Discover more from Other Feminisms
Intimacy Isn't Individualistic
The limits of discussing sex in terms of privacy
This week, I have a roundup of responses to our discussion of sex, intimacy, and individualism. Next week, I’ll share some of your book recommendations.
To close out the year in 2021, I shared two excerpts from Maggie Nelson’s On Freedom: Four Songs of Care and Constraint, both focused on the limits of a contractual/consent framework for sex and intimacy. (I’ll refresh your memory with a snippet here.)
On the one hand, it makes sense to think of sexual freedom, as Janet Jakobsen and Ann Pellegrini do in Love the Sin: Sexual Regulation and the Limits of Religious Tolerance, as "the freedom to form human relationships"—in other words, as the freedom to do something, make something, be something, together. On the other hand stands the fact that, in the United States, many of our most basic and hard-earned sexual freedoms (such as the right to use contraception, procure an abortion, or engage in sodomy) are legally dependent on principles of individual liberty derived from a "right to privacy…”
Nelson had a certain degree of misgivings about rooting a fundamentally relational freedom in the privacy rights of discrete individuals. I have my own misgivings about discussing a positive freedom (a freedom for excellence) in the language of negative freedom (a freedom from interference).
I kicked over the discussion to you, asking both about the “right to privacy” framework and positive and negative freedom.
The most compelling part of a privacy argument is usually the level of state involvement in citizen's private lives that would be required to enforce a law. This argument is strongest for matters such as sodomy, contraception, and abortion. It's hard to imagine how the state could enforce such laws without truly unconscionable levels of surveillance on its citizens. With some of these issues, maybe you could come up with a workaround where providing the service is criminalized while utilizing it isn't, but this definitely doesn't work for questions of what kinds of sex you can have.
I don't really buy the privacy justification for questions of who should be allowed to marry. Secular marriage, with all its privileges, is something that is given to citizens by the state because it makes societies more stable and encourages them to flourish, and that might well mean that some potential marriages are excluded. I don't see how it flows from my freedom or privacy that my choice of partner must come with tax privileges.
In fact, it is so hard to enforce laws about exactly what kind of sex people can have, that it is pretty likely that in Lawrence v. Texas, the case that overturned sodomy laws, that the alleged participants did not have sex with each other at all. They simply were willing to be charged and go through the sequence of appeals to SCOTUS.
This is part of why I think privacy arguments are much more relevant to the question of what laws can police than what right conduct consists of, and how we should try to help each other live well, relying on more tools than police power.
After all, it’s impossible to police private sex acts at the level of surveillance needed to adjudicate (beyond a reasonable doubt) most questions of date rape, but we still want to strongly discourage these acts, and sometimes to charge the perpetrators.
One of the primary sticking points in the relationship was whether a sexual relationship could be glancing. Both participants reached for friendship as an (imperfect) analogy for sex—Does a meaningful relationship have to build slowly or can it crash into deep intimacy in a single night?
Late in the article, Belknap lands on what, in his view, distinguishes sex from other kinds of love and admiration:
Sex with someone can be a celebration not just of your relation with that person, an instantiation of that relation in bodily form; sex can be a celebration of the good that you and the other person want to pass on. Or, put a better way, the good can be what draws us into the bodily relation in the first place. Or, put bluntly: we can be sexually aroused by the good.
This borders on an idea familiar to most of us already, the idea that we could find someone sexy because they are good at something. But it is a further step to say that, even after initially finding someone sexy because of something good, we then go into the sexual act trying to have sex with whatever is good about them. I do want to say this, or at least metaphorically, with one of those metaphors that may not be a metaphor. I want to say that we could be aroused by their mathematical ability, or their gracefulness, or their biting wit—but because we can’t literally have sex with their excellence—penetrate it, wrap ourselves around it, massage it, whatever—we can be thankful that they also have a body.
In Belknap’s articulation, sex is never simply about one’s own gratification or a compromise to use each other. It’s an earnest admiration of the good and another person’s participation in the good.
It is a triune relationship, between both participants and the Good they both recognize in each other. It may be private from the state, but “private” or “individual” are hardly the natural words to describe it.