<DIV>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. </DIV> <DIV> </DIV> <DIV>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. </DIV> <DIV> </DIV> <DIV>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.</DIV> <DIV> </DIV> <DIV>jks</DIV> <DIV> </DIV> <DIV> </DIV> <DIV><BR><B><I>Nathan Newman <nathanne@nathannewman.org></I></B> wrote:</DIV> <BLOCKQUOTE class=replbq style="PADDING-LEFT: 5px; MARGIN-LEFT: 5px; BORDER-LEFT: #1010ff 2px solid">----- Original Message ----- <BR>From: andie nachgeborenen<BR>>So, Nathan, on your reasoning, the government can regulate sexual<BR>>conduct of post-menopausal women, women with hysterectomies,<BR>>and men with vasectomies, since their sexual actibity is not related to<BR>>childbearing, and it can also regulate masturbation and indeed loveless<BR>>sex that does not involve an enduring bond with another person.<BR>>Frankly, counsel, I don't buy it.<BR><BR>Putting words in my mouth, counsel, since to be more specific, the issues<BR>at stake in Griswold and the Alabama decision were both regulation of<BR>COMMERCE involving items used in relation to sex. Because of the need to<BR>control whether one is forced or denied the ability to become a parent, the<BR>Supreme Court held that such commerce could not be unduly burdened in the<BR>case of Griswold-- although contraception is still "regulated", so<BR>"regulation" of commerce is fair game across the board, whatever privacy<BR>rights are at stake.<BR><BR>Alabama's decision doesn't regulate any non-commercial activity. Folks are<BR>free to use sex toys as they wish. They just can't buy them in Alabama.<BR>So the question is whether the right to use sex toys implicates the same<BR>fundamental family rights at stake in Griswold. While an argument might be<BR>made, in an expansion of Lawrence, that certain kinds of sexuality require<BR>additional purchases to achieve fulfillment, but I don't think that even<BR>Lawrence, a decision about non-commercial acts in the bedroom, require by<BR>extension the government to deregulate all commerce involving anything<BR>having to do with sex.<BR><BR>I'm old fashioned-- literally in the legal sense. I don't like courts<BR>taking on any power to second-guess legislative decisions involving<BR>regulation of commerce in the name of "due process" or any other concerns.<BR>Lochner got us full-scale court assaults on progressive legislative<BR>regulation of the economy, and we already see "takings" and other rightwing<BR>tropes, including "free speech" claims involving Internet commerce, ready<BR>to return us to that era of court-enforced deregulation.<BR><BR>Sexuality is a pretty big area-- if all commerce involving it cannot be<BR>regulated, that's a big frigging truck for deregulatory court activists to<BR>strike down progressive legislation. Are minimum wages at Hooters Bars<BR>therefore an illegal enfringement on consensual sexuality, based on your<BR>interpretation of how the Alabama decision should have come out?<BR><BR>Nathan Newman<BR><BR>___________________________________<BR>http://mailman.lbo-talk.org/mailman/listinfo/lbo-talk<BR></BLOCKQUOTE><p> <hr size=1>Do you Yahoo!?<br> <a href="http://us.rd.yahoo.com/mail_us/taglines/50x/*http://promotions.yahoo.com/new_mail/static/efficiency.html">Yahoo! Mail</a> - 50x more storage than other providers!