A big difference, since the distinction between contraception and sex toys is exactly what is at stake in this decision. Many feminists argue that contraception is a fundamental right, that no health care plan should be allowed to exclude coverage, since it is fundamental to controlling one's sexual and personal destiny. Defending contraception and defending abortion and defending the right of anyone to have consensual sex with any other consenting adult is something that is at a high plain of basic individual human dignity.
Do we really want to argue that the right to a sex toy is on an equivalent level of basic human dignity? I don't think so. It's not that I won't make fun of the law and argue for its legislative repeal, but it seems a recipe for discrediting other more fundamental rights to make the right to sex toys a constitutional right.
I think most people, lawyers and non-lawyers, can see the difference between those other fundamental rights and the right to sex toys, so it is no affront to precendent for the 11th Circuit to uphold the Alabama law, however stupid a law it is.
Also, "BklynMagus" argued:
>Well, isn't that what the coursts are there for? To second-guess, i.e.,
correct,
>sexphobic, homophobic and other oppressive legislative actions?
Depends on your viewpoint. I think courts are generally there to oppress people and overturn progressive legislation, destroy Reconstruction, delay New Deal reforms, and gut affirmative action laws.
Without rehashing the arguements, see http://www.nathannewman.org/other/ImpeachSC.html for my basic viewpoint. But let me respond to this:
>I think the left should be sophisticated enough to distinguish between
areas
>which should be regulated and those which should not be, and,
subsequently,
>craft effective arguments in defense of both positions.
If you think the courts are about "effective arguments", you haven't been paying attention as Reagan and the Bush's have stacked the courts with rightwing judges. The problem with courts is that no amount of effective organizing or arguments matter if a judge wants to overturn a law they don't like. As Bush v. Gore showed, in the end, it's about a 5-4 majority (or whatever on a particular court) using its power to override the decisions of the population as a whole.
The reason I oppose Griswold, Roe and Lawrence is that I think they were mostly irrelevant-- contraceptive rights, abortion rights and gay rights had advanced so far by those court decisions that they were hardly radical advances. But they help give the illusion of courts actually being effective allies of progressives, thereby giving ideological license to their more pervasive rightwing, anti-progressive role in our history.
Courts have been the most reactionary and most destructive institution for progressive goals over American history. So the more courts say they should defer to the elected branches, the better.
Nathan
andie nachgeborenen wrote:
>This is gonna get esoteric, but the commerce clause issue is a red
>herring. The 11th Cir case also involves state regulation of sale of
>sex toys, and is on all fours with Griswold, which involved state
>reg of sales of sex toys. I never said and wouldn't argue for a
>narrow reading of the commerce clause, which I think is a broad
>grant of Congressional power, and of course I agree that outside of
>the individual rights area, the states have virtually plenary powers
>to engage in social and economic regulation. But this, like
>Griswold, is an individual rights case.
>
>It touches on the fundamental privacy rights that protect consensual
>sexual activity among adults, initiated in Gr! iswold, 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.
>
>
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