Civil Libertines

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

Ronald Roe is a wife-swapper.
The 31-year-old psychiatric case worker for a Valley hospital enjoys, on frequent occasion, watching his wife copulate with other men.

And Ronald's wife, a software engineer, fondly encourages him to have sex with other men's wives, usually while she's in the same room, having sex with other men.

Roe (not his real name) says he and his wife discovered their sexual nature about six years ago, before they were married. The two were in grad school, and double-dated with the same Tempe couple nearly every weekend. Usually, he says, all four wound up back at one of their places after dinner, watching a movie in the dark.

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"One night they started making out on one side of the couch, and we started making out on the other. Gradually, we became aware of what was happening, as we watched them and vice versa. Eventually, we all started touching one another while making out, and it evolved from there."

Today, Roe and his wife have relationships with four other married couples in the Valley who are fellow swingers--consenting adults who practice group sex, spouse swapping, voyeur/exhibitionism and other self-proclaimed acts of liberated sexuality. Of those four couples, Roe says, he and his wife are especially close with one--he calls them Karl and Sharon. "They're our best friends," he says. "Sharon is my other wife, and Karl is my wife's other husband."

Roe arrived for a recent interview (on his way to a Suns game) with two wood-framed photographs of him, his wife, Karl and Sharon together on a vacation last fall in the West Indies. In one shot, the two couples are dressed to impress in the living room of Roe's time-share condo, linked arm-in-arm. In the other, they're swimming naked in sapphire waters.

"We travel together a lot," Ronald says. "We're at each other's houses for Thanksgiving and Christmas. We take care of each other's sick children. Sex is an integral part of our relationship, but our relationship is more than sex."

Roe and his wife met their friends and lovers (all four couples) at two of the six swingers' clubs in the city of Phoenix--Club Chameleon, which opened in January 1997, and Sociables, which has been around for almost 30 years. Both clubs are now outlawed in the city of Phoenix for being what they are: out-of-the-way places where adults gather to socialize, dance and, sometimes, have sex, either in private or public chambers.

On December 9, the Phoenix City Council made sex-law history when it unanimously passed a new ordinance that makes it a crime to own or operate a swingers' club in Phoenix. The Scottsdale-based National Family Legal Foundation, a conservative Christian organization, helped Phoenix city attorneys draft the law.

The ordinance is the first of its kind in this country, and appears primed to spark a monumental battle in the legal war over the business of sex in America.

Until Phoenix, no U.S. city had passed a law specifically banning swingers' clubs, which have quietly existed in most major metropolitan areas since the early to mid-1970s.

Now, officials in at least four other cities, including Las Vegas, Nevada, and Indianapolis, Indiana, have drafted their own swingers' club laws, using the Phoenix ordinance as a model. Before they make their next move, those officials are waiting to see how the Phoenix law stands up to the first waves of a constitutional attack in federal court.

Locally, the city of Glendale was more keen. In January, its city council, without any public hearings or debate, unanimously passed an exact replica of the Phoenix law, even though there are no known swingers' clubs in Glendale. "The simplest way to get rid of them was not to allow them in the first place," says Glendale city council member Phil Lieberman. "I'm pro-business, but I'm not pro-dirty business."

Since the Phoenix ordinance took effect January 8, five of the six swingers' clubs have remained open in violation of the law. The owners of four of them have filed a federal lawsuit against the city, alleging the ordinance violates the U.S. Constitution.

That lawsuit will likely go to trial this summer. In the meantime, the clubs have asked U.S. District Court Judge Roslyn Silver to prevent the city from enforcing the law until after the trial. Silver heard arguments and testimony for and against the injunction on March 4, and should make a ruling before the end of the month.

Phoenix city attorney Jim Hays (who authored the swingers' club law and is leading its defense in court) says that if Judge Silver rules in the city's favor, the grace period between the enactment of the law and its enforcement will come to an end.

"The wheels of justice sometimes turn slowly, but they are turning," says Hays. "We have a pending case here. Hopefully we'll get a favorable ruling. And if we do, and these places are still in violation of the law, those wheels will pick up speed.

"Of course, we're not going to do anything to prevent these men and women from practicing the swinging lifestyle in their private homes, as they have for years and will do so for many years to come. Please enjoy. Just don't run them as businesses. That's all. And don't run six of them in the city of Phoenix. Some things are just better kept in private, in your bedroom. And there's nothing private about sex clubs."

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."

In other words, fellatio, cunnilingus and fornication fall behind the shield of free speech in the context of a swingers' club, because they communicate a clear social, moral and political message, controversial as it may be. Or so goes the argument.

Hays seemed to enjoy himself in several stormy depositions preceding the March 4 hearing, as he prodded club owners to explain precisely what message sex acts in their businesses deliver.

In one interrogation, he asked Club Discretions owner John "Dutch" Van Brunschot, "Have you ever seen two people have sexual intercourse on the club premises while the club was open to the public?"

"Yes," Van Brunschot replied.
"Do you recall if you heard any message coming from them at the time?"
"You mean like moaning?"
"That," Hays said. "Anything."
"Sure," Van Brunschot continued. "Lots of moaning."
Later in the deposition, Hays gave Dutch another chance.
"Have you and your wife ever had sexual relations at another social club?"
"Probably did. Sure."
"Can you tell me what message you were sending at that time, if any?"
"That I enjoy doing it."

DePrima interjected and threw his client a life line. "Were you letting her know you love her?"

"Excuse me, counsel," Hays retorted. "I'm not taking your deposition. I'm taking his. If you want to be a witness, open up a club."

Still later, Hays posed the message question one final time.
"This message stuff, I mean, I guess--you know, I only went to the seventh grade, you know," a flustered Van Brunschot replied. "I'm not trying to send messages. You know, who am I sending a message to? Am I sending a message to you? That's the way I express myself. I do what I like."

In a separate deposition, Willian "Billie" Marcus, co-owner of the west Phoenix swingers' club Guys & Dolls, was more eloquent in describing the message of swinging.

"The lifestyle is a very open-minded philosophy in which couples who are at the core of it espouse an open and trusting attitude toward physical expression not only with their partner, but with other people, usually with their partner present. It also requires a hundred percent from both partners in terms of commitment and trust, and that is why you don't have the bulk of the population espousing it, because they just don't have it in them to do that."

Hays then played sexual inquisitor, questioning Marcus on specific acts performed at Guys & Dolls.

"Have acts of oral sex, the man performing on the woman, ever occurred on your premises?"

"Yes," Marcus answered. "I've seen people express themselves that way."
"And have acts of oral sex, the woman performing on the man, occurred on your premises?"

"Yes, I've seen people express themselves that way."
"And have you ever seen any acts of anal sex on the business premises?"
"No, I have not seen people express themselves that way."
Hays seemed to belittle her answers.

"Do you think you're making some kind of legal point by characterizing all these things I ask you about as expressive?" Hays asked.

"No."
"You're not in any way attempting to justify the operation of your business by hiding behind the First Amendment to the United States Constitution; is that true?"

"I'm not hiding behind anything. . . . I believe it's in the--what was that thing, that deal that lists all the different amendments? This whole case is about that."

"That deal" would be the U.S. Constitution, and the lawsuit against Phoenix will decide whether it guarantees the right to have sex with someone else's spouse, or your own, for that matter, in a licensed club setting.

There is no clear case precedent on whether a city or state can outlaw swingers' clubs, because no government had done so before Phoenix.

Club lawyers Kaup and DePrima have on their side a famous 1974 U.S. Supreme Court decision (Spence v. United States) which holds that nonverbal conduct is expressive and entitled to First Amendment protection if 1) it is intended to convey a particular message, and 2) there is a substantial likelihood that the message will be understood by those receiving it. (The case was brought by a defendant who was charged with a crime for taping a black peace symbol on both sides of an American flag to protest the Vietnam War and Kent State massacre.)

Before city attorney Hays penned the final draft of the sex-club law, he contacted lawyers at the Scottsdale-based National Family Legal Foundation and requested their help in finding court decisions that can be cited in support of prohibition of such clubs.

NFLF lawyers and law clerks put together a legal brief that centered on a 1986 Supreme Court decision (Arcara v. Cloud Books Inc.) concerning an adult bookstore that was shut down after police received reports of prostitution occurring on the premises, allegedly with the knowledge of management. The owners of the bookstore sued, arguing the closure violated their First Amendment right to sell books. The court was not persuaded, and ruled against them.

The difference between Phoenix swingers' clubs and the bookstore in Arcara, though, is that prostitution is illegal, bookstore or no bookstore, whereas swingers can legally swap partners to the limits of their desire in a private residence.

"The sexual conduct inside [swingers' clubs] is not prostitution, it is not sexual contact with minors, it is not sexual assault," says American Civil Liberties Union lawyer James Belanger, who is working with Kaup and DePrima on behalf of the clubs. "If it were, the city would have an independent basis to prosecute and close the clubs. The city does not have this basis."

The city also has no business working closely with the National Family Legal Foundation, fumes Kaup.

"They [the city] have a hundred lawyers over there, and they're having some right-wing Christian group do their research for them? I think that's completely improper. Knowing that, you have to ask yourself if, by banning adult social clubs, the government of Phoenix really, truly acted in the interest of the broad population of the city . . . or if the government acted at the behest and with the assistance of a group with an overt political agenda, and a very narrow interest that does not reflect the broad population of Phoenix.

"I believe the government working hand-in-hand with such a group to pass a law restricting the liberties of a small minority is offensive to the basic principles of democracy."

Hays shrugs that off. "They [the NFLF] have a lot of attorneys, just like we do here, but they specialize in areas of this sort. I have a million other things to do, so, yes, I requested their assistance."

The city attorney also says he believes the sex-club ban does represent the majority opinion of Phoenix citizens. Put to a vote, he says, the law would stand.

"I don't believe most people, even punching a ballot in secret, are going to say, 'Yeah, let's have a sex club on every corner.' I think some people might say, 'One or two, okay, people are entitled to that much aberrant behavior,' but where do we draw the line--six? Sixty? Six hundred, until every back room in every Circle K is a sex club? Or should we keep it like we keep most things sexual in this society--kind of under wraps?"

The law banning swingers' clubs originated in the city council's Ethics and Public Safety Subcommittee, chaired by councilman John Nelson.

In September, Nelson received a shocking letter, purportedly written by the mother of a 15-year-old girl. The author alleged her daughter was allowed into Club Chameleon, where an unknown person asked her to dance naked and perform sex acts in exchange for money and drugs. The letter contained no contact information for verification, and was unsigned.

Hays forwarded the letter to City Manager Frank Fairbanks, who sent a copy to Police Chief Harold Hurtt, with this cover letter: "Attached is a letter which was sent to City Council concerning the Chameleon Club [sic]. Apparently, minors are going to this club for sex and drugs. Please take effective enforcement action."

According to City of Phoenix interoffice memos, the Phoenix Police Department's Vice Enforcement Unit assigned four undercover officers to investigate Club Chameleon. The officers found no violations of any law. The detectives even checked the identifications of several female patrons and found they were older than 18.

Those same detectives then investigated three other swingers' clubs--Impressions, Encounters and Sociables II--and observed no crimes.

Before city council members voted to approve the sex-club ban, they--and the public--were presented with a thick "Factual Report" of information on Phoenix swingers' clubs. This record contained lengthy undercover reports by a zoning official identified only as "Inspector Z," who described in lurid detail dozens of legal sexual acts within one of the clubs.

Conspicuously absent from the Factual Report was any mention of the four police undercover investigations, which found no evidence of drugs, underage patrons or prostitution.

The Factual Report also lacked even a shred of evidence supporting the city's claim, as detailed in the language of the swingers' club ordinance, that "the operation of a live sex act club contributes to the spread of sexually transmitted diseases."

The city has brought forth no such proof since.
All Phoenix swingers' clubs have posted policies requiring male patrons to wear condoms, which are freely available inside the clubs.

"Obviously, no one's going to interrupt an act in progress and say, 'Excuse me, sir, but can I conduct a condom check?'" says Roe. "But for the most part, we're all safe."

AIDS activist Jeff Ofstedahl, Phoenix Mayor Skip Rimsza's representative on a council that allocates all federal funding for HIV and AIDS prevention, does not buy the claim that swingers' clubs are hot zones for sexually transmitted diseases.

"I will testify against the city on this issue," he says. Ofstedahl cites a 1991 Dade County (Florida) health department study of Miami's gay sex clubs. "That study found that [sex club] members have a higher propensity for engaging in safe sexual activities because of the peer social support to do so."

"I think these clubs are highly honorable entrepreneurial endeavors," he says.

So why ban them?
Hays says, "It's a way to balance our puritanical philosophies against the realities of everyday life in a decent sort of way. So our kids can grow up in a society where we foster the illusion of no open vices."

The five club owners who filed the federal lawsuit say they have generated a legal fund rich enough to pursue their case as far as the Ninth U.S. Circuit Court of Appeals in San Francisco, if they lose in District Court in Phoenix.

For now, the clubs remain open, though business is down.
"I would say that since the ordinance has been written, our business has fallen off probably 65 percent," Guys & Dolls co-owner Bob Mutschler told Hays in a deposition.

Mutschler and others say police officers cruised through Discretions on a weekend night shortly after the law went into effect, checking identifications and threatening arrest.

"You folks had the police go by Discretions twice as a form of harassment, which in turn emptied out several of the clubs that particular evening because people were afraid they were going to jail. That is how the ordinance has affected our business," Mutschler said.

After the ordinance passed, swingers' club owners boarded up the windows and installed doors in the entryways to public sex or "viewing rooms" in their respective clubs, including the "Mass Hysteria" theme room in Club Chameleon.

"Of course, last Saturday night, the doors were open and people were standing in the doorway and around the room watching," reports Roe, "but there's no longer any rooms that cannot be made purely private."

Roe admits that swingers' club sex is "something of a stretch in terms of what the Constitution is meant to protect."

"Still," he says, "we honestly believe that on some level, our ability to freely express ourselves as free Americans is being reduced, prohibited in some manner. And we believe that's profoundly unfair, because we're not looking to bother anyone or infringe on their way of life. We just want to be left alone."

Contact David Holthouse at his online address: dholthouse@newtimes.com

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