Roanoke, Virginia City Code Sec. 21-144(a) provides that "It shall be unlawful for any person to administer, for hire or reward, to any person of the opposite sex, any massage, any alcohol rub or similar treatment, any fomentation, any bath or any electric or magnetic treatment." Another section excepts medical massages (assuming that this exception is clear enough and narrow enough to avoid swallowing the rule), and "barbers or beauticians who give massage to the scalp, face, neck or shoulders only." Constitutional, or a violation of the Equal Protection Clause prohibition on sex classifications?
Note that a man and a woman were recently convicted for violating this ordinance; their massage seemed sexual, but the ordinance isn't limited to sexual massages. Same-sex marriage naturally played a role in the legal analysis. Thanks to Ben Winograd for the pointer.
Doesn't the phrasing of that question assume that it would otherwise be constitutional - and hence that (at least at the local level) all sorts of bans on behavior are constitutional, and not for example unconstitutional on the basis of various protections of liberty found in the constitution (be it right to privacy or rights of liberty that even the local government cannot violate).
Could a local government decide to ban business exchanges between men and women of all kinds (as opposed to to just ones deemed "sexual")? Some religions (I believe Hasidism) find inter-sex business transactions immoral. A local government dominated by such a religion might want to impose this moral code.
Separation of church and state you say? But isn't it just morality, and local government can engage in encoding morality? No? Well then why can they ban prostitution on the basis of morality, and even extend it to inter-sex massages? Clearly those laws are also based in religion or are at least purely moral.
If the question is whether all religions agree on the moral code why isn't it just whether all the affected voters agree - and leave religion out of it? But, if all it takes is a majority to vote away our rights at the local level, this is disturbing. One state could decide to become Iran, so long as it isn't federal this might be okay...
In another a vaguely analogous context, I thought that even before Lawrence v. Texas, the courts invalidated the Virginia statute banning people from cohabitating with a member of the opposite sex.
I suppose a baroque rule could be written that alimony ends when the recipient cohabitates with a member of the payor's gender, but as I said marriages do occasionally break up because the non-earner discovers that they married a person of the wrong gender.
-dk
In Ohio, a lower court relied on the fact that an ex-wife was cohabiting with a woman, rather than a man, to refuse to terminate alimony.
Fortunately, many states, such as Georgia, now have gender-neutral statutory language that cuts off alimony when the recipient spouse cohabits in a sexual relationship with someone of either gender
This is very important, because wives who decide that they are lesbians after years of marriage to a man, and then abandon the man, frequently add insult to injury by demanding alimony after they move in and cohabit with their lesbian paramour.
Florida alone has two published appellate precedents in which ex-wives demanded and obtained alimony after abandoning their husbands for lesbian relationships.
Fortunately, this is impossible in many other states.
It demonstrates the importance of cutting off alimony not only upon remarriage, but also upon cohabitation, and upon cohabitation with anyone of either gender or sexual orientation, regardless of whether they have entered into an opposite-sex or gay marriage.
I'm not saying I find either argument persuasive; I'm wondering if there's a rational distinction to be drawn.
And what is a magnetic treatment, and why is the City so worried about it that it must be stopped?
Talk about invasion of privacy! Good thing I'm gay, and I like my massages from men -- apparently that's okay.
Pity the poor hetero man, though. A good massage is one of life's pleasures.
Randy I am guessing the intent is that they are trying to ban massages parlors for fear that the massage parlor would just be a front for prositution.
There's no constitutional right to massage and the "liberty of contract" doctrine is long gone. Massage is not a P or I of a US citizen.
There's no equal protection claim as it doesn't discriminate by gender, or race or any other classification.
I think this law would be upheld 9-0 if it ever was challenged in the SCOTUS.
I get that this is theoretically neat and clean. However, I suspect it makes life more miserable for alimony payers.
How, as a practical matter, do you prove that a cohabitation is sexual? In the olden days, "all" you had to show that the person had set up residence -- the private investigator might photograph the car belonging to the cohabitor on three successive 3AMs, or they might have a lease together, or he might have changed his drivers' license, or whatever -- indecae that an outsider has some hope of engaging. Now you have to show sexuality? In the ordinary case where the ex found a new main squeeze of the opposite gender, the payor has a new, rather high, hurdle to jump. How does he go about showing that?
-dk
More background: in court, a lawyer representing one of the defendants argued the law violated the Equal Protection Clause by discriminating against heterosexuals. Citing the upcoming marriage amendment on the Virginia ballot, he said, "They're saying that homosexuals can't marry, but they can go out and do things that heterosexuals can't do." Of course, the law doesn't discriminate against heterosexuals at all. Most women actually prefer to receive professional massages from other women. And though it may have made George Costanza uncomfortable, men commonly receive professional massages from other men.
Indeed, under the ordinance residents of Roanoke can still receive professional massages from someone of the opposite gender so long as the masseur/masseuse completed at least 500 in-class hours of training “in a curriculum approved by or substantially similar to a curriculum approved by the American Massage Therapy Association, Inc.”
Thus, the true victims of the ordinance would appear not to be heterosexuals broadly, but heterosexuals who 1) seek a massage from someone of the opposite gender, 2) cannot find someone of the opposite gender willing to give them a massage for free, and 3) cannot afford to hire a masseur/masseuse who has had 500+ hours of training. Oh, and also aspiring masseurs/masseuses in Roanoke who have not completed the requisite training.
Or simply becaue they are bisexual.
A big part of the problem in cutting off alimony to spouses who cohabitate is not the requirement of proving sexual relations per se so much as the fact that clear and convincing evidence is often required that the cohabitants are in fact living together in a sexual relationship.
If that were lowered to simple preponderence of the evidence, it would be more easily proven. (Courts do not require smoking-gun evidence that sex is actually happening, at least among opposite-sex couples). Where the motion to cut-off alimony is based on a cohabitation provision of a separation agreement, rather than of the alimony statute itself, the Virginia courts already apply a simple preponderence of the evidence standard (in statutory cases, they apply clear and convincing evidence, I think).
Maybe the test for cutting off alimony should perhaps be disjunctive: either (a) cohabitation with a member of the opposite sex; or (b) cohabitation with someone of either sex where it is shown (by a preponderence of the evidence, either circumstantial or direct) that the relationship is romantic or sexual in nature; or (c) if the alimony payor and recipient are of the same sex, cohabitation with someone of the same sex, if it is not shown, by a simple preponderence of the evidence, that the relationship is not romantic or sexual in nature.
To the extent that any gender-based or sexual-orientation-based classification is involved in the above test, I think it would be justified by the substantial state interest in limiting alimony to recipients who truly have less resources on which to draw, and its presumptions would be substantially-related to that interest, in light of the evidentiary difficulties involved in proving the private details of any relationship.
Or simply becaue they are bisexual.
Or simply because they always were lesbians but couldn't live a lie anymore.
So as gay man, I can still get my massage AND get the full release if I get a massage from an unliscenced masseur. Whoohoo! Who said Virginia was hostile to gays!
Could a local government decide to ban business exchanges between men and women of all kinds (as opposed to to just ones deemed "sexual")?
Assuming the hypothetical ordinance banning all economic transactions between men and women were challenged under the U.S. Constitution (Due Process or Equal Protection Clauses), the reviewing court would apply rational basis review because: (a) at worst, the ordinance discriminates on the basis of sexual orientation not gender (therefore no suspect class); and (b) it is relates to purely economic conduct (therefore no "fundamental" right).
The rational basis test asks whether the challenged restriction is rationally related to any conceivable public purpose.
Here, the goverment could argue that the purpose of prohibiting men and women from entering into any economic transactions with each other is to eliminate prostitution (or halt the sale of illegal drugs, or prevent fraud, etc., ETC.), which it certainly would. And since questions of overbreadth, balancing, and proportionality are totally irrelevant in rational basis cases, the outrageousness of the law is -- or should be -- of no concern whatsoever to the reviewing court.
Fortunately, we can take comfort in the fact that the Supreme Court has established a clear (if inconsistent) track record of blatantly misapplying the rational basis test when it leads to results that five justices find sufficiently troubling (see, e.g., Romer, Cleburne, Moreno, etc.). It would be interesting to learn whether five Justices on the current court would find a "no economic transactions between men and women" regulation sufficiently obnoxious to overcome their horror of resurrecting Lochner by displaying anything but mindless, knee-jerk obsequiousness towards economic regulations.
For those who find the hypothetical outlandish, consider that in Louisiana it is illegal to sell flower "arrangements" (i.e., two or more flowers arranged to look nice) without a very-difficult-to-obtain license. That law was upheld by a federal district judge applying rational basis review.
After, not only was the Civil Rights Act promulgated by religious coalition led by Rev. Martin Luther King who taught that the conduct involved was sinful, but the Supreme Court in Heart of Atlanta Motel explicitly stated that it was a moral law constititional to the same extent as other laws such as prostitution.
If morality laws that discriminate on sexual preference or orientation in the conduct of business transactions are unconstitutional, the Civil Rights Act must be struck down.
If this statute is unconstitutional on Equal Protection grounds, then the Civil Rights Act of 1964, which prohibits a more general class of business transactions based on whether they are carried out on a same-sex or a non-same-sex basis, would appear to be a fortiorari even more unconstitutional. The Civil Rights Act covers a class of transactions so broad that there is not even a purported attempt to provide individual justification for including them.
After all, not only was the Civil Rights Act promulgated by religious coalition led by Rev. Martin Luther King who taught that the conduct involved was sinful, but the Supreme Court in Heart of Atlanta Motel explicitly stated that it was a moral law constititional to the same extent as other morality laws. It explicitly mentioned prostitution as a comparison.
If morality laws that discriminate on sexual preference or orientation in the conduct of business transactions are unconstitutional, the Civil Rights Act must be struck down.
Then they break up. It doesn't seem to matter whose fault it is, and I'm reasonably cool with that because anybody can drive anybody to file for divorce and I don't want to see divorces turn into endurance contests where the one who can be the bigger pain to the other wins.
So she is no longer expected to keep her side of the bargain; she doesn't cook and clean and do the laundry any more, does she? She doesn't even pay to have these services done, out of alimony if necessary. Meanwhile, he supports her, for half the length of the marriage or more in some jurisdictions.
-dk
-dk
In a 1981 Virginia case (Bristow v. Bristow), a wife who was married for a few weeks before leaving her husband successfully challenged a judge's decision to cut off alimony after several years in the Virginia Supreme Court. She got indefinite alimony based on the briefest of marriages.
So he's understating his case when he says that alimony lasts half the length of the marriage, although some judges use that rule of thumb. In some states, alimony can last for life based on the briefest of marriages. (In California, there is a rebuttable rule-of-thumb that half the length of the marriage is a proper term for alimony; but the rule-of-thumb is not binding on judges).
Randy R. points out that theoretically, alimony makes sense when the wife has foregone developing her earning capacity to take care of the house, to prevent her from a life of poverty.
But although that is a factor judges sometimes consider in whether to grant alimony, there's no requirement that a wife have lost any earning ability in order to obtain alimony, and alimony isn't usually limited to the amount of earning capacity thereby lost.
Moreover, alimony isn't limited to the amount needed to keep a spouse out of poverty; alimony can run in the tens of thousands of dollars a month, if the husband is rich enough.
Sometimes judges will expect a former homemaker to work to reduce the amount of alimony her ex-husband has to pay her to maintain her at the living standard to which she was accustomed, and sometimes they do not. Logically, they should, since time the ex-wife no longer spends taking care of the husband is time she can spend working, at least part time.
One has to keep in mind as well that the ex-wife was not usually dumped for a younger model, as in the First Wives Club. Typically, it's the wife who initiates a divorce, generally based on falling out of love rather than spousal abuse or adultery (i.e., a no-fault divorce) (about 2/3 of divorces in this country are initiated by the wife, not the husband), so it's not as if the costs of the divorce should be imposed solely on the husband, rather than shared between spouses. When men remarry, it is typically to a woman who is within 3 years of their own age, not a dramatically "younger model."
Moreover, a majority of states' highest courts bar consideration of fault in alimony and property distribution, anyway.
Or even worse, it could be a front for a dance hall.