06/27/2014 10:58 pm ET Updated Aug 27, 2014

Sex and the Constitution: Why Lawyers Aren't Asking the Right Questions

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Watching some of the recent and unfortunate internecine battling about HBO's Prop 8 documentary, (shame on you, Andrew Sullivan) I can't help thinking how unsophisticated the legal arguments around it will appear in a few decades. Not because gay people getting married will be ubiquitous and yawn-inducing, but because new questions will have emerged: Why should the state be involved in recognizing marriage at all? Why should anybody, gay or straight, have increased status and rights because they are sexually and romantically involved with each other? How does this not create a marital apartheid, where those who choose to remain single, are divorced, or simply have not found the "right" person, are deprived of the "plus-one" benefits they could use with friends and relatives instead of a spouse? After all, marriage isn't even mentioned in the Constitution; equal process under the law is.

I recognize most of the United States is not "ready" for this kind of thinking. Even the most anti-gay justices -- and certainly the pro-Prop 8 defenders -- did not challenge the idea that marriage itself is an indispensable component of "life, liberty and the pursuit of happiness." It is just one of many implied rights not spelled out in the Constitution that are now considered "constitutional" (like the right to privacy).

But what about the right to sex? Why, if the right to get married -- though not specifically mentioned by the founding fathers -- is deemed fundamental to unfettered human experience, wouldn't the same argument be made in regards to physical intimacy? Why isn't this right being specifically articulated in the current lawsuits pitting religious freedom against access to reproductive choice?

Another right not spelled out in the Bill of Rights, but virtually uncontested, is that human beings should not have to procreate if they don't want to. We can see this reflected in the exception carved out for cases of rape in so many abortion statutes: if a woman did not engage in consensual sex, it is mostly agreed she should not be forced to bear that child. Similarly, there is no proscription against the celibate. By extension, we can claim another unspecified right as "constitutional": the right to abstinence.

Unfortunately, abstinence is also the only 100 percent surefire method to avoid pregnancy. Condoms break, IUDs fail, doses of the pill can be unintentionally skipped. It would also be disingenuous to ignore the source of a lot of unplanned pregnancy -- impulsive moments fueled by passion, alcohol or both. This is the nature of human sexuality. We don't always weigh potential consequences when the desire to please or be pleased takes hold.

So we have these facts that can easily be stipulated in court:

1. The only certain method of pregnancy prevention is abstinence.

2. If a woman chooses to have sex with non-procreational intent, she needs to use contraception.

3. Some women, as a matter of financial reality, will not have access to contraception or abortion if it is not covered by health insurance.

4. All women for whom contraception and abortion are not covered by insurance cannot exercise concurrent rights to both sexual intimacy and the certainty of not having to bear a child.

This begs a truly basic question that remains unposed before the court: Do women have a constitutional right to have sex? The de-facto reality is that men already do, because even if intercourse results in pregnancy, they do not bear the child and are rarely forced to take responsibility for it if they don't want to. Many mothers prefer no father to an unwilling one, or become attached to someone else.

At present, the lawyers for the Justice Department are being sucked into arguing the case on Hobby Lobby's terms: as an issue of religious freedom. While this may be a thinly-veiled camouflage of familiar cultural clashes of the past century, they do have in their favor that "freedom of religion" is spelled out in the Bill of Rights. Truly creative legal minds would piggyback on the continued expansion of rights not specifically delineated in the Constitution, but increasingly understood as part of "the pursuit of happiness" for the vast majority of Americans. They need to ask the justices if the urge to be intimate and the choice not to have offspring are every bit as essential to fundamental notions of liberty as a belief that the biblical sanction to "be fruitful and multiply" gives an employer the right to edit the medical coverage of his employees.