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

Nathan Newman nathanne at nathannewman.org
Fri Jul 30 06:51:37 PDT 2004


----- Original Message ----- From: 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.

Putting words in my mouth, counsel, since to be more specific, the issues at stake in Griswold and the Alabama decision were both regulation of COMMERCE involving items used in relation to sex. Because of the need to control whether one is forced or denied the ability to become a parent, the Supreme Court held that such commerce could not be unduly burdened in the case of Griswold-- although contraception is still "regulated", so "regulation" of commerce is fair game across the board, whatever privacy rights are at stake.

Alabama's decision doesn't regulate any non-commercial activity. Folks are free to use sex toys as they wish. They just can't buy them in Alabama. So the question is whether the right to use sex toys implicates the same fundamental family rights at stake in Griswold. While an argument might be made, in an expansion of Lawrence, that certain kinds of sexuality require additional purchases to achieve fulfillment, but I don't think that even Lawrence, a decision about non-commercial acts in the bedroom, require by extension the government to deregulate all commerce involving anything having to do with sex.

I'm old fashioned-- literally in the legal sense. I don't like courts taking on any power to second-guess legislative decisions involving regulation of commerce in the name of "due process" or any other concerns. Lochner got us full-scale court assaults on progressive legislative regulation of the economy, and we already see "takings" and other rightwing tropes, including "free speech" claims involving Internet commerce, ready to return us to that era of court-enforced deregulation.

Sexuality is a pretty big area-- if all commerce involving it cannot be regulated, that's a big frigging truck for deregulatory court activists to strike down progressive legislation. Are minimum wages at Hooters Bars therefore an illegal enfringement on consensual sexuality, based on your interpretation of how the Alabama decision should have come out?

Nathan Newman



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