Griswold v. Connecticut (1965).
17. What is the legal status of pornography ownership by individuals as established by Stanley v. Georgia (1969), and what are the restrictions on that?
18. What is the Miller test for Obscenity established in Miller v. California (1973)?
19. Explain the legal status of homosexuality as established in Lawrence v. Texas (2003) and U.S. v. Windsor (2013).
20. Explain the legal status of homosexuality as established in Obergefell v. Hodges (2015).
[Short Essay]
21. Short essay: pick any one of the following views in this chapter and criticize it in a minimum of 100 words. Aquinas's procreation-only view of sex; Kant's view of non-traditional sexual practices; Paley's view of non-traditional sexual practices; De Sade's natural law view of sexual morality; Goldman's personal freedom view of sexual morality; the ruling in one of the Supreme Court cases on sexual issues.