Civil Libertines

The battle over Phoenix's groundbreaking sex-club ban moves into federal court

That's not entirely true. The Phoenix swingers' clubs that remain open for business are not located in residential or commercial districts, but industrial zones. They're converted warehouses, with no alluring signs to mark their presence. They do not serve liquor, and advertise only in fringe sex publications, such as Arizona People's Exchange, AZ Swingers and The Beat. If not private, Phoenix swingers' clubs are at least extremely secluded.

"It's not like the clubs are on Mill Avenue," says Roe, who is not a plaintiff in the lawsuit but who testified at the March 4 hearing. "The location and environment are worlds apart."

"My wife and I often go to Fat Tuesday's in downtown Tempe with our group of friends, and we have to be very much aware of where we are and what we're doing so as not to draw much attention to ourselves. Even so, you get a lot of negative attention. When everyone comes in with their spouses, and then 20, 30 minutes later people have traded chairs, and the men have their arms around different women, or the women are holding hands under the table, all of a sudden the bartender is watching you, and your waitress is giving you strange looks.

"When you start changing partners in public, it makes most people uncomfortable. A public place is not accepting of that type of behavior. That's what the clubs are for, so I would argue that, yes, they're private in that sense."

They are not exclusive, however, despite claims to the contrary by their owners and lawyers. The lawsuit filed by Phoenix swingers' club owners argues the new law violates their constitutional right to privacy, because, they say, their clubs are strictly private, like the Masons or the Knights of Columbus.

According to the owners and their lawyers, prospective members must present themselves well (which one owner defined in a recent deposition as "no bums, no gang slang") and, more critically, they must convince a club's operators of their sincere belief in the swingers' philosophy of sexual liberation.

"The clubs are private," says Phoenix attorney Christopher Kaup, who filed the federal lawsuit with his law partner Anthony DePrima. "The general public is not permitted."

Judge Silver challenged that assertion at the March 4 hearing.
"Let me ask you, Mr. Kaup, is there a screening committee, an interview process, somebody who determines whether or not they meet those requirements, and then rejects those people who do not share the same definition of sexual liberation?"

"Yes, your honor," Kaup replied. "There is a person at the front door who is there not only to collect money, but to conduct that kind of interview and hold those kind of discussions."

Kaup went out on a limb there, and a thin, dry one. New Times reporters recently joined (to observe only) three of the four swingers' clubs Kaup represents. There was no discussion or interview process. All that was required of the reporters was to walk through the door, provide a driver's license, sign a membership application no one made them read, and pay money. A good amount of money. Although the annual membership fee for Phoenix swingers' clubs is only $5, the "maintenance fee" charged for entrance on weekend nights is $30 to $35 for single men, $25 to $30 dollars for a couple, and $5 to $10 for single women. One owner testified recently under oath that a well-run swingers' club in Phoenix brings in $3,000 to $10,000 a night.

Membership requirements are more stringent for the Arizona Power Exchange, or APEX, a Phoenix S&M club. Before a new member can attend a weekend "party night," where S&M acts (which typically do not involve intercourse) are performed for an audience, he or she must go to a number of Wednesday night lifestyle discussion groups. Phoenix swingers' club owners have said they plan to institute similar policies if their businesses prevail in court.

In a candid moment, city attorney Jim Hays characterizes the private club posturing of Phoenix swingers' clubs as "total horse shit."

"It's all subterfuge," he says. "You can't say they're private because someone fills out a membership form and then, poof--private club, five bucks a year. Come on now. The law is not so easily evaded."

The language of the Phoenix swingers' club ordinance prohibits any person from operating or maintaining a "live sex act club," defined as "a business in which one or more persons may view, or may participate in, a live sex act."

"Live sex acts" in turn are described as "any act whereby one or more persons engage in live conduct which contains sexual contact [direct or indirect touching, fondling, or manipulating of any part of the genitals, anus or female breasts by any part of the body or any object], oral sexual contact, or sexual intercourse."

That language should be struck down, say Kaup, DePrima and their clients, because the acts it describes are constitutionally protected forms of free expression--if they are performed and viewed in the venue of a swingers' club.

"The new ordinance violates the First Amendment because the persons in the clubs are engaged in expressing the viewpoint of social and sexual liberation to other members," says Kaup. "They are communicating a message of love, caring, honesty and trust in relationships, and the other members of the private club understand that message as it's conveyed."

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