Happy V-Day From The 5th Circuit
February 14, 2008 12:02 PM Subscribe
"I've been anticipating this for some time," said Ray Hill, consultant for a number of local adult bookstores, speaking of the infamous Texas Dildo Law [Molly Ivins video, not only NSFW but too funnt for work] prohibiting the posession of six or more "obscene devices."
Infamous prosecutions under the law included Joanne Webb, a Baptist mother from Burleson who worked as a "consultant" through Passion Parties, a sort of erotic version of Tupperware or Avon.
Although the case against Webb was eventually dropped, Travis County DA Ronnie Earle has yet to reveal whether he intends to pursue an appeal in the current matter. Keep your briefs ready just in case! previously
Infamous prosecutions under the law included Joanne Webb, a Baptist mother from Burleson who worked as a "consultant" through Passion Parties, a sort of erotic version of Tupperware or Avon.
Although the case against Webb was eventually dropped, Travis County DA Ronnie Earle has yet to reveal whether he intends to pursue an appeal in the current matter. Keep your briefs ready just in case! previously
I miss Molly Ivins so much.
posted by Pope Guilty at 12:08 PM on February 14, 2008 [3 favorites]
posted by Pope Guilty at 12:08 PM on February 14, 2008 [3 favorites]
Well, that's just great.
Don't you love farce?
My fault I fear.
I thought that you'd want what I want.
Sorry, my dear.
But where are the dongs?
Quick, send in the dongs.
Don't bother, they're here.
Isn't it rich?
Isn't it queer,
Losing my timing this late
In my career?
And where are the dongs?
There ought to be dongs.
Well, maybe next year.
posted by boo_radley at 12:09 PM on February 14, 2008 [2 favorites]
Don't you love farce?
My fault I fear.
I thought that you'd want what I want.
Sorry, my dear.
But where are the dongs?
Quick, send in the dongs.
Don't bother, they're here.
Isn't it rich?
Isn't it queer,
Losing my timing this late
In my career?
And where are the dongs?
There ought to be dongs.
Well, maybe next year.
posted by boo_radley at 12:09 PM on February 14, 2008 [2 favorites]
I would like to see a 1000-word analysis of why the Texas legislature chose the number six. The analysis should address the Freudian basis of the legislatures deliberation. Did someone commission a study confirming five was somehow the maximum number that would be simultaneously usuable? And that a sixth one would be left unused and idle in the corner, forced to watch the vigorous deployment of the other five with its head in its hands, sobbing over its inadequacies?
I'm surprised they didn't add size and color restrictions. Texas is a strange place.
posted by Pastabagel at 12:23 PM on February 14, 2008 [14 favorites]
I'm surprised they didn't add size and color restrictions. Texas is a strange place.
posted by Pastabagel at 12:23 PM on February 14, 2008 [14 favorites]
At long last, I won't have to ask to see the "cake decorations."
posted by Devils Rancher at 12:26 PM on February 14, 2008 [1 favorite]
posted by Devils Rancher at 12:26 PM on February 14, 2008 [1 favorite]
Hell, I thought there were only two dildos in Texas... George and his Dad.... I don't know why they chose the number 6....
And... Molly was great.....
posted by HuronBob at 12:27 PM on February 14, 2008
And... Molly was great.....
posted by HuronBob at 12:27 PM on February 14, 2008
As with every thread involving a recent legal opinion, it would be useful to post the opinion so that the actual issues can be discussed. Here is the opinion. The issues are much more complex than suggested in that Houston Chron article. I suspect that the Appellees will request am en banc rehearing because so little is involved in that. But I doubt it would be taken up by the Supreme Court.
posted by dios at 12:28 PM on February 14, 2008 [2 favorites]
posted by dios at 12:28 PM on February 14, 2008 [2 favorites]
I wonder about the number too, Pastabagel.
I can't imagine anybody using more than, say, three at a time.
posted by Target Practice at 12:29 PM on February 14, 2008
I can't imagine anybody using more than, say, three at a time.
posted by Target Practice at 12:29 PM on February 14, 2008
I can't imagine anybody using more than, say, three at a time.
Having grown up on the internet I, unfortunately, can.
posted by lattiboy at 12:35 PM on February 14, 2008 [5 favorites]
Having grown up on the internet I, unfortunately, can.
posted by lattiboy at 12:35 PM on February 14, 2008 [5 favorites]
Well, I guess it depends on their size.
and also if we're including bullet vibrators and the like.
posted by Target Practice at 12:37 PM on February 14, 2008
and also if we're including bullet vibrators and the like.
posted by Target Practice at 12:37 PM on February 14, 2008
Oh my God, I feel like an idiot. I've actually been using those as educational models and personal massage items.
posted by Astro Zombie at 12:37 PM on February 14, 2008 [9 favorites]
posted by Astro Zombie at 12:37 PM on February 14, 2008 [9 favorites]
The issues are much more complex than suggested in that Houston Chron article.
How so?
posted by Armitage Shanks at 12:45 PM on February 14, 2008
How so?
posted by Armitage Shanks at 12:45 PM on February 14, 2008
(vigorously massages FPP with Hitachi magic wand)
PS. IT'S FOR MY BACK. I SWEAR.
posted by Unicorn on the cob at 12:54 PM on February 14, 2008
PS. IT'S FOR MY BACK. I SWEAR.
posted by Unicorn on the cob at 12:54 PM on February 14, 2008
I really do need to know how to use one of those for judicial or law enforcement purposes. I keep envisioning a replacement for a police baton...or a gavel.
posted by vewystwange at 12:54 PM on February 14, 2008 [1 favorite]
Don't mess with more than six dildoes.
posted by stinkycheese at 12:58 PM on February 14, 2008 [1 favorite]
posted by stinkycheese at 12:58 PM on February 14, 2008 [1 favorite]
The issues are much more complex than suggested in that Houston Chron article.
How so?
The quadratic equation is involved.
Now you see why this is considered mature subject matter?
posted by Bathtub Bobsled at 1:03 PM on February 14, 2008 [2 favorites]
How so?
The quadratic equation is involved.
Now you see why this is considered mature subject matter?
posted by Bathtub Bobsled at 1:03 PM on February 14, 2008 [2 favorites]
From the previous thread...
BentPenguin asks...
and bondcliff responds.
And there you have one of the funniest comments I've ever seen on MetaFilter.
posted by Faint of Butt at 1:04 PM on February 14, 2008 [2 favorites]
BentPenguin asks...
and bondcliff responds.
And there you have one of the funniest comments I've ever seen on MetaFilter.
posted by Faint of Butt at 1:04 PM on February 14, 2008 [2 favorites]
There is no complexity to this legal issue other than complexities introduced by its supporters introduce to mask the very simple underlying psychological issues.
And the legal issue is actually quite simple, and was summarized by the Court in the opinion that you linked: "Just as in Lawrence, the State here wants to use its laws to enforce a
public moral code by restricting private intimate conduct. The case is not about
public sex. It is not about controlling commerce in sex. It is about controlling
what people do in the privacy of their own homes because the State is morally
opposed to a certain type of consensual private intimate conduct. This is an
insufficient justification for the statute after Lawrence. "
The issue is that the State, not its citizens but the State itself, rendered illegal "the selling, advertising, giving, or lending of a device designed or marketed for sexual stimulation unless the defendant can prove that the device was sold, advertised, given, or lent for a
statutorily-approved purpose."
The restriction on commerce is the oh-so-clever ultra-conservative attempt to impose morality. They couldn't restrict the use of the sex aids in the statute, because both Texas and Supreme Court precedent clearly protected such use. So they tried to end-run the law by restricting commerce, because you can't use something you can buy or borrow.
This is a common tactic. Early statutes allowed people to be gay, but just not practice sodomy. You can consume pornography, but the people who make it can't move ship it in the mail or distribute it across state lines. Etc. You can use a dildo, you just can't acquire one.
Furthermore, the statute explicitly defines a dildo as an obscene device. It defines obscene as a patently offensive representation of the male genitals in a state of arousal, and defines "patently offensive" as so offensive as to affront current community standards of decency.
Let's be blunt. The statute states that a dildo is so offensive as to affront community standards of decency because it depicts an erection. That's what the statute states. (see pages 13-14 of the pdf dios linked). But think about this. How can a real erection (whose only function is sexual) not be patently offensive but an artificial erection is? The answer is because dildo's are exaggerated representations. In other words, the only reason an actual erection is not in violation of a statute but a dildo is is because a dildo's exagerrated size is what renders it "patently offensive". They're offensive because they are too big.
The issue here is not a legal one, it is a psychological one. The legislature didn't want women using huge fake penises to masturbate. The reason they didn't want this is directly related to male legislators' feeling inadequate, or feeling threatened generally by women's sexuality, which is a recurring them in U.S. politics.
posted by Pastabagel at 1:15 PM on February 14, 2008 [18 favorites]
And the legal issue is actually quite simple, and was summarized by the Court in the opinion that you linked: "Just as in Lawrence, the State here wants to use its laws to enforce a
public moral code by restricting private intimate conduct. The case is not about
public sex. It is not about controlling commerce in sex. It is about controlling
what people do in the privacy of their own homes because the State is morally
opposed to a certain type of consensual private intimate conduct. This is an
insufficient justification for the statute after Lawrence. "
The issue is that the State, not its citizens but the State itself, rendered illegal "the selling, advertising, giving, or lending of a device designed or marketed for sexual stimulation unless the defendant can prove that the device was sold, advertised, given, or lent for a
statutorily-approved purpose."
The restriction on commerce is the oh-so-clever ultra-conservative attempt to impose morality. They couldn't restrict the use of the sex aids in the statute, because both Texas and Supreme Court precedent clearly protected such use. So they tried to end-run the law by restricting commerce, because you can't use something you can buy or borrow.
This is a common tactic. Early statutes allowed people to be gay, but just not practice sodomy. You can consume pornography, but the people who make it can't move ship it in the mail or distribute it across state lines. Etc. You can use a dildo, you just can't acquire one.
Furthermore, the statute explicitly defines a dildo as an obscene device. It defines obscene as a patently offensive representation of the male genitals in a state of arousal, and defines "patently offensive" as so offensive as to affront current community standards of decency.
Let's be blunt. The statute states that a dildo is so offensive as to affront community standards of decency because it depicts an erection. That's what the statute states. (see pages 13-14 of the pdf dios linked). But think about this. How can a real erection (whose only function is sexual) not be patently offensive but an artificial erection is? The answer is because dildo's are exaggerated representations. In other words, the only reason an actual erection is not in violation of a statute but a dildo is is because a dildo's exagerrated size is what renders it "patently offensive". They're offensive because they are too big.
The issue here is not a legal one, it is a psychological one. The legislature didn't want women using huge fake penises to masturbate. The reason they didn't want this is directly related to male legislators' feeling inadequate, or feeling threatened generally by women's sexuality, which is a recurring them in U.S. politics.
posted by Pastabagel at 1:15 PM on February 14, 2008 [18 favorites]
I would like to see a 1000-word analysis of why the Texas legislature chose the number six.
One for each orifice, and a backup for each in case it breaks on the job?
posted by PeterMcDermott at 1:18 PM on February 14, 2008
One for each orifice, and a backup for each in case it breaks on the job?
posted by PeterMcDermott at 1:18 PM on February 14, 2008
Passion Parties? I thought those were just fictional creations of bad porn, like pool boys or lesbian orgies!
posted by symbioid at 1:21 PM on February 14, 2008
posted by symbioid at 1:21 PM on February 14, 2008
The Wet Spots may have to rework their awesome song "Texas Annie" which sports the chorus "You can't buy a dildo in Texas / We don't touch ourselves down there 'round here"
I'm also reminded of a lovely friend of mine in Austin who insisted on *always* having at least seven dildos on hand so that she was always, in spirit, violating the letter of that ridiculous law.
Welcome to the 21st Century, Texas!
posted by kuppajava at 1:24 PM on February 14, 2008 [2 favorites]
I'm also reminded of a lovely friend of mine in Austin who insisted on *always* having at least seven dildos on hand so that she was always, in spirit, violating the letter of that ridiculous law.
Welcome to the 21st Century, Texas!
posted by kuppajava at 1:24 PM on February 14, 2008 [2 favorites]
PeterMcDermott: One for each orifice, and a backup for each in case it breaks on the job?
Are you counting nostrils or earholes?
Not sure I really want to know which one, and if it isn't one of those two I really don't want to know.
posted by Challahtronix at 1:34 PM on February 14, 2008
Are you counting nostrils or earholes?
Not sure I really want to know which one, and if it isn't one of those two I really don't want to know.
posted by Challahtronix at 1:34 PM on February 14, 2008
But I doubt it would be taken up by the Supreme Court.
There's now a solid split between the 5th and 11th Circuits on this issue, so I wouldn't be surprised if it goes up. Also, I like that Judge Barksdale began his concurring/dissenting opinion with a sentence including the phrase "friction-producing."
posted by monju_bosatsu at 1:35 PM on February 14, 2008 [1 favorite]
There's now a solid split between the 5th and 11th Circuits on this issue, so I wouldn't be surprised if it goes up. Also, I like that Judge Barksdale began his concurring/dissenting opinion with a sentence including the phrase "friction-producing."
posted by monju_bosatsu at 1:35 PM on February 14, 2008 [1 favorite]
God forbid that the God-fearing women of Texas should ever insert anything into that most shameful and vile of orifices other than the feeble pencil-dicks of their lawfully wedded Fundamentalist spouses, who can't get more than semisoft for anything but furtive molestation of young boys, for anything but a joyless, dutiful missionary hump for the purposes of procreation. I mean, what's next? Miscegnation?!?
posted by DecemberBoy at 1:40 PM on February 14, 2008 [1 favorite]
posted by DecemberBoy at 1:40 PM on February 14, 2008 [1 favorite]
Keep your briefs ready just in case!
Keep your boxers and briefs nearby, just in case!
posted by ericb at 1:42 PM on February 14, 2008
Keep your boxers and briefs nearby, just in case!
posted by ericb at 1:42 PM on February 14, 2008
I mean, what's next? Miscegnation?!?
And matriculation! And Thespianism! I tell you, this is a slippery, lubricated slope.
posted by Devils Rancher at 1:58 PM on February 14, 2008
And matriculation! And Thespianism! I tell you, this is a slippery, lubricated slope.
posted by Devils Rancher at 1:58 PM on February 14, 2008
There is no complexity to this legal issue
There are complexities to it. First, there is a giant and controversial question as to whether Lawrence proscribed a fundamental rights/strict scrutiny analysis in such cases or a rational basis review (what of the O'Connor concurrence?). Second, the opinion completely punts on the commercial speech issue on ripeness grounds and remands the case. Third, there is a distinction here between personal conduct to be protected under some nebulous right to privacy?/liberty?/substantive due process? and an explicitly public act of advertising them.
On preview:
There's now a solid split between the 5th and 11th Circuits on this issue, so I wouldn't be surprised if it goes up.
posted by monju_bosatsu at 3:35 PM on February 14
Well, the law is issue is essentially precatory statement. The state likely does not really care if the law exists or not. My guess is that they only issue that they are concerned with in this issue is whether a federal court is going to be striking down state law aggressively under Lawrence on strict scrutiny laws. But my guess is that if they lose a rehearing en banc, they may just drop it because they are likely to get a similar ruling as to Lawrence. This opinion itself isn't terribly clear on whether it is a fundamental rights issue--in fact, they seem to go to lengths to avoid that pothole. So right now, its somewhat of an open question in which they might successfully win with a case with better facts. But if they take it up, they may (and probably will) receive a ruling they won't like. I just remember something I was taught as a baby lawyer about wanting to appeal things: unclear adverse rulings are better than clear adverse rulings.
posted by dios at 2:00 PM on February 14, 2008
There are complexities to it. First, there is a giant and controversial question as to whether Lawrence proscribed a fundamental rights/strict scrutiny analysis in such cases or a rational basis review (what of the O'Connor concurrence?). Second, the opinion completely punts on the commercial speech issue on ripeness grounds and remands the case. Third, there is a distinction here between personal conduct to be protected under some nebulous right to privacy?/liberty?/substantive due process? and an explicitly public act of advertising them.
On preview:
There's now a solid split between the 5th and 11th Circuits on this issue, so I wouldn't be surprised if it goes up.
posted by monju_bosatsu at 3:35 PM on February 14
Well, the law is issue is essentially precatory statement. The state likely does not really care if the law exists or not. My guess is that they only issue that they are concerned with in this issue is whether a federal court is going to be striking down state law aggressively under Lawrence on strict scrutiny laws. But my guess is that if they lose a rehearing en banc, they may just drop it because they are likely to get a similar ruling as to Lawrence. This opinion itself isn't terribly clear on whether it is a fundamental rights issue--in fact, they seem to go to lengths to avoid that pothole. So right now, its somewhat of an open question in which they might successfully win with a case with better facts. But if they take it up, they may (and probably will) receive a ruling they won't like. I just remember something I was taught as a baby lawyer about wanting to appeal things: unclear adverse rulings are better than clear adverse rulings.
posted by dios at 2:00 PM on February 14, 2008
(Sorry for the typos in that second paragraph. That's what I get for typing on the phone in a hurry)
posted by dios at 2:02 PM on February 14, 2008
posted by dios at 2:02 PM on February 14, 2008
Lawrence was decided 6-3 (with the 3 nutjobs opposing, natch), with the loss of O'Connor it'd probably be decided 5-4, unless Kennedy flip-flops. Stevens, God Bless, has held on long enough for Bush's successor to make the appointment.
posted by panamax at 2:07 PM on February 14, 2008
posted by panamax at 2:07 PM on February 14, 2008
“They're offensive because they are too big.”
Looks like I can’t go to Texas.
/Texas Dildo Law was my band’s name in high school
posted by HVAC Guerilla at 2:12 PM on February 14, 2008
Looks like I can’t go to Texas.
/Texas Dildo Law was my band’s name in high school
posted by HVAC Guerilla at 2:12 PM on February 14, 2008
There's now a solid split between the 5th and 11th Circuits on this issue, so I wouldn't be surprised if it goes up. Also, I like that Judge Barksdale began his concurring/dissenting opinion with a sentence including the phrase "friction-producing."
posted by monju_bosatsu at 4:35 PM on February 14
I think you are probably right, but only because the "cleverness" in end-running Constitutional rights is more entrench in the 11th Circuit. To wit: "A 'right to private consensual sodomy,' the Eleventh Circuit eventually ruled, does not imply a 'right to buy or sell a dildo.'. Nice try, casting the use of dildos as some form of sodomy by relying on the literal facts of the precedent rather than it's legal conclusion. It almost slipped past me.
Furthermore, the conclusion is silly. The freedoms of speech and the press do not imply the right to buy a book either. The right to bear arms does not imply the right to traffic in them. etc ad nauseum. The existence of a right implies the freedom to exercise that right. Exercising any right invariably has a commercial dimension.
Again, I would like to know why the Texas legislature felt it needed to find a way to limit women's use of dildos. And I'm serious this time.
posted by Pastabagel at 2:15 PM on February 14, 2008
posted by monju_bosatsu at 4:35 PM on February 14
I think you are probably right, but only because the "cleverness" in end-running Constitutional rights is more entrench in the 11th Circuit. To wit: "A 'right to private consensual sodomy,' the Eleventh Circuit eventually ruled, does not imply a 'right to buy or sell a dildo.'. Nice try, casting the use of dildos as some form of sodomy by relying on the literal facts of the precedent rather than it's legal conclusion. It almost slipped past me.
Furthermore, the conclusion is silly. The freedoms of speech and the press do not imply the right to buy a book either. The right to bear arms does not imply the right to traffic in them. etc ad nauseum. The existence of a right implies the freedom to exercise that right. Exercising any right invariably has a commercial dimension.
Again, I would like to know why the Texas legislature felt it needed to find a way to limit women's use of dildos. And I'm serious this time.
posted by Pastabagel at 2:15 PM on February 14, 2008
I really do need to know how to use one of those for judicial or law enforcement purposes.
"Young lady are you familiar with the penal codes in this state?" [@ 1:05 - this has been rattling around in my brain for about 25 years]
posted by The Bellman at 2:18 PM on February 14, 2008
"Young lady are you familiar with the penal codes in this state?" [@ 1:05 - this has been rattling around in my brain for about 25 years]
posted by The Bellman at 2:18 PM on February 14, 2008
Lawrence was decided 6-3 (with the 3 nutjobs opposing, natch), with the loss of O'Connor it'd probably be decided 5-4, unless Kennedy flip-flops.
Given the worthless nutjob comment, this is probably a complete waste of my time attempting to discuss this issue with you, but I'll try anyhow:
To discuss Lawrence, you can't discuss the result. The important part of that decision is to discuss what the rule of law is that came from it. The majority opinion (5 votes) discussed the issue at stake in that case as something that approximated a fundamental right protected under some nebulous liberty right protected by substantive due process of the Fourteenth Amendment. Yet, while treating the underlying conduct as something that approximates a fundamental right, the majority never applied a strict scrutiny level of analysis that is the standard to be applied when state action impinges on a fundamental right. So it is not clear that strict scrutiny is the standard to be applied. If that issue is back before them and the emphasis is on the strict scrutiny/rational basis issue, such an opinion could arguably be different. O'Connor's concurrence painted perhaps a clearer path for the Court to take on such cases by relying on equal protection grounds. But if that is the analysis that prevails, it would lead to a different result in this dildo case.
posted by dios at 2:22 PM on February 14, 2008
Given the worthless nutjob comment, this is probably a complete waste of my time attempting to discuss this issue with you, but I'll try anyhow:
To discuss Lawrence, you can't discuss the result. The important part of that decision is to discuss what the rule of law is that came from it. The majority opinion (5 votes) discussed the issue at stake in that case as something that approximated a fundamental right protected under some nebulous liberty right protected by substantive due process of the Fourteenth Amendment. Yet, while treating the underlying conduct as something that approximates a fundamental right, the majority never applied a strict scrutiny level of analysis that is the standard to be applied when state action impinges on a fundamental right. So it is not clear that strict scrutiny is the standard to be applied. If that issue is back before them and the emphasis is on the strict scrutiny/rational basis issue, such an opinion could arguably be different. O'Connor's concurrence painted perhaps a clearer path for the Court to take on such cases by relying on equal protection grounds. But if that is the analysis that prevails, it would lead to a different result in this dildo case.
posted by dios at 2:22 PM on February 14, 2008
There are complexities to it. First, there is a giant and controversial question as to whether Lawrence proscribed a fundamental rights/strict scrutiny analysis in such cases or a rational basis review (what of the O'Connor concurrence?). Second, the opinion completely punts on the commercial speech issue on ripeness grounds and remands the case. Third, there is a distinction here between personal conduct to be protected under some nebulous right to privacy?/liberty?/substantive due process? and an explicitly public act of advertising them.
Fair enough, the legal issue you are talking about is complex to the extent it implicates an ambiguity in Lawrence. Fine. But the legal issue I'm an talking about is whether it should be legal to use sex toys. The answer is clearly, and unambiguously, yes. If you can use sex toys, it logically follows that it must be legal to acquire them buy some means.
The only reason this is being discussed is because a law that does not represent the majority of Texans view on the subject which contorts the community standards of sex was passed to achieve a complete illegal result. In other words, the purpose of the law restricting sale is to minimize their use, use which is clearly legal. The law of course doesn't say that, but the law is an ass, particularly when the law, including the legislative and appellate process are being abused to achieve results that have absolutely no motivation other than a value preference on the part of legislators.
The Lawrence question is ultimately irrelevant because this law cannot survive under either standard. A different statute that is limited to restricting the display of advertising to certain areas or contexts might trigger a relevant question, but that isn't this case here, so there is no point in arguing the hypothetical. There never will be such a law, because that hypothetical law doesn't achieve the result of preventing women from using these things.
posted by Pastabagel at 2:36 PM on February 14, 2008
Fair enough, the legal issue you are talking about is complex to the extent it implicates an ambiguity in Lawrence. Fine. But the legal issue I'm an talking about is whether it should be legal to use sex toys. The answer is clearly, and unambiguously, yes. If you can use sex toys, it logically follows that it must be legal to acquire them buy some means.
The only reason this is being discussed is because a law that does not represent the majority of Texans view on the subject which contorts the community standards of sex was passed to achieve a complete illegal result. In other words, the purpose of the law restricting sale is to minimize their use, use which is clearly legal. The law of course doesn't say that, but the law is an ass, particularly when the law, including the legislative and appellate process are being abused to achieve results that have absolutely no motivation other than a value preference on the part of legislators.
The Lawrence question is ultimately irrelevant because this law cannot survive under either standard. A different statute that is limited to restricting the display of advertising to certain areas or contexts might trigger a relevant question, but that isn't this case here, so there is no point in arguing the hypothetical. There never will be such a law, because that hypothetical law doesn't achieve the result of preventing women from using these things.
posted by Pastabagel at 2:36 PM on February 14, 2008
I think you are probably right, but only because the "cleverness" in end-running Constitutional rights is more entrench in the 11th Circuit.
That's not an entirely fair reading of the 11th Circuit's holding. Lawrence is an extremely poorly written opinion from a stare decisis standpoint for the reasons I pointed out: it is not explicit whether to apply strict scrutiny and, as such, is a rather narrow ruling (Perhaps that is what Kennedy wanted).
Exercising any right invariably has a commercial dimension.
This is an extremely dense statement that is too much of a broad stroke. You need to define rights, exercising, and commercial dimension. No right is absolute and no right exists that creates an unfettered reciprocal right to transactions to such exercise such rights. There are great numbers of restrictions on both "fundamental rights" and transactions that impact "fundamental rights."
Again, I would like to know why the Texas legislature felt it needed to find a way to limit women's use of dildos. And I'm serious this time.
posted by Pastabagel at 4:15 PM on February 14
Are you really asking? There is not really much of a needed explanation here: it's purely a moral law. Prostitution is illegal on moral grounds. As is gambling. And public nudity. And laws are often made--not to be enforced--but to make moral statements. This is such a nakedly moral law.
posted by dios at 2:38 PM on February 14, 2008
That's not an entirely fair reading of the 11th Circuit's holding. Lawrence is an extremely poorly written opinion from a stare decisis standpoint for the reasons I pointed out: it is not explicit whether to apply strict scrutiny and, as such, is a rather narrow ruling (Perhaps that is what Kennedy wanted).
Exercising any right invariably has a commercial dimension.
This is an extremely dense statement that is too much of a broad stroke. You need to define rights, exercising, and commercial dimension. No right is absolute and no right exists that creates an unfettered reciprocal right to transactions to such exercise such rights. There are great numbers of restrictions on both "fundamental rights" and transactions that impact "fundamental rights."
Again, I would like to know why the Texas legislature felt it needed to find a way to limit women's use of dildos. And I'm serious this time.
posted by Pastabagel at 4:15 PM on February 14
Are you really asking? There is not really much of a needed explanation here: it's purely a moral law. Prostitution is illegal on moral grounds. As is gambling. And public nudity. And laws are often made--not to be enforced--but to make moral statements. This is such a nakedly moral law.
posted by dios at 2:38 PM on February 14, 2008
From the opinion:
The State’s primary justifications for the statute are “morality based.” The asserted interests include “discouraging prurient interests in autonomous sex and the pursuit of sexual gratification unrelated to procreation and prohibiting the commercial sale of sex.”
posted by Armitage Shanks at 2:43 PM on February 14, 2008
The State’s primary justifications for the statute are “morality based.” The asserted interests include “discouraging prurient interests in autonomous sex and the pursuit of sexual gratification unrelated to procreation and prohibiting the commercial sale of sex.”
posted by Armitage Shanks at 2:43 PM on February 14, 2008
Gotta love that video.
"And you can buy this, because generally a penis doesn't have a face, or an animal attached to it..."
Yeah, speak for yourself, buddy.
posted by nanojath at 2:49 PM on February 14, 2008
"And you can buy this, because generally a penis doesn't have a face, or an animal attached to it..."
Yeah, speak for yourself, buddy.
posted by nanojath at 2:49 PM on February 14, 2008
Again, I would like to know why the Texas legislature felt it needed to find a way to limit women's use of dildos. And I'm serious this time.
Pure speculation on my part, but the motivation for the law fits fairly well within the perceived (rightly or wrongly) impetus for so many of these types of laws, namely, punishing women for wanting sex. Same thing with wanting to restrict herpes vaccinations from teenagers, limiting access to birth control, and quite a bit of anti-abortion rhetoric. I think the law is based on insecurity, but not so much due to men's concerns about their size as it is about women being able to decide how they get off and not being under men's control.
posted by LionIndex at 2:51 PM on February 14, 2008
Pure speculation on my part, but the motivation for the law fits fairly well within the perceived (rightly or wrongly) impetus for so many of these types of laws, namely, punishing women for wanting sex. Same thing with wanting to restrict herpes vaccinations from teenagers, limiting access to birth control, and quite a bit of anti-abortion rhetoric. I think the law is based on insecurity, but not so much due to men's concerns about their size as it is about women being able to decide how they get off and not being under men's control.
posted by LionIndex at 2:51 PM on February 14, 2008
Fifth Circuit Says Lawrence Extends to Commercial Transactions
A major circuit split has arisen over so-called ‘sex toy bans.’posted by ericb at 2:56 PM on February 14, 2008
To review: An Alabama statute banning the sale (but not the possession) of sex toys survived a long and arduous challenge in the Eleventh Circuit Court of Appeals.*PDF A key holding in that case was that sexual privacy of the kind guaranteed after Lawrence v. Texas* did not extend to commercial transactions. A ‘right to private consensual sodomy,’ the Eleventh Circuit eventually ruled, does not imply a ‘right to buy or sell a dildo.’
Reviewing a Texas statute imposing essentially the same ban, the Fifth Circuit reaches the exact opposite conclusion:The case is not about public sex. It is not about controlling commerce in sex. It is about controlling what people do in the privacy of their own homes because the State is morally opposed to a certain type of consensual private intimate conduct. This is an insufficient justification for the statute after Lawrence.The court is using a reductio ad absurdum argument: What good is a ‘right to own a sex toy’ if the government makes it impossible, or unduly burdensome, to actually acquire one? The court draws a direct analogy to Griswold v. Connecticut*, the landmark predecessor to Lawrence that held that a ‘right to contraception’ must also imply a ‘right to sell contraception.’
A clear circuit split on a major constitutional question such as substantive due process is an express lane to Supreme Court review. Stay tuned.
Two more hasty stitches:1. The majority expressly rejected Texas' argument that ‘sexual gratification unrelated to procreation’ somehow enjoys less substantive due process protection than ‘morality based’ (i.e., procreative) sex. The read-through to gay marriage bans — which have been repeatedly upheld recently on this specious ‘procreation is different’ rationalization — is clear.
2. Wouldn't it be nice if, rather than perpetually litigating, re-litigating, appealing, re-appealing, circuit-splitting and certiorari-petitioning the question of what the right to privacy (i.e., sexual substantive due process) does and does not mean, we instead recognized the right of property and simply allowed individuals to buy or rent a plot of land, build or rent a store on it, and sell whatever he pleased, at least to competent consenting adults (i.e., economic substantive due process)?”
In related news:
This fact pattern is a bizarre cross between the...bans on true sex toys and the recent Abercrombie & Fitch faux-obscenity prosecution/persecution — which was also based on an ‘accessible by juveniles’ statute. [Mefi thread].
The best defense, other than suggesting a revival of economic substantive due process, would be to challenge the Utah statute as unconstitutionally vague: If a reasonable person cannot tell whether edible underwear is criminally ‘obscene,’ then he cannot be prosecuted for displaying it or selling it to minors.”*posted by ericb at 3:07 PM on February 14, 2008
“Police raided a novelty gift shop inside the Layton Hills Mall, seizing 15 boxes of items they said were sexually explicit. The raid happened Tuesday morning just as Spencer Gifts was opening for business. Police said a search warrant was drafted, seeking numerous items that may violate Utah laws on dealing materials harmful to a minor.While none of the items in the shop are illegal, authorities allege Spencer may have run afoul of the state statute by having sexually explicit items available for purchase and display to minors. Police were vague in their descriptions of the items seized but acknowledged seizing games, food items and items that could be described as ‘sex toys.’
This fact pattern is a bizarre cross between the...bans on true sex toys and the recent Abercrombie & Fitch faux-obscenity prosecution/persecution — which was also based on an ‘accessible by juveniles’ statute. [Mefi thread].
The best defense, other than suggesting a revival of economic substantive due process, would be to challenge the Utah statute as unconstitutionally vague: If a reasonable person cannot tell whether edible underwear is criminally ‘obscene,’ then he cannot be prosecuted for displaying it or selling it to minors.”*posted by ericb at 3:07 PM on February 14, 2008
The majority opinion (5 votes) discussed the issue at stake in that case as something that approximated a fundamental right protected under some nebulous liberty right protected by substantive due process of the Fourteenth Amendment.
I often wonder, given how the spirit of Amendments IX and X pretty much failed (thanks Commerce Clause and federal funding abuse!) how it would have turned out if the argument I quote below had won out, and the courts considered solely what powers the government has and not the rights the people have:
I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? - Alexander Hamilton
That is, in practical terms we seem to operate on the idea that the government can make a law unless it violates a Constitutional right. What if we operated with an interpretation where the government cannot make a law unless the Constitution (possibly not the one we have now) specifically allows for legislation in the area the law concerns?
posted by TheOnlyCoolTim at 3:14 PM on February 14, 2008 [1 favorite]
I often wonder, given how the spirit of Amendments IX and X pretty much failed (thanks Commerce Clause and federal funding abuse!) how it would have turned out if the argument I quote below had won out, and the courts considered solely what powers the government has and not the rights the people have:
I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? - Alexander Hamilton
That is, in practical terms we seem to operate on the idea that the government can make a law unless it violates a Constitutional right. What if we operated with an interpretation where the government cannot make a law unless the Constitution (possibly not the one we have now) specifically allows for legislation in the area the law concerns?
posted by TheOnlyCoolTim at 3:14 PM on February 14, 2008 [1 favorite]
Y'all, I was heading out the door when I posted the FPP. The story in the American-Stateman gives a lot better description of the background of this particular case, although the Chron has more, shall we say, human interest and local color.
The law is actually very seldom enforced. This particular case was instigated by by the adult-business owner hoping to capitalize on Lawrence.
posted by Robert Angelo at 3:24 PM on February 14, 2008
The law is actually very seldom enforced. This particular case was instigated by by the adult-business owner hoping to capitalize on Lawrence.
On the heels of that landmark ruling, Reliable Consultants Inc. sued Travis County District Attorney Ronnie Earle and Texas Attorney General Greg Abbott in 2004 in U.S. District Court in Austin.As far as my non-legal cloudy mind can gather, this case is in the hands Greg Abbott, the state attorney general, and I s'pose he'll decide whether to take this to the entire 5th Circuit. Ronnie Earle is one of the longtime good-guys of Texas politics (just ask Tom Delay). I would imagine that to the the extent Earle's fingerprints touch this at all, he would have wanted to see the law overturned. Austin MeFites can clarify the details if I have this messed up.
They sought a declaratory judgment prohibiting the enforcement of the statute. Reliable Consultants at the time operated adult-oriented stores in Texas including two Dreamers stores and Le Rouge Boutique in Austin. The plaintiffs were later joined by PHE Inc., which operates an online and mail order adult store called Adam and Eve. The plaintiffs were never prosecuted but argued that because of the law their business was hindered and their customers were deprived of buying sex toys.
posted by Robert Angelo at 3:24 PM on February 14, 2008
What if we operated with an interpretation where the government cannot make a law unless the Constitution (possibly not the one we have now) specifically allows for legislation in the area the law concerns?
Lawrence covers this:
In legal terms, though of course IANACL, there are "necessary & proper", "due process", and "undue burden" tests that the Judiciary can apply to laws under its review.
posted by panamax at 3:50 PM on February 14, 2008
Lawrence covers this:
Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.Theoretically, we are a free people who have empowered our Government to protect our liberties. Each of the words in the preceding sentence has meaning.
In legal terms, though of course IANACL, there are "necessary & proper", "due process", and "undue burden" tests that the Judiciary can apply to laws under its review.
posted by panamax at 3:50 PM on February 14, 2008
Thoughts:
TheOnlyCoolTim: While I like the spirit of Hamilton's argument, I have to disagree with its practicality. Giving the legislatures a list of areas in which they can legislate, as opposed to a list of things they cannot do, I feel would lead inevitably to unlimited sweeping powers. Let's say that their fields of legislation include solely levying taxes, appropriating funds, and drafting punishments for criminal matters. That alone (and it'd be difficult to imagine allowing any legislature to do less, would allow them free reign over everything imaginable, with worse results than we have today.
While it isn't perfect, I like the idea of a Bill of Rights, if only because it's the laws that the legislature may not break, in a way. Giving congress a list of the things they can't touch allows for a better recourse against bad laws than rubber-stamping as ok a few things they can do, and then having them stretch those bounds in creative (read: harmful) ways to encapsulate an awkward, but absolute, power.
Next: I loved the video, I miss Molly Ivins terribly. My family started collecting her books back when were were all still calling ourselves Texas Republicans. I think she's a big part of the reason we ended up breaking with the rest of our friends and neighbors. She just always seemed like the type of person who would be your best friend and confidante if you ever got lucky enough to know her. My favorite segment of the video was definitely the clerk who so matter of factly pointed out the dildoes while asserting tat they don't sell dildoes there, jumping through all the hoops as though she almost, but not quite, believed in what she was saying, followed by the perfect punchline: "Oh, those are buttplugs."
Finally, imagine one of the members of the Iraqi Governing Council, as they come to this sort of subject, angrily stating that anyone committing deviant sexual acts in his region would surely be hanged. Now think of the difference when it comes out of the mouth of a Jesus-loving Texas State Senator.
I guess there is, indeed, more that unites us than divides us.
posted by Navelgazer at 4:05 PM on February 14, 2008 [3 favorites]
TheOnlyCoolTim: While I like the spirit of Hamilton's argument, I have to disagree with its practicality. Giving the legislatures a list of areas in which they can legislate, as opposed to a list of things they cannot do, I feel would lead inevitably to unlimited sweeping powers. Let's say that their fields of legislation include solely levying taxes, appropriating funds, and drafting punishments for criminal matters. That alone (and it'd be difficult to imagine allowing any legislature to do less, would allow them free reign over everything imaginable, with worse results than we have today.
While it isn't perfect, I like the idea of a Bill of Rights, if only because it's the laws that the legislature may not break, in a way. Giving congress a list of the things they can't touch allows for a better recourse against bad laws than rubber-stamping as ok a few things they can do, and then having them stretch those bounds in creative (read: harmful) ways to encapsulate an awkward, but absolute, power.
Next: I loved the video, I miss Molly Ivins terribly. My family started collecting her books back when were were all still calling ourselves Texas Republicans. I think she's a big part of the reason we ended up breaking with the rest of our friends and neighbors. She just always seemed like the type of person who would be your best friend and confidante if you ever got lucky enough to know her. My favorite segment of the video was definitely the clerk who so matter of factly pointed out the dildoes while asserting tat they don't sell dildoes there, jumping through all the hoops as though she almost, but not quite, believed in what she was saying, followed by the perfect punchline: "Oh, those are buttplugs."
Finally, imagine one of the members of the Iraqi Governing Council, as they come to this sort of subject, angrily stating that anyone committing deviant sexual acts in his region would surely be hanged. Now think of the difference when it comes out of the mouth of a Jesus-loving Texas State Senator.
I guess there is, indeed, more that unites us than divides us.
posted by Navelgazer at 4:05 PM on February 14, 2008 [3 favorites]
This is such a nakedly moral law.
posted by dios at 5:38 PM on February 14
Okay, so now to take up your point, does it matter whether morality laws (the law itself is not moral) should be reviewed under strict scrutiny or under a rational basis test? There is never a rational basis for a law that has no justification other than a moral choice.
Unlike prostitution, which arguably promotes promiscuity and raises the risk of STD transmission and the exploitation of women, there is not non-moral basis for this law.
Here's my problem with this law, dios, and it explains why I'm being deliberately obstinate and unwilling to get drawn into the debate over what the implications of Lawrence are: the reasons these cases, this one, Lawrence, Griswold, etc keep coming up is because of a recent movement on the right of trying to establish a chain of decisions, to literally create precedent that allows (a) states to legislate sexual mores, and (b) undermine Roe v. Wade. all of these cases are about sex, either in the context of state's creating new laws or state's enforcing anew very old laws that have been ignored and unenforced for centuries.
The cases are absurd in the context of human history. We are being forced to argue under which standard laws designed to restrict the sexual practices of adults in private should be reviewed. There should be no laws. The question is a political one, not a legal one. The court is consistently reluctant to declare sex of any kind between consenting adults as an absolute constitutional right. The Court doesn't want to declare privacy to be a right may be a broader way of framing the issue, but most of the key cases relate to sex. The Court doesn't want to settle this issue once and for all, because the court believes that consensual private sex should be subject to regulation. The justices on the court believe there is a role for government to play in the private lives of their citizens. They dance around the issue because the precedent as it stands doesn't permit it. So they are nitpick the laws that come up as failing for one technicality or another, rather than failing them on the underlying issue.
So the Court is responding positively to the right's attempt to build the precedent that will guide the way for these laws. In other words, if the court swings to the left, you will see more decisions like Lawrence, not fewer, because they will have to work to dismantle or unwind the precedent established over the last 25 years on these issues.
posted by Pastabagel at 4:11 PM on February 14, 2008 [1 favorite]
posted by dios at 5:38 PM on February 14
Okay, so now to take up your point, does it matter whether morality laws (the law itself is not moral) should be reviewed under strict scrutiny or under a rational basis test? There is never a rational basis for a law that has no justification other than a moral choice.
Unlike prostitution, which arguably promotes promiscuity and raises the risk of STD transmission and the exploitation of women, there is not non-moral basis for this law.
Here's my problem with this law, dios, and it explains why I'm being deliberately obstinate and unwilling to get drawn into the debate over what the implications of Lawrence are: the reasons these cases, this one, Lawrence, Griswold, etc keep coming up is because of a recent movement on the right of trying to establish a chain of decisions, to literally create precedent that allows (a) states to legislate sexual mores, and (b) undermine Roe v. Wade. all of these cases are about sex, either in the context of state's creating new laws or state's enforcing anew very old laws that have been ignored and unenforced for centuries.
The cases are absurd in the context of human history. We are being forced to argue under which standard laws designed to restrict the sexual practices of adults in private should be reviewed. There should be no laws. The question is a political one, not a legal one. The court is consistently reluctant to declare sex of any kind between consenting adults as an absolute constitutional right. The Court doesn't want to declare privacy to be a right may be a broader way of framing the issue, but most of the key cases relate to sex. The Court doesn't want to settle this issue once and for all, because the court believes that consensual private sex should be subject to regulation. The justices on the court believe there is a role for government to play in the private lives of their citizens. They dance around the issue because the precedent as it stands doesn't permit it. So they are nitpick the laws that come up as failing for one technicality or another, rather than failing them on the underlying issue.
So the Court is responding positively to the right's attempt to build the precedent that will guide the way for these laws. In other words, if the court swings to the left, you will see more decisions like Lawrence, not fewer, because they will have to work to dismantle or unwind the precedent established over the last 25 years on these issues.
posted by Pastabagel at 4:11 PM on February 14, 2008 [1 favorite]
What I'm getting at is something like if instead of having a Bill of Rights, everything was by default a right and we had a "Bill of Anti-Rights".
Something like (just illustratory examples, I'm not claiming even these as rigorously thought out or comeplete):
-There is no right to kill another person except in self-defense.
-There is no right to take another's posessions by force, except through legislative taxation and judicial fines/rewards.
... and so on...
It seems pretty clear to me, those nice sentiments of Lawrence aside, that the "everything is by default a right" idea isn't held in any practical sense in the current legal system. See dios' comment I quoted where I read his use of the word "nebulous" as implying he thinks there is no constitutional right to gay sex. In this hypothetical alternative I propose, a constitutional right to gay sex is assumed and making a law against it has to be rigorously justified.
posted by TheOnlyCoolTim at 4:19 PM on February 14, 2008
Something like (just illustratory examples, I'm not claiming even these as rigorously thought out or comeplete):
-There is no right to kill another person except in self-defense.
-There is no right to take another's posessions by force, except through legislative taxation and judicial fines/rewards.
... and so on...
It seems pretty clear to me, those nice sentiments of Lawrence aside, that the "everything is by default a right" idea isn't held in any practical sense in the current legal system. See dios' comment I quoted where I read his use of the word "nebulous" as implying he thinks there is no constitutional right to gay sex. In this hypothetical alternative I propose, a constitutional right to gay sex is assumed and making a law against it has to be rigorously justified.
posted by TheOnlyCoolTim at 4:19 PM on February 14, 2008
TheOnlyCoolTim: While I like the spirit of Hamilton's argument, I have to disagree with its practicality. Giving the legislatures a list of areas in which they can legislate, as opposed to a list of things they cannot do, I feel would lead inevitably to unlimited sweeping powers.
It certainly is a possibility, though I don't share your "inevitable" opinion. I just find the idea interesting.
posted by TheOnlyCoolTim at 4:22 PM on February 14, 2008
It certainly is a possibility, though I don't share your "inevitable" opinion. I just find the idea interesting.
posted by TheOnlyCoolTim at 4:22 PM on February 14, 2008
As per the link above this is but one analysis:
"So what will our august Supreme Court...make of the legality of dildo sales and advertisements? [If this issue makes it to the Supreme Court], "...we say it goes 6 to 3 in favor of dildos."posted by ericb at 4:28 PM on February 14, 2008
There is never a rational basis for a law that has no justification other than a moral choice.
Sure there is if you look at the legal "rational basis" test as opposed to making some attempt at suggesting that a "moral law" is not based in reason--which is different than what the "rational basis" test is. It's a legal concept. Not "would Descartes have thought of this."
to literally create precedent that allows (a) states to legislate sexual mores
Which every government since the dawn of civilization has done to varying degrees. There is no reason to create that precedent: it has always existed.
The Court doesn't want to declare privacy to be a right may be a broader way of framing the issue
Because, of course, there is no such right contained within the Constitution. The Court has been hesitant to define and extend a "right to privacy" because Courts have to at least appear to tether their rulings on what the Constitution says. At any given moment the Legislature can pass the next Amendment and put a right to privacy in the Constitution. But it doesn't exist. That doesn't mean you as an individual should never have any expectation of privacy. All it means is that when a Court is engaged in a constitutional evaluation of a law, they have to tether it to something that is in the Constitution as opposed to an undefined right to privacy. This argument is not a political philosophy point about what the rights of man are; rather, it is a discussion about what can a Court do with respect to legislation and their authority to act. It's a separation of powers issue.
The struggle in the Courts ever since Griswald--and it is a struggle between extremely intelligent, principled and well-intentioned individuals irrespective of the attempts of political partisans to push political agendas upon them--has been how to uphold their job as judges and maintain their fealty to the law, while also attempting to address changes in political mores without the assistance of a strong legislature that should be doing the task. The great splits on the Court are purely over how far various judges allow themselves to take on the task.
So they are nitpick the laws that come up as failing for one technicality or another, rather than failing them on the underlying issue.
What they do is fulfill their function as judges. "Nitpicking" and "technicalities" are not evasive tools in the law: they are a requirement of jurisprudence. They have to answer all of these questions before they get to the Big Question that you want them to answer.
I have little doubt that most judges in this country would get rid of the law as stupid if that is what you asked them in their unofficial capacity. But in their official capacity, they have to get deference to the process and to the legislature. And the issue of deference is tied directly to whether it is a strict scrutiny or rational basis review. And if the legislature says that "we believe it is in the best interest of these things not to be sold because they inflame purient interests, promote a sexually charged culture, and lead to the popularity of XXX stores which bring an element that is harmful to our society," the Court under a rational basis review, has to defer to that. It's the same analysis with regards to public nudity and gambling. Under strict scrutiny, the laws would invariably fail. This one, and public nudity, and gambling; they all fail under strict scrutiny. But under rational basis, they do not. Which is why the issue of the holding of Lawrence is important.
posted by dios at 4:36 PM on February 14, 2008
Sure there is if you look at the legal "rational basis" test as opposed to making some attempt at suggesting that a "moral law" is not based in reason--which is different than what the "rational basis" test is. It's a legal concept. Not "would Descartes have thought of this."
to literally create precedent that allows (a) states to legislate sexual mores
Which every government since the dawn of civilization has done to varying degrees. There is no reason to create that precedent: it has always existed.
The Court doesn't want to declare privacy to be a right may be a broader way of framing the issue
Because, of course, there is no such right contained within the Constitution. The Court has been hesitant to define and extend a "right to privacy" because Courts have to at least appear to tether their rulings on what the Constitution says. At any given moment the Legislature can pass the next Amendment and put a right to privacy in the Constitution. But it doesn't exist. That doesn't mean you as an individual should never have any expectation of privacy. All it means is that when a Court is engaged in a constitutional evaluation of a law, they have to tether it to something that is in the Constitution as opposed to an undefined right to privacy. This argument is not a political philosophy point about what the rights of man are; rather, it is a discussion about what can a Court do with respect to legislation and their authority to act. It's a separation of powers issue.
The struggle in the Courts ever since Griswald--and it is a struggle between extremely intelligent, principled and well-intentioned individuals irrespective of the attempts of political partisans to push political agendas upon them--has been how to uphold their job as judges and maintain their fealty to the law, while also attempting to address changes in political mores without the assistance of a strong legislature that should be doing the task. The great splits on the Court are purely over how far various judges allow themselves to take on the task.
So they are nitpick the laws that come up as failing for one technicality or another, rather than failing them on the underlying issue.
What they do is fulfill their function as judges. "Nitpicking" and "technicalities" are not evasive tools in the law: they are a requirement of jurisprudence. They have to answer all of these questions before they get to the Big Question that you want them to answer.
I have little doubt that most judges in this country would get rid of the law as stupid if that is what you asked them in their unofficial capacity. But in their official capacity, they have to get deference to the process and to the legislature. And the issue of deference is tied directly to whether it is a strict scrutiny or rational basis review. And if the legislature says that "we believe it is in the best interest of these things not to be sold because they inflame purient interests, promote a sexually charged culture, and lead to the popularity of XXX stores which bring an element that is harmful to our society," the Court under a rational basis review, has to defer to that. It's the same analysis with regards to public nudity and gambling. Under strict scrutiny, the laws would invariably fail. This one, and public nudity, and gambling; they all fail under strict scrutiny. But under rational basis, they do not. Which is why the issue of the holding of Lawrence is important.
posted by dios at 4:36 PM on February 14, 2008
See dios' comment I quoted where I read his use of the word "nebulous" as implying he thinks there is no constitutional right to gay sex.
Then you grossly misread what I said because I implied nothing of the sort.
posted by dios at 4:39 PM on February 14, 2008
Then you grossly misread what I said because I implied nothing of the sort.
posted by dios at 4:39 PM on February 14, 2008
What if we operated with an interpretation where the government cannot make a law unless the Constitution (possibly not the one we have now) specifically allows for legislation in the area the law concerns?
AFAIK, state law has never functioned like this and states have always had a general police power to make whatever laws they need to that aren't prohibited by their own constitution and/or the federal constitution.
I expect the answer to your question is either "An unworkable polity that changes its constitution within a generation" or "A polity that frequently amends its constitution to allow new legislation and that within a generation has the functional equivalent of a general police power."
posted by ROU_Xenophobe at 4:44 PM on February 14, 2008
AFAIK, state law has never functioned like this and states have always had a general police power to make whatever laws they need to that aren't prohibited by their own constitution and/or the federal constitution.
I expect the answer to your question is either "An unworkable polity that changes its constitution within a generation" or "A polity that frequently amends its constitution to allow new legislation and that within a generation has the functional equivalent of a general police power."
posted by ROU_Xenophobe at 4:44 PM on February 14, 2008
everything was by default a right and we had a "Bill of Anti-Rights".
this is a age-old dispute AFAICT. We have rights. Government has powers.
The bill of rights was intentionally tacked on to the Constitution to remind people that government's powers were limited by inalienable rights, some of these protections explicit, and some implicit in the common law rights of man to be let the fuck alone.
posted by panamax at 4:58 PM on February 14, 2008
this is a age-old dispute AFAICT. We have rights. Government has powers.
The bill of rights was intentionally tacked on to the Constitution to remind people that government's powers were limited by inalienable rights, some of these protections explicit, and some implicit in the common law rights of man to be let the fuck alone.
posted by panamax at 4:58 PM on February 14, 2008
It's the same analysis with regards to public nudity and gambling
There are public vs. private spheres here, and just because something is putatively morally abhorent in the public sphere does not mean the states have the power to restrict it.
Cf. Loving.
posted by panamax at 5:01 PM on February 14, 2008
There are public vs. private spheres here, and just because something is putatively morally abhorent in the public sphere does not mean the states have the power to restrict it.
Cf. Loving.
posted by panamax at 5:01 PM on February 14, 2008
God bless nebulous rights, god bless irrational interpretations of the 14th amendment, and god bless dildos. Today is truly a blessed day! (God bless public nudity too. Maybe that comes next?)
posted by mrgrimm at 5:14 PM on February 14, 2008
posted by mrgrimm at 5:14 PM on February 14, 2008
Then you grossly misread what I said because I implied nothing of the sort.
Alright, that's why I couched it as my reading because I wasn't very sure my reading. What is the nebulous right you mention, then?
posted by TheOnlyCoolTim at 5:25 PM on February 14, 2008
Alright, that's why I couched it as my reading because I wasn't very sure my reading. What is the nebulous right you mention, then?
posted by TheOnlyCoolTim at 5:25 PM on February 14, 2008
dios thanks for explaining why the state has a say in what kind of silicon objects people can have or what they may or may not have up in their stink box. Reading your ideas on the subject makes everything clear as mud. Can I buy a hand gun to go with my cowboy hat? Fuck yes you can. Can I buy a rubber penis? Hmmmm, yes but with grave reservations on the part of the state sir or madame. Defending the legal reasonings here just make you look foolish.
posted by nola at 6:03 PM on February 14, 2008
posted by nola at 6:03 PM on February 14, 2008
Uhm isn't this all storm in tea cupish? I could understand if they outlawed dildo's all together but people are complaining that they can't own more then 6 dildo's.
What kind of wierdo's own more then 6 dildo's anyway?
posted by carfilhiot at 6:05 PM on February 14, 2008
What kind of wierdo's own more then 6 dildo's anyway?
posted by carfilhiot at 6:05 PM on February 14, 2008
The dildo store owns more than six dildos, and if this is supposed to be a free country, who cares if someone wants to own more than six dildos whether they're a dildo store or just a weirdo?
posted by TheOnlyCoolTim at 6:11 PM on February 14, 2008 [1 favorite]
posted by TheOnlyCoolTim at 6:11 PM on February 14, 2008 [1 favorite]
The idea that you can own a hand gun, load that bitch up and with the right paper work walk around in broad daylight with it at the ready, but if we're talking rubber penises whoa hold the phone bettie! I mean really, is this a real legal question, for real? They are parsing and squinting and pulling out dictionaries and calling dios up on the phone to get some his opinions on the finer points, all over rubber cock? It's all just to silly for words. Dude you wrote like 8 paragraphs making some kind of case for all this, come on.
posted by nola at 6:25 PM on February 14, 2008 [1 favorite]
posted by nola at 6:25 PM on February 14, 2008 [1 favorite]
Another article/explanation (with less muddy mumbo-jumbo) for us lay persons:
“The 5th U.S. Circuit Court of Appeals ruled that the Texas law making it illegal to sell or promote obscene devices, punishable by up to two years in jail, violated the Constitution's 14th Amendment on the right to privacy....In its decision Tuesday, the appeals court cited Lawrence and Garner v. Texas, the U.S. Supreme Court's 2003 opinion that struck down bans on consensual sex between gay couples.posted by ericb at 7:11 PM on February 14, 2008
‘Just as in Lawrence, the state here wants to use its laws to enforce a public moral code by restricting private intimate conduct,’ the appeals judges wrote. ‘The case is not about public sex. It is not about controlling commerce in sex. It is about controlling what people do in the privacy of their own homes because the state is morally opposed to a certain type of consensual private intimate conduct. This is an insufficient justification after Lawrence.’
The Texas Attorney General's Office, which represented the Travis County district attorney in the case, has not decided whether to appeal, said agency spokesman Tom Kelley.
Phil Harvey, president of Adam & Eve Inc., said the 5th Circuit Court's decision was a big step forward. He said his business plans to expand to sell in stores and at home parties, something company consultants had been fearful to do because of the Texas law.
‘I think it's wonderful, but it does seem to me that since Texas was one of three states in the country -- along with Mississippi and Alabama -- that continued to outlaw the sale of sex toys and vibrators, that it was probably past time,’ Harvey said Wednesday.
Alabama is in the 11th Circuit. But Mississippi, which also is in the 5th Circuit, essentially will have its ban overturned as well, some legal experts said.
Virginia's law barring obscene items is different from other state laws and does not seem to apply to sex toy sales, said Harvey, whose company distributes nationwide. Louisiana, Kansas, Colorado and Georgia had laws barring obscene devices, but courts have since struck them down.
The 5th Circuit Court's decision is encouraging for Sherri Williams, who has been fighting the issue in Alabama for a decade. Williams, who owns Pleasures stores in Alabama, sued in 1998 after state lawmakers banned the sale of sex toys there. A year ago, she lost her fight again when the U.S. Supreme Court refused to consider a lower court decision upholding the Alabama law as constitutional.
Williams hopes that lawmakers will take notice of the recent Texas case and support a newly filed bill in the Alabama Legislature to overturn the ban on adult toy sales.
‘I think the courts are finally listening to the people,’ Williams said Wednesday. ‘You have 'Sex and the City,' 'Desperate Housewives' and other shows promoting what society is doing. I think the courts have finally opened their eyes and looked around, which is a miracle in the South.’”
What kind of wierdos own more then 6 dildo's anyway?
Those of us who think that she who dies with the most sex toys, wins.
posted by DarlingBri at 9:46 PM on February 14, 2008 [1 favorite]
Those of us who think that she who dies with the most sex toys, wins.
posted by DarlingBri at 9:46 PM on February 14, 2008 [1 favorite]
I think the hate directed at dios in some of the comments is unwarranted. He's attempting -- and doing a rather good job, in my layman's view -- to explain what the legal argument here is actually about.
What I think people are chafing at is that there's a legal argument which is almost but not totally divorced from the political or social argument. Judges and Justices don't have the option of just looking at a law or a ruling and saying "wow, I think that's dumb; let's overturn that crap" and bang the gavel. At least not usually, and not when you're talking about the Supreme Court. They're chained very firmly by both precedent and their own legal theories. I
So while I agree with pretty much everything Pastabagel is saying, and I'd really, really love if the Supreme Court just sat down one afternoon and said "wow, this isn't what the Constitution was going for at all" and threw out everything that's been written since Carolene Products in 1934 (where the whole misguided doctrine of 'presumptive constitutionality,' which is where the "rational basis" and other tests come from, got its start) and took up literalism or a strict rights-maximizing approach [or insert your favorite doctrine here], it just ain't gonna happen.
It sucks, but now we're stuck here. Wondering about what might have been is a bit fruitless; we alive today inherited the problem and at this point the cancer has grown far too deep into our political and social structures to just carve out.
And that's why the legal minutiae is critically important, even when it seems like it's bleeding gallons of ink and reams of paper over what ought to be a straightforward issue, like owning or selling dildos. It's not straightforward and the system is too fucked at this point for it ever to be. Appealing to rationality when discussing Constitutional law is generally a waste of time.
posted by Kadin2048 at 10:46 PM on February 14, 2008 [1 favorite]
What I think people are chafing at is that there's a legal argument which is almost but not totally divorced from the political or social argument. Judges and Justices don't have the option of just looking at a law or a ruling and saying "wow, I think that's dumb; let's overturn that crap" and bang the gavel. At least not usually, and not when you're talking about the Supreme Court. They're chained very firmly by both precedent and their own legal theories. I
So while I agree with pretty much everything Pastabagel is saying, and I'd really, really love if the Supreme Court just sat down one afternoon and said "wow, this isn't what the Constitution was going for at all" and threw out everything that's been written since Carolene Products in 1934 (where the whole misguided doctrine of 'presumptive constitutionality,' which is where the "rational basis" and other tests come from, got its start) and took up literalism or a strict rights-maximizing approach [or insert your favorite doctrine here], it just ain't gonna happen.
It sucks, but now we're stuck here. Wondering about what might have been is a bit fruitless; we alive today inherited the problem and at this point the cancer has grown far too deep into our political and social structures to just carve out.
And that's why the legal minutiae is critically important, even when it seems like it's bleeding gallons of ink and reams of paper over what ought to be a straightforward issue, like owning or selling dildos. It's not straightforward and the system is too fucked at this point for it ever to be. Appealing to rationality when discussing Constitutional law is generally a waste of time.
posted by Kadin2048 at 10:46 PM on February 14, 2008 [1 favorite]
Don't mess with more than six dildoes.
Clean up that trash mouth.
posted by Blazecock Pileon at 12:51 AM on February 15, 2008
Clean up that trash mouth.
posted by Blazecock Pileon at 12:51 AM on February 15, 2008
It's not straightforward and the system is too fucked at this point for it ever to be.
Underlying all the world's seeming paradoxes are obstinate reactionaries too tied to a process to divorce their own (moral) objections, instead going along with the status quo as a cover for their stubborn prudishness.
In this case, there is no paradox — possession of a used dildo almost never involves intent to resell — the answer is entirely straightforward, and worse than that the system is not only simply fucked in the face of rational thought, but that some actually argue for the system to remain fucked in deference to existing and unnecessary intrusions into private behavior.
posted by Blazecock Pileon at 1:14 AM on February 15, 2008
Underlying all the world's seeming paradoxes are obstinate reactionaries too tied to a process to divorce their own (moral) objections, instead going along with the status quo as a cover for their stubborn prudishness.
In this case, there is no paradox — possession of a used dildo almost never involves intent to resell — the answer is entirely straightforward, and worse than that the system is not only simply fucked in the face of rational thought, but that some actually argue for the system to remain fucked in deference to existing and unnecessary intrusions into private behavior.
posted by Blazecock Pileon at 1:14 AM on February 15, 2008
Doesn't Texas have legal beastiality?
*quick google*
Yep, apparently decriminialised in 1974.
YEE-HAW! etc.
posted by longbaugh at 3:05 AM on February 15, 2008
*quick google*
Yep, apparently decriminialised in 1974.
YEE-HAW! etc.
posted by longbaugh at 3:05 AM on February 15, 2008
I never really understood why people dislike Dios so much, but I think I've got a handle on it in this thread.
Dios: I have little doubt that most judges in this country would get rid of the law as stupid if that is what you asked them in their unofficial capacity. But in their official capacity, they have to get deference to the process and to the legislature.
And here we have why your very good posts are so misunderstood and sometimes hated by other commenters. Your comments just about always wear this "official capacity" hat, detailing things that are very important in the actual case, while the commenters just want the "unofficial" opinion vented and out of the way. You, too, Dios, are working on answering all the little questions before you want to get to the Big Question, and people here want to hear you on the Big One.
Mind you, I appreciate very much your work here, and like to read your comments, even when I'm chomping at the bit to get a shot at the Big Questions myself... and I understand the frustration other commenters have with you..
posted by DreamerFi at 3:55 AM on February 15, 2008
Dios: I have little doubt that most judges in this country would get rid of the law as stupid if that is what you asked them in their unofficial capacity. But in their official capacity, they have to get deference to the process and to the legislature.
And here we have why your very good posts are so misunderstood and sometimes hated by other commenters. Your comments just about always wear this "official capacity" hat, detailing things that are very important in the actual case, while the commenters just want the "unofficial" opinion vented and out of the way. You, too, Dios, are working on answering all the little questions before you want to get to the Big Question, and people here want to hear you on the Big One.
Mind you, I appreciate very much your work here, and like to read your comments, even when I'm chomping at the bit to get a shot at the Big Questions myself... and I understand the frustration other commenters have with you..
posted by DreamerFi at 3:55 AM on February 15, 2008
Judges and Justices don't have the option of just looking at a law or a ruling and saying "wow, I think that's dumb; let's overturn that crap" and bang the gavel. At least not usually, and not when you're talking about the Supreme Court. They're chained very firmly by both precedent and their own legal theories.
Actually, most analysis of Supreme Court voting patterns tells us that the Justices mostly/often decide their votes simply on the basis of the policy outcomes they prefer. Presumably the opinions are then the best ex-post justifications that they or their staff can come up with.
In particular, there's not much evidence for adherence to precedent on the Supreme Court. You'll certainly see Justices citing precedent as if they were bound by it, but you won't see Justices who dissented on Case X later adhering to the precedent set by that case. That is, the information we have is consistent with precedent being a rhetorical tool to justify an already-made decision, not an actual constraint on Supreme Court behavior.
posted by ROU_Xenophobe at 6:27 AM on February 15, 2008 [1 favorite]
Actually, most analysis of Supreme Court voting patterns tells us that the Justices mostly/often decide their votes simply on the basis of the policy outcomes they prefer. Presumably the opinions are then the best ex-post justifications that they or their staff can come up with.
In particular, there's not much evidence for adherence to precedent on the Supreme Court. You'll certainly see Justices citing precedent as if they were bound by it, but you won't see Justices who dissented on Case X later adhering to the precedent set by that case. That is, the information we have is consistent with precedent being a rhetorical tool to justify an already-made decision, not an actual constraint on Supreme Court behavior.
posted by ROU_Xenophobe at 6:27 AM on February 15, 2008 [1 favorite]
So while I agree with pretty much everything Pastabagel is saying, and I'd really, really love if the Supreme Court just sat down one afternoon and said "wow, this isn't what the Constitution was going for at all" and threw out everything that's been written since Carolene Products in 1934 (where the whole misguided doctrine of 'presumptive constitutionality,' which is where the "rational basis" and other tests come from, got its start) and took up literalism or a strict rights-maximizing approach [or insert your favorite doctrine here], it just ain't gonna happen.
First of all, I'm not directing any hate or vitriol at dios, so sorry if it comes across that way. We are actually having two different arguments, and he's articulating his argument more clearly than I am mine.
Dios is absolutely right when he describes the context of this case in light of Lawrence (and Griswald and Bower). We are very definitely in the situation where insane laws like this get analyzed under a strict scrutiny or rational basis test depending on how the court views the liberty interest at stake, and furthermore considering that the rational basis in question can be supplied for the first time in the appellate litigation relating to the statute (and in fact in some cases the rational basis is provided out of nowhere by the justices themselves).
My point is simply that this not an organic or natural result of the ongoing interplay between states, the federal government, and the Supreme Court. My feeling is that the cases are being set up and presented in a specific predetermined order to achieve an ultimate end result which is to severly curtail the privacy rights created by the Court prior to and culminating in Roe. The reason why so many of these cases relate to sex and reproductive rights is because it is one political faction that is bringing up these cases. And that is precisely what I think is happening - this political faction is engineering precedent to achieve a given result in a future case that has not yet been brought.
Now the right is hardly innovative in this, and in fact they are following the playbook established by the ACLU and other more liberal rights groups who among other things dismantled segregation and its after effects in the south by carefully bringing certain cases up to the Supreme Court in a certain order to bring the edge of the law closer to where they wanted it to be.
The distinction is that the liberal wing, while equally annoying in its time, was trying to shift the balance of rights between the individual and the state in favor of the individual. The righ is now trying to do the opposite, but they aren't restoring the state of the law, because that law is set. Instead they are building their position on issues where the law is silent - namely sex. There are a lot of other areas where the law is silent, but they are fixated on sex. Another of my points is that it is fascinating to watch this obsession with sex unfold in the courts because it is revealing about where that political faction believes the dynamics between the sexes should like as well as revealing their extraordinarily Freudian psychology.
So the reality is that to fight this trend, you have to take control of it first. no court is going to say "Sex is an absolute right, dummy", unless you legally back them into the corner.
So here's how I propose it be done, assuming that the court does not swing to the left.
1. Identify certain interests or behaviors of people on the right that are not currently protected by established precedent or in the constitution, and through state law, ban it. Religion would be an obvious target, but the first amendment makes it impossible. So I propose that a liberal state ban all physical punishment of children, i.e. outlaw spanking. I can already hear the cries of "trying boys into girls" etc. So I think they'll bite.
2. Identify an ideal target and enforce the law against them. In this context, it would have to be a father in a two-parent home spanking a child on the bottom, i.e. something that very clearly isn't child abuse or some form of battery.
3. Prosecute only under this law, and no other - not abuse, not batter not neglect. One count of violating the no spanking statute.
4. On appeal, present arguments that he state's interest is protecting children and trot out studies showing that psychologically kids do better when they aren't spanked.
5. Force the court into the situation that the only way to strike the law down is on the basis of family privacy, i.e. how we raise our kids as long as it isn't abuse is not the government's business.
If successful, you've forced the conservative court to define broadly a privacy right within the family and household that is not related to sex and is very broad. In other words, you've taken the legal territory on privacy way ahead of where the current trend is because it is still grappling over sex. Now you backfill with goofy statutes prohibiting parents showing kids R-rated movies in their homes, or something, etc (but the test case would involve an R-rated movie with no sex and only morally righteous violence, like a war movie or a western), and you force the court recognize greater and greater privacy rights in the home. Eventually the forward trend and the counter-trend will collide, and that's where the best chance of reversing this caselaw will come.
Unfortunately, this would take decades, and would only have to be done because no one has the political will to call out hte politicians on it, but it will be interesting to see what would happen if Obama becomes president and gets to pick 2-3 judges.
posted by Pastabagel at 7:34 AM on February 15, 2008 [2 favorites]
First of all, I'm not directing any hate or vitriol at dios, so sorry if it comes across that way. We are actually having two different arguments, and he's articulating his argument more clearly than I am mine.
Dios is absolutely right when he describes the context of this case in light of Lawrence (and Griswald and Bower). We are very definitely in the situation where insane laws like this get analyzed under a strict scrutiny or rational basis test depending on how the court views the liberty interest at stake, and furthermore considering that the rational basis in question can be supplied for the first time in the appellate litigation relating to the statute (and in fact in some cases the rational basis is provided out of nowhere by the justices themselves).
My point is simply that this not an organic or natural result of the ongoing interplay between states, the federal government, and the Supreme Court. My feeling is that the cases are being set up and presented in a specific predetermined order to achieve an ultimate end result which is to severly curtail the privacy rights created by the Court prior to and culminating in Roe. The reason why so many of these cases relate to sex and reproductive rights is because it is one political faction that is bringing up these cases. And that is precisely what I think is happening - this political faction is engineering precedent to achieve a given result in a future case that has not yet been brought.
Now the right is hardly innovative in this, and in fact they are following the playbook established by the ACLU and other more liberal rights groups who among other things dismantled segregation and its after effects in the south by carefully bringing certain cases up to the Supreme Court in a certain order to bring the edge of the law closer to where they wanted it to be.
The distinction is that the liberal wing, while equally annoying in its time, was trying to shift the balance of rights between the individual and the state in favor of the individual. The righ is now trying to do the opposite, but they aren't restoring the state of the law, because that law is set. Instead they are building their position on issues where the law is silent - namely sex. There are a lot of other areas where the law is silent, but they are fixated on sex. Another of my points is that it is fascinating to watch this obsession with sex unfold in the courts because it is revealing about where that political faction believes the dynamics between the sexes should like as well as revealing their extraordinarily Freudian psychology.
So the reality is that to fight this trend, you have to take control of it first. no court is going to say "Sex is an absolute right, dummy", unless you legally back them into the corner.
So here's how I propose it be done, assuming that the court does not swing to the left.
1. Identify certain interests or behaviors of people on the right that are not currently protected by established precedent or in the constitution, and through state law, ban it. Religion would be an obvious target, but the first amendment makes it impossible. So I propose that a liberal state ban all physical punishment of children, i.e. outlaw spanking. I can already hear the cries of "trying boys into girls" etc. So I think they'll bite.
2. Identify an ideal target and enforce the law against them. In this context, it would have to be a father in a two-parent home spanking a child on the bottom, i.e. something that very clearly isn't child abuse or some form of battery.
3. Prosecute only under this law, and no other - not abuse, not batter not neglect. One count of violating the no spanking statute.
4. On appeal, present arguments that he state's interest is protecting children and trot out studies showing that psychologically kids do better when they aren't spanked.
5. Force the court into the situation that the only way to strike the law down is on the basis of family privacy, i.e. how we raise our kids as long as it isn't abuse is not the government's business.
If successful, you've forced the conservative court to define broadly a privacy right within the family and household that is not related to sex and is very broad. In other words, you've taken the legal territory on privacy way ahead of where the current trend is because it is still grappling over sex. Now you backfill with goofy statutes prohibiting parents showing kids R-rated movies in their homes, or something, etc (but the test case would involve an R-rated movie with no sex and only morally righteous violence, like a war movie or a western), and you force the court recognize greater and greater privacy rights in the home. Eventually the forward trend and the counter-trend will collide, and that's where the best chance of reversing this caselaw will come.
Unfortunately, this would take decades, and would only have to be done because no one has the political will to call out hte politicians on it, but it will be interesting to see what would happen if Obama becomes president and gets to pick 2-3 judges.
posted by Pastabagel at 7:34 AM on February 15, 2008 [2 favorites]
"What kind of wierdos own more then 6 dildos anyway?"
- My wife and I, who have been together for over twenty years and who pick up a toy or so a year.
- People who are sex therapists.
- People who work in adult stores.
- People who make adult videos.
- People who are unable -- or find it painfully difficult and time-consuming -- to reach orgasm without sex toys.
- Responsible gay males who believe in *VERY* safe sex, or who do not want to pass on HIV to partners.
- Your neighbors who sell adult toys in pleasure parties, like some kind of sexually-liberated Amway gathering.
- Your daughter, who finds the idea of sharing her toys with her new girlfriend to be kinda gross, and a good way to catch HPV.
Let freedom dong!
posted by markkraft at 11:13 AM on February 15, 2008
- My wife and I, who have been together for over twenty years and who pick up a toy or so a year.
- People who are sex therapists.
- People who work in adult stores.
- People who make adult videos.
- People who are unable -- or find it painfully difficult and time-consuming -- to reach orgasm without sex toys.
- Responsible gay males who believe in *VERY* safe sex, or who do not want to pass on HIV to partners.
- Your neighbors who sell adult toys in pleasure parties, like some kind of sexually-liberated Amway gathering.
- Your daughter, who finds the idea of sharing her toys with her new girlfriend to be kinda gross, and a good way to catch HPV.
Let freedom dong!
posted by markkraft at 11:13 AM on February 15, 2008
Pastabagel: I like your approach, and in fact Massachusetts is already in the process of outlawing spanking, but I think it might hit a few snags.
Scalia, while not being Chief Justice (obviously) or the most powerful vote on the court (Kennedy), is still the best writer and arguably most powerful voice on the bench, and doesn't believe in creating and enforcing any unenumerated rights, period. Privacy is first and foremost among what he refuses to acknowledge, and while that may be because of not wanting to acknowledge a right to sex or abortion, he's not going to flip-flop on it. Thomas, though he has started to break with Scalia on occasion in the last few years, still almost always shadows him. And most notably, the Cato Institute, Heritage Foundation, Federalist Society and all the other think-tanks "enlightening" the conservative side of this have taken up the unenumerated rights issue as one of their standards. As long as they consider sex to be a bigger deal than spanking, they'll be willing to bite the bullet, I fear.
Moreover, they could always just swing for a plurality decision, which is probably what they'd do here. Getting a 4-3-2 decision based on "right to privacy," some theory based around children being subject to their guardians, and one wishy-washy opinion avoiding making any real legal point at all would be enough to make the law revert to whichever opinion differs from it the least, and thus have the narrowest effect.
I think our best hope is from an Obama (or Clinton) court. Ginsburg and Souter are most certainly leaving under the next democratic administration, and Breyer and Stevens are likely to retire soon as well. The only problem here is that the pool of potential justices simply doesn't have any great liberal minds to choose from. Bill Clinton made sure he got his judicial nominees through a hostile congress by choosing the most moderate folks he could find, and so that's what's left. Posner and Kozinski are both great minds, and Kozinski are both great minds, but are entirely unpredictable in their views, have pissed everybody off on at least something, and are both white men, which is a problem in it's own, particularly with replacing Ginsburg. Hillary would, of course, be close enough with the potential nominees to know where they stand, and I imagine Obama would make 14th Amendment Due Process arguments for privacy a chief concern, but it's just a kinda weak field. Still, it's the best we've got.
The main problem is that you just can't back the Supreme Court into a judicial corner, because they are the final authority on the law. They could write an opinion stating that there's no right to privacy, but spanking your kids doesn't count, and attribute the authority to Xeno, and that opinion would still stand as THE LAW. Plus, they're generally the deftest legal minds in the country.
I think an idea much like yours could work, with a little tweaking, but as in all things, the devil is in the details. Mostly in the detail of Scalia.
posted by Navelgazer at 12:42 PM on February 15, 2008
Scalia, while not being Chief Justice (obviously) or the most powerful vote on the court (Kennedy), is still the best writer and arguably most powerful voice on the bench, and doesn't believe in creating and enforcing any unenumerated rights, period. Privacy is first and foremost among what he refuses to acknowledge, and while that may be because of not wanting to acknowledge a right to sex or abortion, he's not going to flip-flop on it. Thomas, though he has started to break with Scalia on occasion in the last few years, still almost always shadows him. And most notably, the Cato Institute, Heritage Foundation, Federalist Society and all the other think-tanks "enlightening" the conservative side of this have taken up the unenumerated rights issue as one of their standards. As long as they consider sex to be a bigger deal than spanking, they'll be willing to bite the bullet, I fear.
Moreover, they could always just swing for a plurality decision, which is probably what they'd do here. Getting a 4-3-2 decision based on "right to privacy," some theory based around children being subject to their guardians, and one wishy-washy opinion avoiding making any real legal point at all would be enough to make the law revert to whichever opinion differs from it the least, and thus have the narrowest effect.
I think our best hope is from an Obama (or Clinton) court. Ginsburg and Souter are most certainly leaving under the next democratic administration, and Breyer and Stevens are likely to retire soon as well. The only problem here is that the pool of potential justices simply doesn't have any great liberal minds to choose from. Bill Clinton made sure he got his judicial nominees through a hostile congress by choosing the most moderate folks he could find, and so that's what's left. Posner and Kozinski are both great minds, and Kozinski are both great minds, but are entirely unpredictable in their views, have pissed everybody off on at least something, and are both white men, which is a problem in it's own, particularly with replacing Ginsburg. Hillary would, of course, be close enough with the potential nominees to know where they stand, and I imagine Obama would make 14th Amendment Due Process arguments for privacy a chief concern, but it's just a kinda weak field. Still, it's the best we've got.
The main problem is that you just can't back the Supreme Court into a judicial corner, because they are the final authority on the law. They could write an opinion stating that there's no right to privacy, but spanking your kids doesn't count, and attribute the authority to Xeno, and that opinion would still stand as THE LAW. Plus, they're generally the deftest legal minds in the country.
I think an idea much like yours could work, with a little tweaking, but as in all things, the devil is in the details. Mostly in the detail of Scalia.
posted by Navelgazer at 12:42 PM on February 15, 2008
What I'm getting at is something like if instead of having a Bill of Rights, everything was by default a right and we had a "Bill of Anti-Rights".
Ain't Nobody's Business If You Do.
posted by five fresh fish at 8:11 PM on February 15, 2008
Ain't Nobody's Business If You Do.
posted by five fresh fish at 8:11 PM on February 15, 2008
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posted by Robert Angelo at 12:04 PM on February 14, 2008 [1 favorite]