Sexual Freedom: The Limits of Equality Under the Law

May 17 was the seventh anniversary of the ability of same-sex couples to legally marry in Massachusetts. The Supreme Judicial Court’s decision was the first in the nation, with four other states and the District of Columbia quickly following suit. But as the Lesbian, Gay, Bisexual, and Transgender (LGBT) movement progresses, it is vital that we also remember the long history of women and men demanding, not just equality under the law, but the freedom to make decisions about all aspects of their personal behavior.

The ability to make these choices was, for many, understood to be the bedrock of both individual and collective freedom. Certainly this tradition is embedded in the earliest incarnation of the LGBT movement in the 1950s—the Mattachine Society and the Daughters of Bilitis. A great deal of their organizing was predicated on allowing people to have sex without being arrested. One of Mattachine’s earlier actions was to protest the 1952 arrest of Dale Jennings, one of their members, for allegedly making a pass at a police officer in a men’s room in MacArthur Park (then known as Westlake Park). Whether Jennings was entrapped or not was a moot point as the Mattachine Society insisted that the law itself was wrong. Jennings demanded a trial and was acquitted  because the jury voted 11-1 that it was a case of police intimidation. This brought national attention to the Mattachine Society and was an unheard of  victory for the time.

By the late 1950s the Daughters of Bilitis were printing articles in their publication the Ladder exploring ways that mothers who had been married, but subsequently came out as lesbians, could contest child custody suits that had denied them rights to their children because the mothers were presumed to be engaged in illegal sexual conduct. Freedom from state interference in their sex lives was more important than strict equality under the law. 

Much earlier, we see this resistance in the works of Walt Whitman and his celebration of all sexuality—including same-sex love and activity—as the root of American democracy. In “Song to Myself” he writes about having sex with his soul and connecting this to a vision of democracy.

Whitman’s poetry is elusive, but Victoria Woodhull—feminist, spiritualist, and free lover—is clear about her political demands for personal sexual freedom. In an 1871 speech to an audience of 3,000 in New York a year before she became the first woman to run for president on a national ticket, she remarked: “Yes, I am a free lover. I have an inalienable, constitutional, and natural right to love whom I may, to love as long or as short a period as I can, to change that love every day if I please, and with that right neither you nor any law you can frame has any right to interfere. And I have the further right to demand a free and unrestricted exercise of that right and it is your duty not only to accord it, but, as a community, to see I am protected in it. I trust that I am fully understood, for I mean just that and nothing else.”

Woodhull’s insistence on the doctrine of free love and the constitutional right of every American to keep their sexual partners for as long or as short a time as they choose is as breathtaking now as it was then. This sense of sexual justice is also contained in the speeches of labor organizer Emma Goldman who, at the turn of the 20th century, called for an end to laws that criminalized homosexual behavior. In her autobiography she relates a discussion with a German doctor over the trial of Oscar Wilde: “I told the doctor of the indignation I had felt at the [1895] conviction of Oscar Wilde. I had pleaded his case against the miserable hypocrites who had sent him to his doom. ‘You!’ the doctor exclaimed in astonishment, ‘Why, you must have been a mere youngster then. How did you dare come out in public for Oscar Wilde in puritan America?’ ‘Nonsense!’ I replied; ‘no daring is required to protest against a great injustice’.”

Goldman focused on legal arguments to stop the state from interfering in the sexual lives of individuals, but her compatriot Alexander Berkman wrote movingly of his own homosexual experiences in prison where he had been sentenced for his attempted assassination of Henry Clay. Here he relates a story a fellow prisoner friend told him about suddenly finding love behind bars: “For two years I loved him without the least taint of sexual desire. It was the purest affection I ever felt in my life. It was all absorbing, and I would have sacrificed my life for him if he had asked it. But by degrees the psychic stage began to manifest all the emotions of love between the opposite sexes.”

It was not just the free lovers and anarchists who promoted ideals of personal liberty and freedom from state interference in their lives. It is a tradition that goes back to other revolutionary visionaries. But what is important here is that each of these writers and activists—as well as others—saw their liberation movement as part of a larger political movement for the freedom of all people to live their lives without government or social interference. This is the beginning of what we now call coalition politics.

This vision has been, to some degree, lost to the contemporary LGBT rights movement, as they have narrowed their focus to the needs of LGBT people and equality under the law. While attaining the right to marry is an important step in that goal, the reality is that this will affect very few people. Placing this in a broader context of other liberation fights or other idealized goals of freedom helps demonstrate that this step is part of larger struggle and that for LGBT people these traditions of sexual freedom are vitally important because they were the first manifestations of resistance to the dangerous, often deadly, attitudes that have permeated American culture.

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Michael Bronski is a senior lecturer in Women’s and Gender Studies at Dartmouth College. His books include A Queer History of the United States (May 2011), the first volume in the ReVisioning American History series from Beacon Press.