OK, I thought there would be discussion about this already, but I guess I’m the one to start it.
The Supreme Court decided that the state (in this case the State of Texas) has no business in the bedrooms of consenting adults.
Somehow this has been touted as an opening for gay marriage. Not that I care who can get married, except I think everyone ought to have the option, but how does the Supreme Court decision have anything to do with marriage?
George Will’s column on this topic makes the case that this ruling tacitly legalizes quite a few things including prostitution. His column provides some context and interpretation of the ruling that might address your question.
http://www.sacbee.com/content/opinion/national/will/story/6930381p-7879741c.html
The privacy decision does away with one popular rationalization for the gay marriage laws: that such marriages would involve illegal acts (namely, “sodomy”). The legal underpinnings of marriage, however, have little to do with sex. I’m sure a more knowledgable source will be along, but for now I must say that marriage as a civil institution is primarily concerned with property rights, and only secondarily with consortium.
And, of course, Will’s article is poppycock.
Because the majority opinion in the case was stated so strongly, there is a concern among those who oppose “gay rights” that the privacy argument, when taken to its logical end, will not only require repeal of sodomy laws, but indeed, will require recognition of marriage between same-sex people and even require legal prostitution, so long as such prostitution is done in the privacy of one’s own home.
Whether these arguments are true will be up to the Court to decide the next time one of these issues comes before it. My money, however, is on the Court rejecting any prostitution or gay-marriage claim based on the Lawrence decision.
This is going to be a way oversimplified post answer on a topic that could be the subject of many lengthy law review articles, so forgive me in advance:
The Supreme Court has ruled in the past that marriage is of “fundamental importance” and a “part of the fundamental right to privacy implicit in the fourteenth amendment’s due process clause.” State laws that restricted marriage have been struck down on grounds of both the right to privacy and equal protection. However, the right to privacy was adjudged to not protect sodomy in Bowers v. Hardwick, so a homosexual marriage was a fortiori even less protected; and gay people were not a protected class under the equal protection clause, meaning that a law that treats gays differently must only have a rational basis and not be completely arbitrary and unreasonable. Public morality was considered good enough reason.
The Lawrence ruling removed the barrier of Bowers; if sodomy is a protected activity, and marriage is a protected activity, it’s only a matter of time until someone argues homosexual marriage is a protected activity. Additionally, the equal protection clause is more of a barrier to state legislation banning homosexual marriage, because protecting public morality was rejected as a rationale in Lawrence.
Since this is GQ, would you mind saying why? I’m not backing Will’s position. I leave interpretation of the Supremes to the pros, and I would be interested in seeing any rebuttal of Will’s comments. Basically he seems to be saying what other posters in this thread have said, that this extension of privacy rights may have consequences in other issues. Of course he takes it to extremes in discussing prostitution and drugs, but that doesn’t make him wrong. It just makes him a columnist.
Mr. Will is dead right in all his conclusions, but I couldn’t disagree more with his assessment of those conclusions.
The big breakthrough in this case is not the decriminalization of gay sex, but the decriminalization of consensual private behavior. And yes, that principle should be applied to all victimless behavior between consenting adults, including all of Mr. Will’s examples of distasteful (to him) behavior.
Not really a GQ topic, but Will’s rhetoric is to frighten people with the idea of incest if the sex that straights can have is deemed private enough that gays can have it, too. I can not believe that legal doctrines travel in such smooth and rapid lines to go from one (philosophical) reading to another, one with radically different applications, without any future refinedment.
On the GQ topic, I believe people see this as helping gay marriage, not so much on the grounds of marriage per se, but in that a rather conservative court sees that the social tide on gay civil rights is turning.
The essence of Will’s folly lies in this sentence: “Given the Supreme Court’s 6-3 ruling Thursday that Texas’ anti-sodomy law violates the constitutional privacy right, lap dancing – like prostitution, for that matter – looks like a fundamental constitutional right.”
It should be fairly obvious that lap-dancing does not take place in the privacy of one’s home. It should also be obvious that both nude dancing and prostitution are commercial activities, and only incidentally sexual. No right to privacy should be construed to limit a government’s power to regulate commerce, to zone the use of property, or to restrict public behavior to community standards.
Remember, folks, many states do enumerate a right to privacy in their laws or constitutions, and prostitution remains illegal in all of them, and all of them probably have some laws about what you can’t do in a strip club. George Will is a turnip.
Purchasing contraceptives and getting an abortion also do not take place in the privacy of one’s own home. Both involve commerce (unless you’re getting it free from Planned Parenthood) and, for those who wish to restrict those activities, fall within government’s power to restrict public behavior.
So you’ll need to come up with a different rationale why he’s wrong.
Good subject, wrong forum. Try Lawrence & Garner v Texas – Decision?
As to Will:
I reread the Constitution this morning, and saw not a thing about lap dancing in it. Or prostitution, or screwing one’s children or one’s gerbil, or one’s same-sex lover. Don’t talk to me about a constitutional right to lap dancing or child rape. It ain’t there.
As far as I can determine, Will is making the point that if we deregulate sex, we deregulate all FORMS of sex, which is patently ridiculous. I personally draw a BIG honkin’ line between “two 25-year-old-men having consensual sex” and “Daddy having ‘consensual’ sex with his eight-year-old daughter.” I suspect a majority of my society would, as well, WHICH IS WHAT THE LAW IS ALL ABOUT. We DECIDE what the laws are, dammit! Isn’t that why we vote these idiots into office? To represent our interests, and work our will upon our government?
Will also makes the point that every society legislates morality to some extent, in that societies wanna regulate marriage, childrearing, and so forth. This is, for the most part, true. And historically, nearly every society has oppressed women, encompassed slavery (or at least chattel), and done lots of other things that we would consider reprehensible…
…AND THEN THEY GREW THE HELL UP AND CHANGED IT. Most of us, anyway.
Why is it RIGHT to deregulate large corporations… and WRONG to deregulate what consenting adults do in their own homes?
“George Will is a turnip.” That made me laugh out loud.
Schplebordnik, i don’t get your point. Explain again, please?
Yes indeedy, and they are restricted; rather makes my point, thank you. However, because an unwanted pregnancy can be an undue burden on the mother, these activities cannot be banned outright. It’s true that privacy was addressed in the Supreme Court decisions that make such bans unconstitutional, but it was only one consideration. Those decisions do show, however, that some right to privacy existed before last week’s decision, making Will’s column sound a little hysterical.
I’ve argued the point over in the GD thread I started and which is linked to above, but the clear point of the decision to me is that there is no Constitutional “right to commit sodomy” but rather a “right to autonomy in intimate personal affairs” founded on the First Amendment right of free association and the Fourth Amendment guarantee that citizens are to be “secure in their persons, homes … against unreasonable [government] searches and seizures” and the extension of this right as against state regulation via the Fourteenth Amendment.
In short, you have a right to associate with whom you choose, to decide the closeness of that association, to fall in love with and become intimate with whom you choose, and to engage in sexual relations with that person if you so choose, and the states have no power to regulate that choice – so long as you are in the privacy of your own home, you and your paretner are consenting adults, etc.
Justice Kennedy did a brilliant job, IMHO, of defining what that right is, why it is protected, and what the limitations on it are.
You think he’s bad, check out the one by my ol’ buddy ::retch:: Cal Thomas. A fellow turnip.
Note that there is a tendency among many political hell raisers to use the old “If we let in pool halls, the town will turn into a cesspool of sin overnight.” style arguments.
It’s astonishing that the press in general, and therefore the easily lead public, buy this kind of “logic”.
People on the losing side of the sway of public opinion try to point out where things could go if you travelled farther down different roads. All you have to keep in mind is that a) you don’t have to travel farther and b) it’s a different road.