Fall 2012

Sex unleashed

Thank — or blame — the ACLU

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Jonathan Cohen
Leigh Ann Wheeler, associate professor of history, focuses her scholarly research on understanding the gendered and changing nature of sexual culture in the United States.

The insight for a book on sexual rights came not from years of painstaking research, but from an informal survey question that historian Leigh Ann Wheeler asked her honors students 15 years ago in a college classroom.

Wheeler asked her University of Minnesota students how they would feel and respond if a spouse or partner brought pornography into the home.

Their answers both surprised and intrigued her, she says.

Almost all the women in her class — a seminar on pornography and hate speech — said that while they’d feel uncomfortable, they would not demand its removal because to do so would be a violation of their partner’s right to free speech.

“I asked myself how and why it is that we think of so many sexual issues in terms of rights,” says Wheeler, now an associate professor of history at Binghamton University, where she’s taught history for four years. She’s also the co-editor of the Journal of Women’s History.

In pursuing an answer, one of her first stops was the American Civil Liberties Union (ACLU). In a 1995 book called Defending Pornography: Free Speech, Sex, and the Fight for Women’s Rights, by former ACLU President Nadine Strossen, Wheeler found a striking similarity between Strossen’s ideas and those of her students — that sexual rights enjoy constitutional protection under speech and privacy, as well as consumer law, she says.

“This was not, I realized, because they [the students] had read her book — they hadn’t — but I wondered if it was an indication that they inhabited a civic and sexual culture profoundly shaped by values popularized by the ACLU,” Wheeler writes. “Recurring experiences like this one ensured that questions about these matters continued to gnaw at me, and they gave rise to this project.”

Thus was born the idea of her soon-to-be-published book, How Sex Became a Civil Liberty, a look at how the ACLU, openly or behind the scenes, along with its allied advocacy groups, attorneys and citizens, fought for birth-control advocates and nudists, and took on the controversial issues of obscenity, abortion, prostitution, involuntary sterilization, rape and sexual harassment throughout the 20th century.

Over time, the assumption of sexual rights and sexual expression has become a part of everyday life, Wheeler says. “Phrases such as ‘informed consent,’ ‘reproductive freedom,’ ‘the right to privacy’ and the ‘right to read’ roll easily off the tongues of many if not most American adults today, conservatives as well as liberals.”

How Sex Became a Civil Liberty, published by Oxford University Press, will be available on Dec. 1, says Wheeler, also the author of Against Obscenity: Reform and the Politics of Womanhood in America, 1873–1935.

In an early review, Susan Brownmiller, author of the landmark book, Against Our Will: Men, Women and Rape, calls Wheeler’s new book a meticulous account of the ACLU’s struggle to embrace new approaches in law while remaining faithful to its original mission of championing free speech.

“This is a thoughtful book for thoughtful people in a democracy where rights and liberties often collide,” Brownmiller writes.

Rights didn’t come without a fight

Wheeler hopes that readership isn’t limited to historians and academics, because legal battles over abortion and gay marriage continue to be passionately debated in courtrooms and political campaigns and attract debate in the media and at the dinner table. That makes it important for citizens to understand how such battles have been fought and won for rights that some of us may take for granted, such as birth control.

Today, birth control is legal and widely available. But in the 1920s, federal obscenity laws banned the exchange of birth-control information in the U.S. mail and in public venues, and some states made it a crime to sell or advertise birth-control products.
Connecticut even made it illegal to use birth control, Wheeler says.

The ACLU’s foray into battles to make birth control and information about it legal began shortly after the organization was founded in 1920 by Crystal Eastman, Roger Baldwin and Walter Nelles.

Birth control had a personal urgency for Eastman and other women founders of the ACLU, Wheeler writes, because in the early 20th century, they lived the lives of bohemians in New York City’s Greenwich Village, consorting with artists, intellectuals, anarchists and other free spirits.

They also engaged in open marriages and relationships, risking pregnancy in an era that didn’t accept unwed mothers. “Women in sexually free relationships with men could hardly hope to participate as equals without, at the very least, birth control,” Wheeler writes.

Nudity also was a personal issue for some ACLU founders and leaders, since they practiced it at a private compound in the 1920s in Martha’s Vineyard.

“In this ‘communal utopia’ of rustic cottages spread over a 40-acre private complex, ACLU leaders relaxed, threw parties, discussed current events, recruited new members, negotiated complicated love affairs and sunbathed together in the nude,” Wheeler writes.

From there, it wasn’t a great leap for the ACLU to take on the cause of nudists in the 1930s by backing the challenge of a New York law that made it illegal for more than two people to be nude in private, Wheeler writes.

That law came about after a nudist group hosted an open house at a rented Manhattan gymnasium for potential nudists in 1934. Police raided the event, and the arrests pushed the case into the legal system.

Championing nudism as a constitutional right wasn’t for the faint of heart in the 1930s, she writes.

Even Pope Pius XII got involved, calling nudism “a wanton, pagan cult.”

ACLU not shy about controversy

Such details make How Sex Became a Civil Liberty both readable and memorable.

That’s because Wheeler has a gift for digging details out of the historical record and turning them into a memorable story, says a colleague in Binghamton University’s History Department.

“Leigh Ann is extremely good at explaining things you may take for granted, and she does it in a very compelling way,” says Douglas Bradburn, an associate professor of history at Binghamton and the author of The Citizenship Revolution: Politics and the Creation of the American Union (2009). “I expect it to be an excellent book.”

While the ACLU continued to gain public stature and rack up victories on sexual issues through the decades, it also was selective about the cases it backed. There were internal arguments about what fights to pick and which ones to back away from, Wheeler writes. But the organization didn’t lose its affinity for colorful and controversial causes over the years.

During the 1960s, ACLU members went to parties at Playboy founder Hugh Hefner’s mansion and sought funding from Hefner’s foundation to fund causes such as fighting obscenity laws and other sexual issues.

In the 1970s and 1980s, the ACLU moved on to rape and sexual harassment as issues, Wheeler says.

But by 1980, membership started to fall off as both courts and the country became more conservative, she says. The ACLU found itself fighting with feminists over challenges to rape laws and sexual harassment, and earlier successes were sometimes a double-edged sword.

For instance, ACLU-backed laws requiring informed consent, including mandatory counseling and a waiting period for poor people seeking sterilization, would be used by anti-abortion groups to impose the same standards on women seeking abortions, Wheeler says.
“A lot of feminists were angry,” she says. “They knew it would come back to haunt them.”

There have been other consequences of sex as a civil right, including a society saturated with sexual images, Wheeler says, and not everyone appreciates the exposure.

“Disagreements about the parameters of free speech and sexual privacy abound,” she writes in the conclusion of her book.

Those battles are likely to continue in the lives of her students, whom she continues to rely on for insights and inspiration, she says.

“From all of them I learn more about how to make history matter to young people today; that makes me a better teacher and also a better writer,” she says.