One way to describe William Nelson's "Criminality and Sexual Morality in New York" is to say that it is a grand historical narrative that chronicles the doctrinal progression toward the ultimate release of various forms of sexuality from their initial repression within the legal system. Nelson asserts that while the courts of the 1920s and 1930s evidenced repressive responses to a variety of "sexual" issues, they moved to more libertarian positions in later years. There were some readjustments eventually necessary in cases where social forces argued that the freedom had resulted in excesses and extremes, but Nelson's overall story about legal change expresses a belief in the desirability of "progress" and progression.
Nelson identifies as a "central insight" of the article his assertion that "during the 1940s, 1950s, and 1960s, seemingly disparate [legal] developments ... were linked to each other ... by a judicial commitment to conferring sexual freedom on individuals, even when that freedom was carried to excess" (p. 267). This ever-expanding freedom was stopped, occasionally even reversed, during the 1970s, however, as feminists began to articulate the harms they identified as caused by male excesses of freedom. Nelson describes these feminists as "radical" and casts them as the villains responsible for the hiatus in his historical drama.
The ultimate moral of the Nelson tale is not a positive one (nor is it one of progression) in this regard. For the forces of radical feminism unleashed in furious backlash to the increase in sexual freedom-have seemingly destabilized the legal system. In Nelson's view, these women, by ceasing to demand equality (as exemplified by the "liberal" feminist goal of sameness of treatment or assimilation to male norms), have caused a "collapse" in equality "as a coherent concept in regard to gender issues" (p. 340). On the other hand, men whose self-interest is "inevitably at war" with the goals of radical women have articulated "diverse and competing sensibilities and interests [which] produced an ideological stalemate" (p. 341). The legal system (indeed, the progress of society itself) has thus been vanquished as "dynamic legal change became increasingly difficult to achieve, the status quo became reified, and a new conservatism set in" (p. 341). Thus, one is led to believe that, absent radical intervention, liberalism (and liberal feminists) would have won the day and ever-expanding notions of sexual freedom and individual autonomy would have continued to be expressed by courts.
Martha A. Fineman,
Gender and Sexual License: The Plot Might Change but the Message Remains the Same (A Response to William Nelson),
Yale J.L. & Human.
Available at: https://digitalcommons.law.yale.edu/yjlh/vol5/iss2/3