Why Are Women Losing While Gays Win? It’s All About Sex.

Pro-life and pro-choice demonstrators protest in front of the Supreme Court.

Photo by SAUL LOEB/AFP/Getty Images

On Sunday, the Daily Beast published a thought-provoking post–Hobby Lobby piece by Jay Michaelson pondering why women are losing legal battles while gay people keep winning. Michaelson gives 10 reasonable hypotheses, but leaves out the two most overwhelmingly obvious possibilities. The first is that Justice Anthony Kennedy likes gay rights more than women’s rights. The second is that feminism, as insidiously framed by the Christian right, is all about sex—while LGBTQ equality has become a battle not for sex, but for dignity.

These two factors might seem discrete at first glance. But in a strange way, Kennedy’s views on women and gays reflects a rift that divides American society as a whole. Kennedy, like a plurality of Americans, clearly views abortion as morally wrong. In one horrifyingly condescending passage from Gonzales v. Carhart, Kennedy infamously wrote that abortion must sometimes be banned to help women understand their “ultimate” role as a mother. Kennedy also conjectured that “some women come to regret their choice to abort the infant life they once created and sustained”—though “we find no reliable data to measure the phenomenon.” These are not the words of someone who understands the fundamental link between reproductive freedom and basic humanity.

But like a growing majority of Americans, Kennedy holds significant empathy for gay rights. Swap out “reproductive freedom” with “liberty for gays,” and Kennedy’s prose turns purple with zeal, bubbling over with support for “an autonomy of self” and “liberty” in its “more transcendent dimensions.” That inconsistency is frustrating—but it’s not surprising. Read Kennedy’s abortion opinions and gay rights opinions side-by-side, and you’ll come away with the sense that, in the justice’s world, gay people are fully actualized human adults, while women who dare to have sex are an irresponsible subspecies whose utility begins and ends at their uteri.

That last point is important. Even in a ruling legalizing gay sex, Kennedy paints in the broad strokes of “liberty” rather than cabining his opinion in a cramped discussion of sodomy. Yet his views on abortion seem deeply informed by a puritanical disapproval of women who have sex for fun. Arch right-winger Justice Samuel Alito’s recent Hobby Lobby opinion evinced a similar sententious squeamishness about non-procreative sex. Conservatives clearly refuse to acknowledge women’s sexual freedom as a fundamental right, instead dismissing the whole concept as a liberal crock meant to excuse women from the consequences of their libidinous actions. 

Why can’t conservatives place sexual and reproductive freedom in the general nexus of personal liberty? Why, in 2014, is birth control more contentious than gay marriage in some parts of the country? The answer, I fear, is that by sticking to its tried-and-true talking points, feminism has stalled near the finish line, while the gay rights movement, by constantly reinventing itself, is already planning its victory lap.

Most of those reinventions have placed a smaller and smaller emphasis on sex, to the extent that at this point most gay rights groups present LGBTQ people as a nearly asexual population of saints. In gay rights parlance, sex became an issue of personal liberty and dignity; sex wasn’t just a fun pastime, but—to quote Kennedy—an “overt expression in intimate conduct with another person,” just “one element in a personal bond that is more enduring.”

The sex that feminism must focus on, however, cannot be painted with such a rosily romantic hue. Birth control and abortion are, by definition, tools to make sex non-procreative. You can’t think about either without, on some level, thinking about sex—and, apparently, not the kind of sex our Supreme Court wants you to have. Whereas gay sex can be tucked away as a vital and private part of a “more enduring” relationship, straight recreational sex remains, in the conservative mindset, a frivolous and possibly immoral activity. Women, accordingly, must bear the burden of their sexual sins, while gays are free to partake in whatever intimate conduct they so choose.

How can gay sex be painted as worthy and even virtuous while straight non-procreative sex remains vaguely shameful? Misogyny, I suspect, and little more. Straight men have always found inventive ways to recast women’s rights as selfish, irresponsible, and licentious. For a brief moment in the 20th century, it seemed they had finally failed, as women gained newfound freedom thanks to feminism. Yet conservatives didn’t so much surrender as retreat. And now they’re back on the attack, playing upon our sexist priggishness to roll back female autonomy. It’s disgusting to watch, but impossible to halt—at least until Americans wise up to the fact that reproductive freedom, like LGBTQ equality, isn’t a question of sexual liberty: It’s a matter of human rights.