Gosh, you guys have been busy. I haven’t felt this popular since my junior prom. ;).
Dewey: I’m not interested in the legal merits of this case–although I will be if a second appeal is won. As I’ve said at least once, the legal merits of the appeal aren’t of direct relevance to my argument which, for the sake of clarity, I’ll summarize one last time.
** 1. Due to his prior activism on behalf of the religious right agenda, there is cause to believe that Pryor’s zealous work to help keep vibrators out of the, um, hands of Alabamans has to do with that agenda and not only or purely with professional duties and/or with the legal merits of arguing the constitutionality of a such a ban.
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President George Bush is beholden to to the religious right, which is an important constituency for him and for the Republicans more generally. By way of courting that constituency he often nominates candidates with such an agenda to the bench.
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Bill Pryor is a an example of such a nominee, the best evidence for which is his voluntary activism on behalf of Christian prayer in public schools and the courtroom.
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As per #1, Pryor’s active defense of Alabama’s vibrator ban seems to provide additional evidence of his religious-right agenda, although that additional evidence is subject to debate. Those who disagree will argue that professional duties and legal merits may be sufficient to motivate the whole of his activism on behalf of this law. Those who agree will argue that 1) the existing pattern of religious-right advocacy is itself suggestive. They may also argue 2) that the murky circumstances under which this particular statute seems to have been passed casts doubt on whether it reflects the will of the people and, therefore, might mute a given AG’s sense of ethical obligation to defend it zealousy and at taxpayer expense; and 3) that the extent to which Pryor’s arguments themselves suggest a different line of reasoning than that which motivated the original legislation also may indicate his own partisan commitment to a sexually repressive religious ethic.
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President Bush had many potential choices for this nomination. That he once again chose a nominee with a religious-right agenda is scary to many. That would have been true enough, in Pryor’s case, had the evidence of said agenda been limited to church/state issues. Although the vibrator defense doesn’t provide conclusive additional evidence of Pryor’s religious-right attachments, it does show that Bush himself isn’t deterred by this type of connection–in spite of the fact that many if not most Americans are likely to find Alabama’s law to be silly, archaic, Puritanical or what have you and, on those grounds alone, perceive this as bad publicity for Pryor, even if they understand that his motivations may have been strictly professional. Bush, in other words, has the option not to touch Mr. Pryor with a ten-foot-pole (vibrating or not). Instead his choice of Pryor reflects yet another cozying up to the religious right, and yet another alarm for Americans who oppose their theocratic agenda.**
I will add, though, that I will read your post in full when I have the chance–and I appreciate the time it must have taken you to write it and I’m sure I’ll enjoy reading it. But unless you hear news of a big win for this appeal, my stake in this debate is, at present, focused on its political valence as explained above.
Two points in your post that do bear upon my interests:
You had asked me why everyone is so predisposed to side with Judge Smith and I answered:
“Probably because all of us are inclined to believe that a sexually repressive law such as this one does indeed violate the constitutional right to privacy.”
You replied:
“An opinion held without the slightest inquiry into what the law actually says…”
Call me over-generous, but the fact that I’m still here on page 4 of this thread, and have posted at least 4 links on the subject, and have read several other links does seem to suggest that my inquiry into “what the law actually says” is far from slight.
"I have yet to see in this thread one post that states why the poster is so sure Judge Smith is correct, other than “I just don’t like this particular law.”
Proof that you have paid very little attention to what others have been saying–particularly me. Search this thread and adduce evidence of any layperson who has offered a positive legal opinion on Judge Smith’s rulings. I don’t recall any such opinion, and I know for sure that I’ve never said that I’m confident that Pryor will lose a second appeal. On the contrary, I read somewhere that the ACLU lawyers were worried about the first appeal b/c they know that the “rights” argument can be dangerous. And the Libertarian websites are especially annoyed that the constitutional bars to a ban of this kind are so tenuous and arguable. My position has never been that of legal expert with a confirmed specialist opinion of the law’s unconstitutionality; always that of a concerned citizen.
As Americans many of us are inclined to believe that our right to privacy is constitutionally guaranteed; but the fact is that there are limits on those protections. All the more reason to be vigilant about judicial nominations. I’d like to see this case won on grounds of the right to privacy; I prefer that to the first rationale which seemed like a dodge, though possibly one that was prudent.
Sauron, there are already answers to almost all of your posts in my prior posts–re-read them if you care too. A few gaps.
“I fail to see how this law is sexually repressive.”
Well that explains a lot. The law is sexually repressive b/c it prohibits the sale of a sexual device intended for private sexual use. In so doing it stigmatizes the use of that device. It also makes it difficult for citizens to get hold of that device if, say, they never travel out of state or do not have internet access.
In case you don’t understand what is meant by “stigmatization”: Do you not imagine that there are many in Alabama who, after reading about the vibrator ban in the papers suddenly felt that he or she would never seek to buy such an “obscene” and morally dubious device–even if he or she traveled out of state?
“It’s commercially repressive, sure. Just like the law against selling alcohol on Sundays. But I don’t see any fewer people drinking because of that law.”
That’s hardly a scientific observation, Sauron. I can, if you wish, point you to evidence that pub closings in nineteenth-century Britain reduced drinking levels among the working classes. In any case, the analogy is weak: vibrator sales are banned 24/7 in Alabama; and it’s also a lot easier to stigmatize the use of a sexual device designed to penetrate a bodily orifice than it is to stigmatize alcohol.
And this again…
“[Pryor] argued that ‘commerce in the pursuit of orgasms by artificial means for their own sake is detrimental to the health and morality of the State.’” Pryor isn’t saying orgasm itself is the issue; he’s saying the commerce in the pursuit of same is detrimental to the health and morality of the State."
Okay, Sauron, I’m going to try this one more time. The law doesn’t mention orgasm, it only mentions obscenity and devices sold to stimulate human genitals. Once you are talking about the pursuit of orgasms you have–though perhaps quite inadvertently–put use into play. You are now suggesting that not only the sale of the device, but the actual use for which the device is intended–not merely the stimulating of genitals but the whole nine yards (ORGASM, GETTING OFF) is what’s problematic for the state’s health and morality.
Pryor could have avoided this by staying closer to the language of the statute. Instead, he opened the door to discussing the articificial orgasm sought for its own sake as matter of public health and morality. It’s my opinion that no one who wasn’t deeply affected my a sexually repressive religious mentality would make that argument phrased in that way–even if he or she felt ethically obligated to win this case to the best of his/her abilities"
