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University of Miami Law Review



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In her article, The (Non)-Right to Sex, Professor Mary Ziegler excavates the fascinating legal history of the “sex gap” — the historical failure to address sexual liberty — in the constitutional canon and offers an important cautionary tale for contemporary advocacy of marriage equality. By surfacing lost efforts to expand sexual liberty, and by linking that liberty to intersectional concerns about class, gender, and racial equality, Professor Ziegler both explains why sexual freedom has received such limited constitutional protection and shows how incrementalist litigation strategies aimed at progressive legal change have inadvertently strengthened the state’s power to delimit sexual expression. This brief comment builds on Professor Ziegler’s article to highlight how the sex gap in the Supreme Court’s foundational equal protection and substantive due process cases limits not only sexual liberty, but also continues to impede sex equality under the law. This comment highlights the sex discrimination aspects of Griswold v. Connecticut that the Court ignored and adds Geduldig v. Aiello to the list of the Court’s canonical cases that took apart the connections between sexuality, reproduction, and sex equality in constitutional analysis. The Court’s disassociation of sexual liberty, reproductive liberty, and gender equality from one another has impoverished all three interrelated aspects of women’s right to equal citizenship.



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