It touches on the fundamental privacy rights that protect consensual sexual activity among adults, initiated in Griswold, extended in Roe/Casey/Webster, and going back to the 1920s cases giving people a fundamental liberty interest in their families. After Roemer v. Evans and Lawrence v. Texas (equal protection cases rather than due process cases, but highly relevant), I can't see how there can be any sensible distinction to be drawn drawn between a condom and a cock ring, a diaphram or a dildo.
As you know I am way more in agreement with you about judicial restraint than 99% of left wing lawyers, I think Learned Hand and Holmes got it about right, but that also means respect for precedent, and under the lines of cases cited, I can't see any other outcome that is reasonable. Your distinctions won't wash for the reasons satted in my previosu post.
jks
Nathan Newman <nathanne at nathannewman.org> wrote:
----- 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
___________________________________ http://mailman.lbo-talk.org/mailman/listinfo/lbo-talk
--------------------------------- Do you Yahoo!? Yahoo! Mail - 50x more storage than other providers! -------------- next part -------------- An HTML attachment was scrubbed... URL: <../attachments/20040730/b72b3e15/attachment.htm>