Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Monday, July 26, 2010

Sex In and Out of Intimacy

Laura Rosenbury is a productive and original scholar.  That said, I disagree with almost everything she has been writing recently (see, e.g., here and here), and her new article appears to be no exception, at least judging from my quick glance at the introduction. Here's an excerpt:

This Article challenges the underlying assumption in Lawrence that sex is valuable only when potentially in service to emotional intimacy and proposes a new theory for extending legal protection to a wider range of consensual sexual activities. The current regulation of sex devalues both sexual relationships that lack an intimate component and intimate relationships that ack a sexual component. We argue that the state should independently protect both intimate relationships and sexual interactions because sex can constitute a vital part of individual identity and self-expression even when not channeled into intimacy. Other legal scholars have argued that intimate sexual relationships should be protected outside of marriage, or that sex and marriage should be separated from state support for families. Our project is unique in that we extend the deconstructive project to intimacy in general, arguing that sex should be decoupled in the legal sphere from both domestic relationships and other traditional forms of emotional intimacy. We thus challenge the dominant, almost sacred, understanding that the most important relationships between adults should always be both sexual and emotionally intimate.


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I guess this makes sense in a very rational way, as it is the logical extention of existing legal developments -i.e., "how can the state justify discrimination on the basis the quality of sex one experiences with oneself or with another individual or among other individuals." This is the necessary consquence of removing the original public policy reason for favoring traditional man-woman hetrosexual marriage as the type of sexual relationship that results in new life absent any technolgical interventions. Consequently, it is very difficult offer any real support in favor of state discrimination on the basis of quality of sex (intimate v. anonymous or whatever)- such support cannot but appear arbitrary.

Posted by: Brian | Jul 26, 2010 3:38:58 PM

Aldous Huxley eat your heart out.

Posted by: Matt Bowman | Jul 26, 2010 6:09:12 PM


Very thoughtful 6-word answer to a 60-page article.

Posted by: David Nickol | Jul 26, 2010 8:17:47 PM

Increase the contradictions!

Posted by: WJ | Jul 26, 2010 10:20:32 PM


I agree that Ms. Rosenbury appears to be a productive scholar, but how "original" is she, really? As Matt's points out, Huxley, and plenty of others, have already been where she seems to want to go.

I have not read the full article (the link doesn't seem to work), but I am unsure I would have the patience to read it anyway.

What does she mean by "the current regulation of sex", exactly?

"sex should be decoupled. . . " - unintentionally funny

While I can understand wanting some legal protections for intimate non-sexual relationships for the purpose of sharing legal obligations and rights, I have no idea what types of "protections" she envisions for non-intimate sexual relationships.

"deconstructive project" - blech. Why can't "scholars" just say what they mean?

Posted by: Peter Small | Jul 27, 2010 8:35:19 PM

Re: Peter Small on "deconstructive project"--as I understand it, to perform a "deconstructive" analysis on a piece of text or argument is to show that a hierarchized dichotomy operative in said text or argument (eg. "reason/passion" "mind/body" "masculine/feminine") collapses upon close inspection. I think that she means merely "critical" or "revisionist" project, not a "deconstructive" project in the strict sense.

Posted by: WJ | Jul 28, 2010 11:52:42 AM