Getting Government Out of the Bedroom?

J. Kelly Strader, a professor of law at Southwestern Law School in Los Angeles, has a commentary in today's Los Angeles Times discussing the impact – or the alleged lack thereof – of the Lawrence vs. Texas decision on laws and court rulings about sexual behavior. The piece starts out mentioning the effort to repeal the California Marriage Amendment, then quickly moves on to Lawrence, maintaining that that there is a "constant threat to our privacy rights."

The police in that case -- acting on a false tip of a weapons disturbance -- burst unannounced into John Lawrence's home and found him having sex with another man.

I'm not sure about this, but wasn't that "false tip" provided by the defendants as a deliberate set-up to challenge the law? How are these kinds of laws even applied if everything is consensual and done in private? How does law enforcement know the law is being broken? But there is a larger goal at work – removing any law against the behavior helps pave the way for a "right" to government sanction of the behavior, and to forcefully eliminate any public moral encouragement or pronouncement that promotes some sexual behaviors (such as chastity outside of marriage, fidelity within marriage) as better than others.

[Much, much more after the jump.]

The Lawrence decision overturned Bowers and explicitly repudiated Bowers' morality-based rationale. The high court in Lawrence -- citing Justice John Paul Stevens' dissent in Bowers -- stated that "the fact that the governing majority in a state has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice."

Strangely, all of our laws – including the Constitution, are about what we think is moral or immoral. We believe it is immoral for the federal government to interfere with freedom of religion, unless that religious expression involves assault, negligence, murder, etc. Whether utilitarian or libertarian or whatever in motivation, all law is about right and wrong.

So, based on the reasoning in the Lawrence decision, you might conclude that lower courts would strike down laws that are solely based on majoritarian morality. You would be wrong.

Or, perhaps Strader is wrong in portraying the laws discussed as "solely based on majoritarian morality", even if that's all the decisions cite?

In one case, a federal appeals court in Alabama upheld that state's law criminalizing the sale of sex toys.

Various states criminalize the sale of various items. In California, I can't legally buy a ferret. Soon, if not already, restaurants will not be able to sell me foods with certain fats. I happen to not agree with that law in Alabama. That's one reason not to live there.

The court found that "public morality" alone was a sufficient basis for the law, despite Lawrence's admonition to the contrary.

You don't see a difference between consensual, private behavior and commercial business transactions?

In North Carolina, the state Supreme Court upheld the conviction of a minor under the state's quaintly named "crime against nature" statute -- a boy who had intercourse and oral sex with his girlfriend. Because the boy and girl were within three years of each other's ages, the boy was not liable under North Carolina's statutory rape law for having had vaginal intercourse with the girl.

The statutory rape law should be different. None of the behavior should have been legal because it involved minors.

In these cases and many others, courts have failed to apply Lawrence. The language in many of these decisions shows that the real reason the courts have refused to do so is that judges simply do not agree with its premise.

There are other SCOTUS decisions that courts have subsequently not applied or gone against. Lawrence would not be unique in that regard. After all, Lawrence itself went against a recent previous decision – Bowers – as already noted.

Many judges continue to think that majoritarian morality rules.

What's the alternative? Minority morality? Why should the minority set the moral boundaries? The Constitution itself represent majoritarian morality of those who adopted it.

Fortunately, some courts are becoming more enlightened.

I see. When a court agrees with you, it is "enlightened" - or what?

Enlightened: "to give intellectual or spiritual light to; instruct; impart knowledge to"

I'm assuming Strader doesn’t want "spiritual light" applied by the court. So let's go with "intellectual", "instruct", "impart knowledge to".

Some courts certainly are instructing these days, such as instructing state personnel to ignore the will of the people and neuter marriage licenses.

Is it possible that courts who have ruled in ways Strader doesn't like have applied knowledge to the situation and have come to a different conclusion? That would not make them unenlightened. This is a common mistake among some people – if you disagree with their conclusions or say no to their requests, it "has to be" because you are ignorant. I wrote about this here.

Perhaps the courts that Strader calls "enlightened" have another principle at work, whether indifference, hostility to traditional morality, personal lusts, or a simple preference for limiting the reach of legislation?

Certainly, the Supreme Court should more firmly assert the right to sexual privacy it announced in Lawrence.

I'm all for sexual privacy, with certain understandings such as the requirement of consent, that state-issued marriage licenses are public matters, and that children have certain rights that government should protect – even though children are usually the result of private sexual behavior.

I also recognize the difference between a right to private behavior in your own home and a "right" to have government assistance in dealing with the consequences of that behavior, or to have public endorsement and sanction of that behavior. I agree that two (or more) adults, generally, should not have to fear law enforcement barging through a locked bedroom door and interrupt their consensual behavior, but that is different from those adults being able to use the force of government to stop someone else from criticizing that behavior.

I generally back the principle of limiting government, so in this specific area I probably have a lot in common with Strader.

Here is something I wrote as part of a series about the “religious right” (RR) on my namesake blog:

I don't know of any RR leader that advocates that police be able to execute warrants to forcibly enter bedrooms and hotel rooms to arrest people who aren’t married to each other strictly for having sex on a voluntary basis. In addition to privacy concerns, it’s not practical. However, people in the RR are likely to oppose any attempt to codify into law a "right" to sex outside of marriage.

In other words, doing this even in privacy would be discouraged and frowned upon by a member of the RR, but they wouldn't go so far as to advocate that you be hauled off to jail. So, why do you care if someone from the RR believes and proclaims this moral? How does it harm you? It only harms you in the sense that the RR does not agree that certain things commonly related to sex outside of wedlock should be "rights" that you should be allowed to codify into law – things I'll get to later.

There ARE exceptions - instances where the law does (or has in some places in some times) restrict or regulate sexual activity - activity involving at least one person’s sexual organs - outside of marriage, including:

-Knowingly exposing another person to an STD without their consent.

-"Alienation of affection" (adultery).

-"Breach of promise" (not marrying after having sex).

-Homosexual activity.

-Incest.

-Uh, "with animals".

-Restrictions on "adult" businesses.

-Restrictions on "obscenity"/pornography/erotica.

-Prostitution.

-Sexual harassment.

-Indecent exposure.

-Rape (which, as we all know, is an act of violence, but it does usually involve sexual organs/gratification of the rapist).

-Sex with someone under the age of consent (statutory rape).

-Molestation.

-Child support – where the law forces a man to pay for his children, whether or not he wanted to be a father, because he used his genitals. (Women who do not want to be mothers can legally abort their children or even surrender them to within 72 hours of birth.)

In some of these cases, it does become a matter of government force being used to regulate or restrict things you are doing with your own organs, and I know for some of that list, the majority or a significant minority of the U.S. would say that some or all levels of government should not be involved in those matters. I also concede that for most of these, there are more principles involved than simply "sex is for marriage," such as consent, public health, etc. However, we do see that the law can, has, and continues to regulate sexual activity to some extent, though it would be impossible to legally enforce a law that restricted sex to marriage. I as I wrote earlier, I don't know of anybody in the RR that advocates this. What the RR does advocate is that people should live by this moral, and should not expect to be protected by law from the consequences of not adhering to this moral.