How Appealing's Howard Bashman's latest column explains that fears Lawrence v. Texas would result in the wholesale invalidation of morals legislation "have proven to be overblown" -- at least thus far. As evidence, Bashman cites the Ohio Supreme Court's Lowe decision I noted last week and a recent decision of the U.S. Court of Appeals for the Eleventh Circuit upholding the state of Alabama's statute restricting the sale of sex toys.
If two recently issued appellate court rulings are any indication, the post-Lawrence fears of those concerned that public morality would no longer remain a valid basis for legislating consensual sexual conduct have proven to be overblown. Instead, these rulings demonstrate that, even where consenting adults are involved, Lawrence has failed to usher in an "anything goes" era, free from governmental interference.
Other cases seem to confirm this (lack of a) post-Lawrence trend. For instance, as some commenters on my prior post noted, the U.S. Court of Appeals for the Seventh Circuit also upheld a state law prohibiting consensual incest between adults in the 2005 decision of Muth v. Frank. Thus, it seems, Lawrence is has having less impact than some of its proponents hoped and critics feared.
Related Posts (on one page):
- Bashman on the Limits of Lawrence
- Why Might It Make Sense To Bar Stepparent-Adult-Stepchild Incest?
- The Limits of Lawrence -- Consensual Adult Incest:
Agreed. Logical consistency is good.
It is my understanding that if there is a state interest on the one side and a fundamental Constitutional right on the other that the standard is "strict scrutiny". By that standard (indeed even by a much looser one) it is hard to see how the Haggermaker decision can be justified. (How does a near-total ban on sex toys advance the cause of public morality at all?)
And the district and appellate courts are clearly dancing between the raindrops here. No one is actually claiming that forbidden activity (selling sex toys) interferes with public morality. Some poor soul, somewhere in deepest darkest Alabama, believes that using a toy would be immoral. But the supposedly immoral act is protected, so the law attacks the facilitating sale. The goal of the law is patently and admittedly unconstitutional under Lawrence and except for reaching that goals, there is no rational basis for the law.
Personally, I find the gap between the promise and the performance of Lawrence as disappointing as anything since Lopez. I was hoping for everything Scalia warned us about...
So Alabama could ban walking into an abortion clinic or the purchase of abortion instruments? It's not illogical to state that the right to do something (have an abortion) does not entail a right to do anything that facilitates the thing you have a right to do (walk into an abortion clinic or buy abortion instruments).
Can Connecticut ban birth control? It's not illogical to state that the right to do something (take birth control) does not entail a right to do anything that facilitates the thing you have a right to do (buy birth control).
I think there is a case about that.
How would you craft such a law that would ban "gay bars" but not other drinking establishments?
I believe the usual approach would be to pass a law prohibiting all bars, but only to enforce it against bars frequented by groups you don't like.
I haven't read Lawrence in a long time, but I don't recall it saying that the activity in that situation involved a fundamental right.
And re morality, I believe the state's argument was pure morality. They didn't argue that any particular harm or social ill would result from allowing the sale of sex toys, they just considered them immoral so they banned their sale. Of course this probably has virtually no effect since they would be easily available online. The problem with the "moral" justification is there's no measure for it. It's equivalent to saying "we just think it should be that way" and if that was sufficient for a rational basis test, there would be no rational basis test.
The problem is that the logic of Lawrence is still likely to be used as a justification for other sweeping rulings that otherwise would have no justifying precedent at all.
That it hasn't happened yet doesn't mean it won't. But that just means Lawrence is an arrow in the activist jurist's quiver that has yet to be fitted to his bow.
After all, somebody could hypothetically disagree with the philosophical value judgment that even "public welfare" or some such notion is "good." And, the state implicitly invokes moral value judgments whenever it defines any sphere of "rights" in practically any context...
So, perhaps a principled, libertarian bright-line might be to just say that the state may never criminalize consensual adult activity of any kind if it doesn't directly impact any non-consenting persons -- but really that's just carving out a *subset* of "moral" issues that can't be regulated.
Instead of being a statement of principle, Lawrence looks more and more like a "special" decision reserved for a "special" subgroup of people. What's more (and perhaps more important) we have the situation where there is no way for reasonable people to predict what is legal and what is illegal. Because heartily defended principles today can be tossed overboard tomorrow.
Why does the State care if people use sex toys? What conceivable State interest is there in that? And banning the sale-- but not the use-- is an absurd dodge that wouldn't pass muster in any other arena. ("Why, yes sir! You have a right to bear arms, but nobody has the right to sell you them!" or "Right to free speech? You bet. But... it is illegal for anyone to listen to you! Ha, ha, ha!")
Why can't we just say the Legislature?
Then we can guess at how "representative" (or pandering) that body is.
We can also begin to reapprise whether Legislation is Law.
Anyone for Hayek?
At the time of Lawrence, advocacy of full equal marriage rights for gays would have been considered a far left position, as would advocacy of all the substantive civil rights for gays but under a different name than marriage.
Now, civil unions is a centrist position that even some on the right support, and there is growing support for gay marriage. And part of the reason is that Lawrence, by recognizing as a baseline that the state could not criminalize homosexuality, shifted the debate. Other than people who don't believe in it in principle, and a few true homophobes on the right, I don't think too many people would want to overturn Lawrence and reinstate sodomy laws.
Couple stand by forbidden love
BTW, the most ironic part of the BBC story is that two of their four children have serious medical conditions - just the thing people warn about as a consequence of incestuous relationships.
Nick
What, you mean, other than the President of The United States? He is on record as being in favor of them, and was against Lawrence. He keeps appointing justices that would overturn Roe, why not Lawrence?
You don't actually expect any GLBT people to trust him, or anyone who supports his policy on civil rights, do you?