Freedom to Choose, Freedom to Marry

Is sex evil unless it leads directly to babies? Is marriage only legitimate if it fosters offspring, or is it also for intimacy? The U.S. Supreme Court issued three decisions between June 7, 1965 and Jan. 22, 1973 that collectively give the answer: No. Roe, the last of them, can be thought of as the exclamation mark. As we reflect on the 40th anniversary of that decision, there's another group that has Roe to thank for the rights it enjoys today: LGBT Americans. While many of us in the LGBT community see parallels between the gay and women's rights movements, we often overlook the direct role of Roe in establishing a right to same-sex marriage: If women are permitted to have sex without offspring—even if their contraception fails and those little cells start dividing inside them—then it must also be okay for women and women, or men and men, to have sex without the possibility of fertility. Reproductive freedom and LGBT freedom are two sides of the same idea.

To explain, let me take you on a little tour via the wayback machine. Few Americans realize how furious the 75-year-long battle over whether it was moral to have sex while trying to prevent offspring was. We celebrate the roughly contemporaneous battle for women’s suffrage and political inclusion, but several parallel battles were taking place that were just as important for women's independence.

Once Goodyear vulcanized rubber and started making his fortune off the rubber condom after 1855, the birth rate started dropping, steadily and dramatically—for the next 100 years (until the unforeseen baby boom that startled pundits and demographers). The condom may seem like a pathetic contraceptive device to us today, but at the time, anything that could cut married women's childbearing from once a year to once every two years was a dramatic advance.

And that drop was noticed. Shocked crusaders, led by Anthony Comstock but championed by public figures ranging from Teddy Roosevelt to pundits at The Nation, made contraception illegal, decrying it for “making the sacred marital bedroom into a brothel.” A brothel, you say? Yup: Sex for pleasure without offspring was equal to whoring around, even for married men and women. FIghting back, Margaret Sanger launched Planned Parenthood to dispense contraception even when and where it was against the law, allowing women to control their bodies. She even worked to import new contraceptive devices. 

The pro-contraception forces won, as you know, after a series of brutal, state-by-state, denomination-by-denomination fights (cf. the current battle for marriage equality, also state by state and denomination by denomination, and over the same ideas). By 1965, the old philosophy was embarrassing. Connecticut’s Planned Parenthood brought a lawsuit, Griswold v. Connecticut, against that state’s ban on the sale and use of contraception. The Supreme Court struck down the ban, declaring that what was decided in the marital bedroom was “intimate to the degree of being sacred.”

“Intimate to the degree of being sacred.” That phrase was the beginning of the end of the public philosophy that sex was licit only for making babies. Two more rulings followed quickly. First, 1972’s Eisenstadt v. Baird, a challenge to a Massachusetts law that banned the distribution of contraception to anyone who wasn’t married. SCOTUS struck that law down, too, with a decision that included this: “It would be plainly unreasonable to assume that Massachusetts has prescribed pregnancy and the birth of an unwanted child as punishment for fornication.” Of course, that was precisely what Massachusetts, and many of the states, had prescribed: celibacy until marriage, enforced by the threat of babies. One year later, SCOTUS added the exclamation point that is Roe: Women had the right to control whether or not they had offspring. From women's point of view, legal contraception and abortion were essential for ending the physical brutality they otherwise endured in having no control over their bodies' fertility, and gave them some economic independence. Roe''s language was anything but soaring, balancing as it does the "rights" of rapidly dividing potential life and a fully breathing individual’s life. But the message was the same: Sex is not just for making babies, and thus a woman has the right to both prevent and interrupt pregnancy.

Consider the implications. If heterosexual couples can have sex for joy and intimacy, why can’t same-sex couples? Why should we be the only ones tasked with abiding by that old idea that nonprocreative sex is evil? The three fertility decisions, punctuated by Roe, opened the door to the idea that all of us—even couples who biologically can never be procreative—should be free to use our bodies as we wish, so long as it’s consensual. If, when contraception occasionally fails, women are condemned to be occupied by the cells that have started dividing until they become human beings, the message is that sex must always be fraught with the possibility of fertility—and that marriage, too, is unescapably for childrearing. But if women have the power to halt that process before those cells become fully breathing and conscious humans, the message is that sex—and therefore marriage—are legitimate also for pleasure and intimacy, for the celebration of being two people incarnate on the planet. That's the philosophy in which lesbians and gay men belong. 

Some might say that Roe was not merely an extension of Griswold—that unlike contraception, abortion is immoral because life begins as soon as a sperm cell smacks into an egg cell. That way of viewing life grows out of the old Christian idea that sex is legitimate only for making new immortal souls—that the "unitive" purpose of marital sex is conception, which is when a soul gets inserted directly into a nascent body. Less spiritual people today might instead say that once those two parts have merged and created a unique DNA set, that is a unique life, and interrupting its development is akin to murder. But most people see a sliding scale to the definition of "life" before birth: They see a blastocyst or embryo as a potential person, but not quite equivalent to an 8.5 month fetus that can kick and breathe independently, and is practically a baby. Seeing the fertilized egg as the moral equivalent of a mewling infant is in part an extension of the view that "prescribed pregnancy and the birth of an unwanted child as punishment for fornication." Roe's explicit permission allowing women to make their own choices about what could live in their uteri, even if they had sex for fun, emphasized the new public philosophy of sex. It posited women as the equals of men, who had been able to have sex for pleasure all along. 

And it did another thing as well. The idea that women can be in charge of their lives—getting a full education, making their own money, choosing their own careers—is only as good as their ability to control their fertility. If a woman must choose between celibacy, poverty, or dependence on a man, her full independence is an illusion. Roe said that women are men's equals, freed to make their own way in the world. They needn't be obedient—to men or to fertility.

That ended another line of opposition to lesbians and gay men, the line that despised gay men for acting like women (both in their choice of sexual partners, and in their range of gender expression) and hated lesbians for acting like men (ditto). If women and men are fully equal—if women can work and men can nurture—lesbians and gay men aren't unnatural at all. We're the logical extension of the idea that it's okay for women to take on the full range of human expression and behavior: thinking, working, earning, taking charge, choosing whom to love based on what's inside rather than having life's course dictated to them by their ladyparts. Which means it is just as fine when lesbians, gay men, bisexuals, and transgendered people do the same. Phyllis Schlafly, the notorious 1970s anti-feminist, opposed the Equal Rights Amendment in part because, she said, it would lead to same-sex marriage. She was right: Gender equality equals me and my gal. And Roe endorsed equality, in both philosophy and practice.

Roe's two messages—the public policy endorsement of sex for pleasure and intimacy, for recreation as well as reproduction, and the public policy endorsement of women's economic and emotional equality—took another generation to sink in. But once a generation grew to adulthood assuming they had the right to control their bodies, their sexuality, their fertility, and their careers, the old idea that same-sex relationships were unnatural no longer made sense.

Thirty years later, in 2003, the Supreme Court took Roe's sexual-privacy and gender equality ideology almost to its logical conclusion in Lawrence v. Texas. In that decision, the Court declared that lesbians and gay men mustn't be forced, alone, to suffer the old stigma against non-reproductive sex: all people have a right to privacy, a right to choose for ourselves how to use our bodies, a right to decide with whom to celebrate intimacy and love and pleasure. As Justice Anthony Kennedy wrote, quoting Justice John Paul Stevens’ dissent in the earlier Bowers v. Hardwick, “individual decisions concerning the intimacies of physical relationships, even when not intended to produce offspring, are a form of ‘liberty’ protected by due process.” [emphasis mine.] That’s Griswold, Eisenstadt, and Roe talking.

And, God willing, the Court will also be talking in this year's win in Edie Windsor’s challenge to Section 3 of the Defense of Marriage Act.

When you or your friends can get married and be recognized by the U.S. this year, or in years to come, it'll be due in part to Roe v. Wade. The status of gay men and lesbians tracks the status of women. In so many ways, reproductive rights are gay rights. Gay rights are women’s rights. Thank God for Roe.

Comments

Nice article, but mostly wrong. First, Roe has effectively been overturned by Planned Parenthood v. Casey, 505 U.S. 833 (1992). The entire trimester system replaced by the undue burden test.

Second, the privacy rights in Roe come from Griswold v. Connecticut, 381 U.S. 479 (1965), which is really the beginning of the whole sexual privacy issue. If one wants to start at the beginning, as Glida the Good Witch of the North always found best, the start at Griswold.

Third, and most crucial, while the rights in Lawrence v. Texas, 539 U.S. 558 (2003) do almost directly stem from those found in Casey , as they stem from the privacy penumbra of well-ordered liberty as found in the First and Fifth Amendments. The Prop. 8 marriage equality case, (whose name has changed several times, but is now called Hollingsworth v. Perry) is based not on that privacy reasoning, but in the Equal Protection clause of the Fourteenth Amendment. The Perry derives most of its support from the holding in Loving v. Virginia, 388 U.S. 1 (1967) and its progeny that declares marriage a fundamental right.

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