In America, as in the West more generally, the individual person is considered to be the autonomous agent of action, valuable in and of himself or herself, and the unit through which larger groups are comprehended (c.f., Barnett; Dolgin; Dumont; MacPherson). The significance of this particular construction, which seems perfectly natural to us whose own social order is based on its implications, can be compared to other societies in which alternative constructions pertain. American law is based explicitly on the presumption of the autonomous individual who should, ideally, be treated as equal to all other individuals. For instance, the dictum, basic to Americans, that individuals should receive equal treatment is absent in the world of traditional-caste India, which relies on its own fundamental dictum that people are unequal because created unequally (Barnett). For the sociologist, contemporary efforts in the United States, by both judicial and legislative means, to rectify actual inequalities provide a particularly apt place within which to examine the society’s conception of itself. The contradiction contained in “separate but equal” is now patent and such separation is illegal. Other contradictions remain implicit. Programs such as affirmative action, first effected through executive orders during the Johnson administration and based on legislation in the 1964 Civil Rights Act, entail official recognition of ext inequalities and governmental efforts tow rectification. The inclusion of sex in the legislation, along with race, color, religion, and national origin, may well have been a contingent and not particularly well thought out addition. However, for the legal situation of American women in the past decade, the consequences have been vast.
While the above is intended to illustrate general connection between a society’s not of the person and its substantive law, the examples of discrimination, specifically of sex discrimination, speak more directly to the interrelation between sex and law. Legislation relating to sexual discrimination may seem legally peripheral to laws constraining sex acts. Yet prescribed or prohibited treatment of women as a group (in contrast to men) must, from within a sociological point of view, be related to more general understandings of both social and sexual ties between men and women. Surely, a basic aspect of personal identity in American society is sexual identity. Gender identity (the fact of being male or female) fundamental to, though not inclusive of, sexual identity. Social roles and definitions, insofar as they pertain to or limit the behaviors appropriate to men and women, encompass conceptions of “proper” and “improper” sexual relations between people. Obviously sexual relations occur between members of one sex; until recently homosexual relations have been illegal; in most of the United States. In large part, views of homosexual relations have been defined through their contrast with “proper” sexual relations. The prototypical example proper sex in America is sex between men and women married to each other. Images of sex intertwine with images of women, men, and the family.
It is useful to look at American notions of the family and of sex within that context before turning to legislation concerning sex and to recent changes in that body of law. The paradigmatic relation of sexual love in American culture is that between spouses. Sex is not only presumed proper within the context of the marital bond but is presumed necessary. This presumption has legal as well as more general consequences, and within this context, sex has traditionally been considered proper primarily for the purpose of procreation. The bond of marriage is defined by the law and allows the legal reproduction of people in the form of the family. David Schneider, in his study of American kinship as a cultural system, has identified sexual intercourse as the key symbol of American kinship. This is so, in that sexual intercourse combines the two aspects of kinship as it is understood by Americans: “blood” (or substance) and code-for-conduct or law. Through intercourse, the archtypic relation in law, marriage, is expressed and relations in “blood” (child/parent) are created. The duality of relations in blood (or substance) and in code-for-conduct or law is predicated upon more general notions of nature and culture, respectively. In this frame, relations in law include not only those which are the explicit content of legislation but also relations based in lawlike, ordered sets of interactions. Schneider suggests that in American culture a similar structure of relations in “blood” or substance and relations in law underlies the cultural construction of nationality and religion as well as of kinship.
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