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Last month’s two most relentlessly covered news stories — the end of HBO’s “Sex and the City” and the beginning of the gay marriage maelstrom — offered the kind of irony lawyers usually miss. But while television audiences fixed on lesbian nuptials and the love lives of four New Yorkers, lawmen busied themselves with sex beyond Midtown and Market Street. Even as the president was urging us to write sexual preference into the Constitution, federal agents were poring over women’s abortion records; national lawmakers were assessing the “decency” of Janet Jackson’s nipple; and Texas prosecutors were gearing up for the trial of a woman who’d sold vibrators to housewives. But why the sudden collision of sex and statute? How do we manage to confuse anatomy, legal relationships and romance in the first place? Why does law — as Carrie Bradshaw might have pounded out on her Apple — continue to be turned off by sexuality? American jurisprudence doesn’t know good sex — or even what sex is. A discipline that draws fine distinctions between the motivations for so much human behavior, law lumps the actions that arise from dozens of wildly diverse mental states — physical desire, interpersonal communication, proliferation, biological identification — into one term, “sex.” The muddling produces even more muddling, with law ultimately addressing the relationships generated by institutions as diverse as the IRS, Monique’s House of Bondage and the Catholic Church according to a single standard, “sexual.” The confusion isn’t universal. It’s old news to anthropologists that many societies make no connection whatsoever between physical pleasure and reproduction, anatomy and desire, copulation and marriage. But if the commingling of concepts is a cultural construction, who’s constructing it and why? The clue is the concept. Law derives its assessments of everything related to sex from a single premise — the notion that vaginal penetration is natural and that anything else is deviant. Sure, we’ve loosened up a bit. But 30 years after “Deep Throat,” vaginal intercourse is still the standard. It’s also history’s best racket. Culture probably began its encouragement of vaginal intercourse, and its legal discouragement of everything else, with the best intentions. Nature — in plague and pestilence — was handling Zero Population Growth on its own. Then economics — the ownership of private property (“Who’s seised of the fief?”) — came into the picture. So did the chastity belt, still the best reminder of how law’s commingling of pleasure, reproduction, marriage and capital really looks. Over the years, the vaginal model worked out well for the guys topside. After all, every act of vaginal intercourse was its own little political advertisement: Men on top is what nature decrees for everything. But as it happens, men on top isn’t even what nature decrees for sex. Zoologists have observed same-sex mating activities throughout the animal kingdom. Among humans, vaginal sex may not even be the majority candidate. Studies report that up to 70 percent of American women prefer clitoral to vaginal stimulation. Men, as the nation’s lawmakers finally recognized in Monica-gate, have long been happy at the drive-through window. The implications are political, not prurient. If penetrating the vagina isn’t nature’s mandate for sex, maybe it isn’t nature’s mandate for the Senate either. Not surprisingly, the folks who’ve gotten used to the driver’s seat would prefer not to talk about that. They discourage conversation with law. Law does know sexual silence. The “love that dare not speak its name” was a penal code matter centuries before it became a cliche. “Don’t Ask, Don’t Tell,” as we’ve come to find out, doesn’t guarantee personal choice; it does ensure that Americans don’t talk about how many of its heroes are homosexual. Federal regulations ban the discussion of birth control alternatives. And the lawsused to prosecute saleswomen in two well-publicized vibrator cases — Alabama’s Williams v. Pryor (2001), and State v. Webb, pending in Texas — barred the teaching of self-stimulation techniques at Tupperware-style “passion parties.” Yet inquiring minds want to know. The Williams trial’s most stunning revelation may have been that the defendant had sold 10,500 sex toys to Alabama housewives in a single year. But American jurisprudence refuses to acknowledge that Carrie Bradshaw’s “City” might have been Selma or San Angelo. So HBO did what law wouldn’t: Its hit series allowed American women to talk about alternatives to the traditional model for sex. “City” raised eyebrows with its demonstrations — hilarious, rather than erotic — of sexual activity. But what the series’ women did was never as important as what they said about it. And the series foregrounded the women’s dialogue. Protagonist Carrie Bradshaw (Sarah Jessica Parker) wrote a popular commentary on sexual practices and then framed the sexuality question at issue in each episode. Carrie’s week culminated in ritual, a conversation-centered Saturday brunch with her three best friends. Critics complained that “City” restricted its attention to attractive, financially secure white women. But by removing the variables that normally diffuse women’s choices — racism, money, appearance, violence and inadequate birth control — the series kept the focus on sexuality. Its characters weren’t demographic tropes; they represented sexual discourse, each a professional in one aspect of cultural communication, and each possessed of a different attitude toward sexual practice. Attorney Miranda Hobbes (Cynthia Nixon) presented the conflicted professional, circumspect enough to succeed in law and smart enough to recognize it as an institution that has seldom worked in women’s interest. Charlotte York (Kristin Davis), a prim art curator, might have been a throwback to days when ladies lunched. But the patrician Charlotte arguably offered the series’ most subversive element — a character whose sexual etiquette and complicated marriages exposed the extent to which feudalism still defines America’s attitudes about sex. Samantha Jones (Kim Cattrall), a sexually assertive publicist, was the eldest and the most unrestrained of the quartet: “I’m try-sexual. I’ll try anything.” But if Samantha got the series’ best lines, she also set forth its political context, linking “City” and the American women who, two decades ago, pushed language and libido to the limit, hoping to provoke real sexual equality. If American jurisprudence has restrained us from examining the full range of human interactions, “City” never made that mistake. In the end, the series’ exploration of all the things law labels “sexual” filled six seasons. Perhaps because “City” ran so long, we occasionally forget that it did something pop culture had never — ever — done before. The series allowed women to talk about their sexual pleasure openly, as a natural part of life. Saturday brunches brought one of America’s most political secrets — that women don’t actually require men for sexual gratification — right to the table, and then offered examples: vibrators, adult movies and masturbation fantasies. (“George Clooney is like Dior; he never goes out of style,” Carrie said of mental imagery.) Of course, “City’s” talk got around to shared pleasure, addressing intercourse in all its manifestations — phone sex, acrobatics, erotic trends and aesthetic turn-offs. Carrie’s friends listened with interest and learned without judgment. “I know I’m in the sexual Slow Group, when even Charlotte has tried that,” Miranda complained. Moreover, the series revealed that real people occasionally have intercourse for reasons wholly unrelated to either sexual gratification or reproduction — to comfort or to cajole; as revenge or as the course of least resistance; to communicate or to conceal having nothing to say. Physicality was only part of the plot. On-going storylines explored complex relationships in which hormones and bonhomie overlapped, producing complex dating rules, contemptible infidelities, big mistakes and broken hearts. In its long-term pairings — Carrie and Big, Miranda and Steve, et al — the series showed that real relationships don’t evolve the way Mom said they would: ex-boyfriends become lovers, sexual partners become friends, lovers become litigants, pals become parents. But for all the intermingling, the series never forgot that difference and desire are very different aspects of human association. Just when the women’s sex lives reached critical mass, “City’s” gay characters reemerged, reminders that the distinctions between affection, anatomy and sexual availability are ultimately clear — and occasionally enjoyable. “Just because I don’t eat at the restaurant doesn’t mean I can’t hear the specials,” Carrie’s friend Stanford (Willie Garson) offered in praise of “The Vagina Monologues.” “City” knew sex, and it recognized reproduction as an entirely different concern, addressing impotence, unplanned pregnancy, fertility treatments and preservation of the patriarchal line. Then the series showed parenting as yet another animal, imposing burdens both gender-inscribed and individual. “City” didn’t address abortion directly because it didn’t have to. The quartet’s intellect and economic independence offered a running commentary on a political agenda that has made women’s sexual freedom as much a commodity as Manolo sandals: Women remain free exactly to the extent they can pay for it. Yet “City” went after another insidious aspect of reproduction politics head-on: the marketing of motherhood in the guise of women’s self-actualization. Weary of acquaintances who use their children to justify rudeness — an implicit punishment of the childless — Carrie created a gift list at her favorite shoe store and threw a shower for herself. For all their daring, “City’s” women were never entirely free. But the series made the quartet’s vulnerability to media’s real capitalist tool — Vogue — the subject of its sharpest critique. Carrie’s shoe collection became series legend, but it also became a culturally imposed addiction that kept her from owning real property. Unquestioning, the women pursued beauty in procedures that left them chafed and chagrined — and wiser. Eventually, even body-conscious Samantha balked at the double standard commercial beauty imposed against women: “You have a lot of nerve telling me to get a wax,” she shouted at a sex partner. “If you were in Aruba, the natives could bead your back.” “City” always recognized women’s most potent political enemy — that great amalgamator of lust and marriage licenses: romantic love. The quartet stalked “the real thing” to the end of the series. But “City” disfigured its fairy tales: Charlotte and her picture-perfect husband (Kyle MacLachlan) posed for House and Garden, but separated even before the issue appeared on the newsstand. The series’ final episodes left Samantha, Miranda and Charlotte in settled relationships; yet the partnerships were hardly what they had imagined. Carrie’s friends found love, but in lives that also entailed stomach flu and disabled family members, childlessness and chemotherapy. Only Carrie, in finally committing to Mr. Big, seemed to have found Mr. Right. And that finale produced a firestorm. Some series devotees complained that “City” had undercut its feminist message with fable. Others insisted that any other solution would have destroyed the themes built over the course of 90 episodes. In fact, the series ended by being true to itself. The arguments missed something extraordinary in American story-telling: the unequivocal message that women who question men’s sexual dominance make their lives better, not worse — not the long declines and symbolic deaths that movies have schooled us to expect. Most importantly, the arguments overlooked that there were arguments. That women were questioning media’s representations of relationships. That a series had challenged women to talk openly about sex � and that, by golly, women were doing it. That “Sex and the City” — enduring in syndication, on DVD, and in women’s ongoing conversations with each other — offered sexual liberation everywhere. Terry Diggsteaches courses on law and film at Hastings College of the Law and Golden Gate University School of Law. Her e-mail address is [email protected]

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