By Mickey from Casual Swinger for ASN Lifestyle Magazine
Freedom: (n) the power or right to act, speak, or think as one wants without hindrance or restraint.
Seven letters to sum up a call to service, a call to war, and the fundamental characteristic that defines American life. (At least, if you ask an American…) As citizens, while we enjoy constitutionally protected freedoms of speech, expression, and religion… we often don’t see those protections extended to our sexuality. Sexual freedom is a cause the LGBTQ community has been championing for decades with an incredibly broad definition. Sexual freedoms include the right to associate with, love, marry, or simply have sex with whomever you choose. It’s not that simple though, as these freedoms find themselves under near-constant assault by the Christian Right’s morally-led efforts to limit the exercising of these seemingly basic freedoms to shadow and secret.
The Champagne Club Case
This assault was in full display on August 13, 2019 when the city of Fort Wayne, Indiana took up the consideration of two ordinances, G-19-07-34 and G-19-07-35, designed to limit what they termed as “Live Sex Act Businesses” and “Sexually Oriented Businesses,” which is a somewhat derogatory (and arguably erroneous) way of categorizing strip clubs and the city’s lone lifestyle establishment, The Champagne Club (TCC). TCC, located at 2710 Nuttman Avenue, has been in business since 2011. It is an on-premise, members-only lifestyle organization boasting a membership of 15,281 people and an overwhelmingly positive reputation among its membership for quality, safety, and class. Despite this reputation, however, activists in opposition of the club and (ostensibly) the lifestyle, in general, brought forward legislation with the directly intended effect of putting TCC out of business. “I personally visited the club Saturday, August 10, and the owners showed me around before it opened. It is a clean, beautifully appointed club, it's as nice as any nightclub I've ever been to in larger cities. LED lights, beautiful dance floor, all details of security and club operation were handled very well,” said John Crawford, Fort Wayne City Council President.
Founded by Eric & Melissa Adams, The Champagne Club offers an upscale lifestyle experience featuring dinner, dancing, and playrooms among like-minded couples who also meet the stringent rules of the club, including a dress code and background investigations. In the genuine spirit of the discretion and subtlety that normally accompanies the lifestyle, TCC is virtually indiscernible from the outside. “Our goal when we opened Champagne was to create something different in the Midwest. We intended from day one to create an atmosphere that focused on socialization and building relationships. We felt strongly (that) many of our members would become lifelong friends, as it turned out…we were wrong. Our members have become family,” said Adams. That subtle presentation, dedication to customer experience, and attention to their membership has allowed them to operate as a successful business in Fort Wayne for nearly 8 years. Despite their success, however, a recent lawsuit in the city regarding a local strip club (Rabbits) caused the city to launch a review of existing code dealing with sexually oriented businesses and their designated locations.
A Wolf in Sheep’s Clothing?
“Beware of false prophets, which come to you in sheep's clothing, but inwardly they are ravening wolves.” – Matthew 7:15
The review, led by Christian-Right activist attorney Scott Bergthold and city attorney Carol Helton, aimed to present evidence as to why, specifically, that organizations such as TCC shouldn’t be allowed to exist. Bergthold, a graduate of both Pensacola Christian College and Pat Robertson’s Regent University, has been involved with numerous Christian-Right organizations including the American Center for Law & Justice, and the Community Defense Counsel. Both of these organizations are faith-based groups designed to ensure that conservative, Christian values are at the core of politics and the laws governing our land. With a laser-like focus on limiting sexual freedom, his website declares “The Law Office of Scott D. Bergthold, P.L.L.C. has a national practice focused on the drafting and defense of municipal adult business regulations. A recognized leader in assisting cities and counties with sexually oriented business matters, the firm's goal is to leverage its expertise on behalf of municipal clients to provide constitutionally sound ordinances and effective resolution of industry challenges.”
Historically, most of Bergthold’s targets have been strip clubs, which his firm has pursued around the country with a varying degree of results due to dance being a protected form of expression under the 1st Amendment of the United States Constitution. The lead witness against Bergthold in many of these cases is none other than 82-year-old Judith Lynne Hanna, author of “Naked Truth – Strip Clubs, Democracy, and a Christian Right.” Armed with a PhD in Anthropology and scores of legal cases under her belt, she has a good bit to say about Bergthold and his theocratically inspired legal pursuits in her book. She refers to him as a “double-dipping litigator and appellate counsel, defending zoning, regulations, or licensing restrictions in state or federal court.” “Double-dipping” is a short way of describing an attorney who provides consulting services to potential customers for a fee, prior to charging them for defending their resulting actions in a courtroom. It’s a convenient (and arguably brilliant) business strategy but could certainly leave bystanders dubious of the authenticity of one such attorney’s moral motivations. One particularly entertaining quote from Dr. Hannah’s book came from Knoxville City Council member Joe Bailey, which read “To me, it seems like he’s just a franchisee and goes around from city to city and sells these laws, and municipalities pass them…and then we hire him to represent the city at $200 an hour.”
While most religious organizations are known for charity and kindness in addition to their moral righteousness, past years have illustrated that association with organized religion doesn’t automatically mean the potential secondary effects of those institutions are necessarily positive. The Catholic Church alone has spent over TWO BILLION dollars settling cases of sexual impropriety against its priests in Massachusetts, Texas, and California. Three primary issuers of insurance for Protestant churches reported in 2007 (the last substantial report on sex abuse claims in Protestant churches) that they get approximately 260 cases a year of sex abuse in the churches they represent, excluding groups covered by other insurers, victims older than 18, people whose cases weren’t disclosed to insurance companies and, anyone who never came forward. Based on this reasoning alone, it seems to suggest that assuming one is morally upright (or corrupt) by simple association could be grossly misleading.
The Proposed Legislation
Ordinance G-19-07-34 read as follows:
That Title XI BUSINESS REGULATIONS be amended to add a new CHAPTER 122, titled LIVE SEX ACT BUSINESSES, to read as follows:
Live Sex Act Businesses
- 122.01 Definitions
For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
Consideration: The payment of money or the exchange of any item of value for:
(1) The right to enter the business premises or any portion thereof, or
(2) The right to remain on the business premises or any portion thereof; or
(3) The right to purchase any item permitting the right to enter, or remain on, the business premises or any portion thereof, or
(4) The right to a membership permitting the right to enter, or remain on, the business premises or any portion thereof.
Live Sex Act: Any act whereby one or more persons engage in live conduct which contains oral, sexual contact or sexual intercourse.
Live Sex Act Business: Any business in which one or more persons may view, or may participate in a live sex act for a consideration.
Operate & Maintain: To organize, design, perpetuate, or control. Operate and maintain includes providing financial support by paying utilities, rent, maintenance costs or advertising costs, supervising activities or work schedules, and directing or furthering the aims of the enterprise.
Oral Sexual Contact: Oral contact with the penis, vulva, or anus.
Sexual Intercourse: Penetration into the penis, vulva, or anus by any part of the body or by any object or manual masturbatory contact with the penis or vulva.
$ 122.02 Prohibition
It shall be unlawful for any person to operate and maintain a live sex act business.
Operation of a live sex act business is a public nuisance per se.
$ 122.04 Enforcement
The City's legal counsel is hereby authorized to institute civil proceedings necessary for the enforcement of this chapter to enjoin, prosecute, restrain, correct or abate violations thereof and to seek judgment for fines under $ 122.99 below. The City shall be entitled to recover its attorney fees related to any such enforcement action brought under this chapter. Such enforcement proceedings shall be brought in the name of the City, provided, however, that nothing in this chapter and no action taken hereunder, shall be held to exclude such criminal or administrative proceedings as may be authorized by any other ordinance, or any of the laws in force in the City or to exempt anyone violating this code or any part of the said laws from any penalty which may be incurred.
$ 122.99 Penalty
A first violation of this chapter shall be punishable by a fine in the amount of two thousand five hundred dollars ($2,500.00). A second or subsequent violation of this chapter shall be punishable by a fine in the amount of seven thousand five hundred dollars ($7,500.00). Each day that the violation continues is a separate violation.
This ordinance was inspired by, and drawn heavily from, a similar action entitled the “Live Sex Act Business Code,” brought forward back in 1998 in Phoenix, AZ. This legislation accomplished three primary goals:
1. Ban “swinger” clubs
2. Label any business with live sexual contact a “nuisance”
3. Once labeled a “nuisance,” use existing municipal code to address nuisance businesses, usually meaning fines and/or closure.
The idea that a legitimate, well-run business could be arbitrarily declared a nuisance is potentially both troubling and significant. Nuisances are dealt with differently in each city’s code, but according to http://www.findlaw.com, public nuisances can be described as; “A wide variety of minor offenses that ostensibly threaten the health, safety, welfare, or even morals of a community. Nuisances can be both public and private in certain circumstances where the public nuisance substantially interferes with the use of an individual's adjoining land, but generally speaking, a public nuisance interferes with the public as a class, not merely one person or a group of citizens.” Characteristically speaking, once a business has been declared a nuisance, fines and possible closure are among municipalities available remedies.
Their Shining Example, Phoenix 1998
When discussed in private circles, armchair lawyers often cite multiple reasons that lifestyle clubs shouldn’t have to worry about these challenges from municipalities. Some of these reasons include; The 1st Amendment, the 4th Amendment, and the 14th Amendment. Virtually all of these were brought to bear during the ensuing court battle to overturn the Phoenix ordinance.
Recreational Developments vs The City of Phoenix, attacked the legislation on a number of constitutional grounds. These grounds included the following arguments:
1. Freedom of Speech, the 1st Amendment
a. Sexual activity is a method of expression, qualifying as speech
2. The right to Intimate Association, the 14th Amendment
a. Engaging in highly personal relationships is protected under the due process clause of the 14th Amendment
3. Privacy, the 4th amendment
a. Acts committed onsite are protected under the expectation of privacy
b. The club is a “private” club, and not a commercial, public entity
a. A law is overbroad if it targets not just the activities within the allowable area of control, but sweeps within its reach other activities that are protected, ie free speech or associative rights.
Ultimately, the case reached the 9th Circuit Court of Appeals, where it was ruled that the ordinance was, in fact, constitutionally written on the following grounds:
1. Sexual activity, absent an expressive element is NOT a form of protected speech
2. Interactions in public are not highly personal, nor private, and not subject to Intimate Association protections.
3. “Private” membership is not private, as it doesn’t meet the standards for privacy previously set by the Supreme Court, which are:
a. Membership will be selective, meaning not-just-anyone can join
b. Membership is limited in size
c. A pre-established criterion for judging a prospective member’s worthiness
d. Frequency of new members added
e. Voting by membership on new members
4. Bolstered by Bowers vs Hardwick (1986), the idea that behavior behind closed doors is protected by virtue of privacy was dismissed. Also supporting this supposition was a Supreme Court ruling in Paris Adult Theater vs Slayton in which the court ruled that sexual activity taking place in a commercial context does NOT enjoy a right to privacy.
5. The city amended the code to allow for exceptions in response to the overbreadth argument, satisfying the court such that it was upheld as not overly broad.
The highest level to which any case involving the lifestyle, or “swinging” in particular, has reached is the U.S. Court of Appeals for the Federal Circuit (9th and 6th districts), with the United States Supreme Court never having elected to hear a case involving the lifestyle. (They have, however, heard numerous cases involving erotic dance or strip clubs.) The City of Phoenix prevailed, and as a result, the lifestyle clubs in Phoenix were forced to close. Emboldened by their success, other cities around the country have clung to the arguments presented in Phoenix as a guide to using the law to force their morality upon the citizens of their cities, most recently in Fort Wayne. Repeatedly throughout the cities presentation we were reminded of this, as Bergthold used phrases such as “unprotected,” and “not Constitutionally protected.”
What’s worse is, he’s correct. Consensual non-monogamy is not a protected right.
A particularly troublesome (and oft-used) legal doctrine known as “Adverse Secondary Effects,” provides fuel to the opponents of sexually oriented businesses, after the court held (City of Erie vs Pap’s AM, 2000) that governments could regulate adult entertainment so long as their aim is to prevent:
2. Depreciation of property values
3. The spread of disease
Much of the data collected in the 1998 Phoenix case can be considered inaccurate, or questionable at best. The court established in 2002 (Los Angeles vs Alameda Books) that evidence deemed shoddy or not derived from a specific area does not justify regulation. It also placed the burden of proof on the government for collecting “substantial” data to justify any Adverse Secondary Effect claims. Despite the existing case law, and a lack of supporting evidence, Adverse Secondary Effects are commonly used as justification for code regulating the operation of sexually oriented businesses. These suppositions are dangerous and frequently patently untrue, yet they persist as recently as August 13, 2019 when Bergthold presented them to the city council of Fort Wayne.
The Battle for Fort Wayne
During the allotted time for arguments before the Fort Wayne City Council, Bergthold referenced a City of Phoenix police officer’s alleged undercover account of a visit to a local club in which he claims to have viewed multiple sex acts with no condom. An alleged event, in 1998, in Phoenix, as a mechanism to justify designating TCC as a danger to the public health of Fort Wayne. “People are having sex there, and the data that we have on these types of establishments is (that) they do that without condoms, unprotected, on a regular basis…” Bergthold postulated. Later, during her rebuttal, TCC attorney Angelica Fuelling reminded the council that condoms are provided at no cost in multiple locations throughout the club, and that they are used with regularity. Bergthold, in an attempt to discourage comparisons to standard hotels in the area, later seized that admission to remind the council that hotels don’t provide condoms in bowls. It could stand to reason, however, that any potential secondary effect of a rise in STDs due to sex in hotels around the country would be mitigated by such a policy, should hotels adopt it.
To his credit, Crawford questioned the dubious nature of the claims made in the studies utilized by the City of Phoenix, and seemingly dismissed them as applicable in the Adverse Secondary Effect justification presented by Bergthold and Helton regarding the ordinance. “In this club, have there been any criminal charges filed or criminal activity documented about THIS club, not about clubs around the country or data you’ve acquired around the country?” asked Crawford. The response from city attorney Carol Helton was, “None.” He later posed the question, “Do you have any SPECIFIC data on this club documenting an increase in STDs in that area, in the Fort Wayne area, anything specific relating to this club,” to which the city’s counsel also had nothing substantial to offer.
As is the norm in these cases around the country, they are very specific in which cases they quote to provide confidence in the legal precedents supporting their proposed agenda. For example, during the presentation against G-19-07-35, Bergthold set forth Renton vs Playtime Theaters, Inc (1986) as proof that cities are permitted by the courts to use data from other cities when substantiating Adverse Secondary Effects. What he neglected to mention, however, is that Renton was granted this exclusion based on the fact that they HAD no strip clubs from which this data could be ascertained. Additionally, in the 2002 case City of Los Angeles vs Alameda Books (which he referenced during the G-19-07-34 presentation) it was established that the government must prove that it relied on substantial data in substantiating adverse secondary effects. Per City of Erie vs PAPs AM (2000), secondary effects studies supported by data from outside a locality can be challenged as well.
Crawford also questioned the Fort Wayne’s police captain, Kevin Hunter, regarding the crime statistics for TCC to combat the poor information presented from the Phoenix case in relation to TCC. Over the course of nearly eight years there have been only NINETEEN calls regarding TCC, only two of which resulted in police reports, one of which was a misplaced purse and the other an off-hours theft from a vehicle parked at their location. Zero sexual assaults. Zero instances of violence. Adverse Secondary Effects, as a basis for legislation, was soundly defeated when the club itself was the case study for factual analysis.
There are studies, however, that suggest that individuals in non-monogamous relationships belong to significantly higher risk groups for STIs and STDs than those in monogamous relationships. On a recent episode of the “Casual Swinger Podcast,” Physician Dr. Rick backed up those studies by suggesting that active lifestylers face the same risks as individuals who frequent prostitutes. This suggestion and supporting data would seem to originate from researchers at the South Limburg Public Health Service and Maastricht University during a 2010 study in the Netherlands. The misleading headlines and promoted data ignored the fact that the higher STI rates came from members of the lifestyle that are over 45, and escalating as they age. To see the potential fallacies in this declaration for all swingers, look no further than 2009’s NY Post article, “Romance & STD’s: Inside Florida’s wild retirees getaway.” The reputation of Florida’s most popular retirement community may very well be earned, although residents of the area frequently dispute these claims as well.
Common sense and residents’ arguments aside, this data contributes to the development of Adverse Secondary Effect arguments against sexually oriented businesses. The true basis of many of the arguments against lifestyle clubs and other sexually oriented businesses, however, appears to be morality.
A Question of Morality
During his closing statements, Crawford remarked. “It is often said that you cannot legislate morality. Why? Because first, you have to decide WHOSE morality. Many people's morality is based on religious teachings or the teachings of their church. Some religions say one can't eat pork, some say women should be subservient to men, some say different sexual orientations and gay marriage are not only immoral, but punishable in severe ways. So, to legislate morality based on religious beliefs, we have to decide WHICH religion. Fort Wayne is a city of many churches, but many DIFFERENT churches with many different beliefs. We respect all these churches' right to worship in their own way and believe what they want. So, we should respect these different views on what is moral. America was founded on freedom of religion, one of our greatest strengths. That also includes freedom FROM religion, and the right NOT to believe or subscribe to other beliefs or morals.”
Morally speaking, the courts in America are nothing if not divided. In 2018 a Federal judge ruled (Jacobi vs Windsor Locks) that oral sex, masturbation, and exposing/fondling genitalia is NOT a form of free speech and not protected by the 1st Amendment. Yet, in 2018 the 9th Circuit Court of Appeals heard Lawrence vs Texas, which stated that states cannot stigmatize private sexual conduct simply because the majority views it as “immoral.” In a move supportive of alternative lifestyles, the state of Oregon amended its state constitution to prevent special licensing and zoning restrictions against sexually oriented businesses. Conversely, Texas legislators took the (arguably) passive-aggressive step of adding a “fee” of $5 per entry for businesses deemed sexually oriented. “If your swing club is put into that (sexually-oriented) category, you have to pay a per-head tax not just moving forward, but back…so that can be a giant fine in the form of this tax that clubs can’t pay,” said Susan Wright, Chairperson of the National Coalition for Sexual Freedom. Despite supporting case law and precedent elsewhere, during the debate, multiple members of the Fort Wayne City Council and advocates for the ordinance frequently referenced “morals,” “morality,” and the “values” of their community.
“Our jobs as legislators are to primarily look at the health and safety of our community. I think what we saw here was a tenuous case made here in terms of health and safety…there is one on morality, and that’s where it becomes difficult,” said Councilman Michael Barranda. “I can tell you what my morality is, and I find this particular practice and club not within my taste, ideology, and political/religious beliefs,” he continued. However, he went on to quote United States Vice President Mike Pence when he said, “that’s what freedom sounds like,” when confronted by protesters outside a performance of “Hamilton” in New York City. In an internal battle between his own morality and the opportunity to legislate it, he declined, saying “It’s just simply morality, and I find that very difficult to start going down that slippery slope of where we’re going to draw the line and decide what our morals should or should not be.”
In his closing remarks, Councilman Barranda suggested that Mayor Tom Henry might very well be deflecting attention from larger issues at hand, saying “I have to applaud the mayor for bringing this ordinance to the table. If you want to bring something provocative enough that will distract away from other issues in our community…actual issues…of crime and things that our community is addressing, this is a great way to do it. Look at the news cameras in this room just looking for that soundbite. And you know what? I applaud him because there is no better way to cover up those issues in our city than talking about strippers and swingers for the next few months.”
A Matter of Freedom
The tussle over TCC’s right to exist in Fort Wayne garnered the attention of the National Coalition for Sexual Freedom, (NCSF) formed in 1997 by a small group under the auspices of the “New York SM Activists.” Their goal is to fight for sexual freedom and privacy rights for all adults who engage in safe, sane and consensual behavior. “We believe that it is a human right to be able to love who, and how you wish so long as it’s consenting adults and you’re not harming someone. That should be the standard, rather than applying religious moral standards from a certain sect onto everyone,” said Wright. The NCSF boasts 96 Coalition Partners, who are groups and businesses who serve BDSM, swing, and polyamory practitioners and also support NCSF by holding an annual fundraiser. NCSF also has over 60 Supporting Members, which are groups and businesses supporting sexual freedoms.
“Last year we helped almost 300 groups, businesses, and individuals through our incident reporting and response. That is up quite significantly from 2016 where we had a low of about 100 (incidents). What that really tells us is that discrimination is actually rising in the past few years,” said Wright. In spite of giant strides being made by the LGBT community in past years, more than one THIRD of LGBT employees surveyed by Inc. Magazine felt the need to lie about their status while at work. 31% of those surveyed feared lost personal connections, and 23% feared losing opportunities for advancement. As a generally non-recognized alternative lifestyle, individuals identifying as consensually non-monogamous face even greater potential for backlash in the workplace. This further serves to illustrate NCSF’s value to an organization like TCC when under scrutiny from municipalities, as these fears drive many in the lifestyle to remain in the shadows, harming their business in the process.
The NCSF weighed in on the situation at TCC with a letter to the city council dated July 30, 2019. Wright wrote, “There have been no issues with the Champagne Club, which means there is no reason for the City Council to oppose this club on the grounds of public safety. If you object because of moral reasons, then you personally shouldn’t join this club — however, City Councilmembers aren’t elected to impose your own morality on others. That is for each adult to determine for themselves.” The NCSF also helped mobilize interested parties near and far with members and supporters emailing the councilmen, and dozens of members showing up in person to show support for their favorite club. Following the failure of the passage, Wright added, “It is very gratifying to see the Fort Wayne City Council vote down this legislation. It’s a victory for freedom, the right to assemble, and for keeping government out of our personal lives. Who wants their city council telling them how to love someone?”
The End, For Now
There were many impassioned presentations from citizens, councilmen, and representation alike. Before voting, Crawford made poignant remarks that included “To me there's a basic fairness issue to this, the owners, and their property rights. They've been operating eight years with no problems, invested hundreds of thousands of dollars in this club, and (are) getting caught up in the web of these other ordinances...not due to their operation. They are collateral damage, an afterthought stemming from the Rabbits lawsuit and the push to tighten our ordinances on strip clubs where we DO have problems. This club is associated with strip clubs in people's minds, but where I'm from we're taught association is NOT causation. This club does NOT cause the problems we have with strip clubs.”
That said, Councilman Paul Ensley was vocal in his moral disdain for the club during his remarks leading up to his non-vote. “I really think my only vote here is to abstain. I cannot in good conscience vote no on this and call something that I think is immoral morally good, or morally neutral. I also cannot exercise the power of the government to stop people that aren't hurting other people...” He’d made his preferences clear earlier in the evening when he questioned why TCC couldn’t be shut down using the zoning code instead when he asked, “If the issue is that they're operating in a place it's not properly zoned for anyway, why don't we just shut them down under the zoning code instead of coming in and making the big ordeal that we have tonight?”
By a vote of 3-3 with Ensley’s abstention, ordinance G-19-07-34 was defeated in the City Council of Fort Wayne, Indiana. The failure of the passage was met with cheers, hugs, and handshakes from the standing-room-only crowd attending in support of TCC, as well as jeers and frustration from those opposed. The council promptly turned its attention to the matter of strip clubs, which unfortunately passed the council easily. On a happier note, however, Crawford’s support was celebrated on August 24 when he stopped by TCC to check in on the jubilant business and its patrons. He was met with scores of well-wishers and grateful members, each waiting for their turn to thank him personally. “He was introduced to a standing ovation while a line formed by all 380 members in attendance to shake his hand. It was a moment that will go down in history for our lifestyle,” said Adams.
Bolstered by the victory in Fort Wayne, the opportunity exists to move forward as a free and open bastion for sexual freedoms in the Midwest. It’s merely an opportunity, though, as clearly yet another battle looms for TCC in the zoning commission of Fort Wayne. When asked about the prospect of an encounter with the zoning commission, Adams replied optimistically, “Although the City of Fort Wayne still intends to make amendments to the zoning code affecting sexually oriented businesses, we feel secure this will have little effect on Champagne. Our uphill battle was convincing seven republican and two democratic men not to ban live sex in the ‘City of Churches.’ We accomplished this by HUNDREDS of emails flooding the Fort Wayne City Council from all over the world, education about our lifestyle, safe sex practices and the economic benefits to our community.”
With brave, freedom supporting legislators, a supportive community, dedicated volunteers, and hard-working ownership, it’s hard not to be encouraged for the future of the Champagne Club and its membership. Actually, it’s hard not to be encouraged for us all.
Parties interested in learning more about the NCSF or becoming a supporter can do so at https://www.ncsfreedom.org.
This article originally appeared in the October 2019 issue of ASN Lifestyle Magazine.