[lbo-talk] Sexuality Under Seige or So What Else is New?

[andie nachgeborenen]

So, Nathan, on your reasoning, the government can regulate sexual conduct of post-menopausal women, women with hysterectomies, and men with vasectomies, since their sexual actibity is not related to childbearing, and it can also regulate masturbation and indeed loveless sex that does not involve an enduring bond with another person. Frankly, counsel, I don't buy it. I believe in narrow constriction, but I think the proper narrow construction of the sexual privacy cases is that consensual sexual activities among adults are protected, regardless of whether they involve childbearing or enduring bonds. One reason the right is cast inb term of privacy is to protect the citizens from the government in inquiring into matters that are none of its business. Your reasoning eviscerates the right as a privacy right, makes it a right to form enduring bonds and have or not have children, subject to public inspection of your purposes and intention in performing certain activities.

 
I'll add that it reflect a certain paucity of the sexual imagination to suppose that the use of sex toys is necessarily a solitary activity that is normally unrelated to possible childbreaing or bond-forming activities. Do you want the govt to be inquing inmto what people mean to do with that vibrator?

Nathan Newman <nathanne at nathannewman.org> wrote:
Okay, as someone who thinks Griswold was wrongly decided-- Hugo Black
dissented arguing that the law was silly but not up to the courts to strike
down-- it's still pretty easy to distinguish Griswold/Roe from a ban on
selling vibrators.

If you treat the "right to privacy" as some sort of blanket protection of
anything that goes on in the home, then it is an elastic right without end,
since anything for use in the home could then not be regulated. But
Griswold/Roe were seen as far more tied to control of sexuality and whether
to have children and was a right that predated Griswold. See Skinner v.
Oklahoma, 316 U.S. 535 (1942), which argued that sterilization was not a
legal punishment.

Lawrence more recently went beyond the reproduction aspect of this
principle, but still focused on the fundamental liberty of association with
the person one loves, "When sexuality finds overt expression in intimate
conduct with another person, the conduct can be but one element in a
personal bond that is more enduring" in Justice Kennedy's words.

It's seriously hard to argue that one's relationship with a vibrator is a
fundamental bond of association akin to the interpersonal bonds highlighted
in these earlier decisions.

If a ban on vibrators was struck down, could rapid NRA folks argue that
their personal relationship with their AK-47 made an assault weapons ban
illegal? Could drug addicts argue that all drug laws were illegal because
of their intimate relationship with mind alteration?

Now, the ban on sex toys is stupid and the law should be repealed. Notably,
the law bans sale of the toys, not possession, so the upshot of the
decision is more mail order purchases of such items in Alabama.

Nathan

----- Original Message ----- 
From: andie nachgeborenen
To: lbo-talk at lbo-talk.org
Sent: Thursday, July 29, 2004 4:43 PM
Subject: Re: [lbo-talk] Sexuality Under Seige or So What Else is New?

I hate to be a one note Johnny, but would you explain to me why
contraceptives are constitutionally protected by the provacy rights under
the due process clause, but vibrators are not? If we had a blank slate, no
Griswold, no Roe, no cases granting praviacy rights in sexual matters,
maybe you would be right, but we don't. The 11th Cir, flies in the face of
clear and long established constitutional law.

Jordan Hayes wrote:
>> "I'm just very disappointed that courts feel Alabamians don't
>> have the right to purchase adult toys. It's just ludicrous,"
>> said Williams, who lives in Florida ...

I guess it doesn't sound to me like that's what the court said; they
seemed to imply that they thought the law was silly, but that striking
it down via a constitutional challenge wasn't gonna cut it. Which I
guess I'm okay with.

It's really the legislature that feels that Alabamians don't have the
right to purchase adult toys, right?

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