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Bashman on the Limits of Lawrence

How Appealing's Howard Bashman's latest column explains that fears Lawrence v. Texas would result in the wholesale invalidation of morals legislation "have proven to be overblown" -- at least thus far. As evidence, Bashman cites the Ohio Supreme Court's Lowe decision I noted last week and a recent decision of the U.S. Court of Appeals for the Eleventh Circuit upholding the state of Alabama's statute restricting the sale of sex toys.

If two recently issued appellate court rulings are any indication, the post-Lawrence fears of those concerned that public morality would no longer remain a valid basis for legislating consensual sexual conduct have proven to be overblown. Instead, these rulings demonstrate that, even where consenting adults are involved, Lawrence has failed to usher in an "anything goes" era, free from governmental interference.

Other cases seem to confirm this (lack of a) post-Lawrence trend. For instance, as some commenters on my prior post noted, the U.S. Court of Appeals for the Seventh Circuit also upheld a state law prohibiting consensual incest between adults in the 2005 decision of Muth v. Frank. Thus, it seems, Lawrence is has having less impact than some of its proponents hoped and critics feared.

Cornellian (mail):
The Alabama statute restricting the sale of sex toys didn't restrict their possession or use, only selling them. Presumably they can't prevent people in Alabama from buying from out-of-state vendors online. Trying to prohibit that would be a negative commerce clause problem. So in other words, the net effect of the statute is to ensure the production and retail jobs associated with those kinds of products will be located somewhere other than Alabama. Interestingly, the statute exempts the sale of "ribbed condoms" from the general rule of prohibition. The mind boggles trying to fathom the mindset of the legislature that goes through the whole product line of sex toys saying "we will allow you to stimulate your genitals with this, but not with that."
3.5.2007 8:53pm
Esquire:
Ironically, I think the Lawrence "doctrine" might actually be *more* defensible if it were made a bit more sweeping, drawing a principled libertarian bright-line -- rather than just singling out one issue for policy-making activism...
3.5.2007 8:57pm
eric (mail):

Ironically, I think the Lawrence "doctrine" might actually be *more* defensible if it were made a bit more sweeping, drawing a principled libertarian bright-line -- rather than just singling out one issue for policy-making activism...


Agreed. Logical consistency is good.
3.5.2007 9:08pm
neilalice:
Add a California case to the non-trend. People v. Scott, (Cal. Ct. App. Feb. 14, 2007) (E039093) holds that consensual -- probably not in fact, but assumed for argument's sake -- father and adult daughter intercourse is still criminal.
3.5.2007 9:25pm
Jacob (mail):
Which Lawrence proponents hoped its impact would involve consensual incest and the sale of sex toys?
3.5.2007 9:29pm
Cornellian (mail):
I guess Scalia can now rest easy that his fear (expressed in his dissent in Lawrence) that the state would no longer be able to prohibit masturbation has not been realized. Boy that must be an, ummm, relief.
3.5.2007 10:24pm
Cornellian (mail):
Agreed. Logical consistency is good. The decision itself draws a pretty logical distinction between the Alambama statute and the situation in Lawrence. The statute didn't prohibit possessing or using sex toys, only the sale of them. Thus it didn't implicate the kind of private activity at issue in Lawrence but instead involved only public, commercial activity. It's not illogical to state that the right to do something does not entail a right to do anything that facilitates the thing you have a right to do.
3.5.2007 10:26pm
Malvolio:
fears Lawrence v. Texas would result in the wholesale invalidation of morals legislation "have proven to be overblown"
"Fears"? More like "hopes".
Logical consistency is good.
Except in this case. Oh, wait...
It's not illogical to state that the right to do something does not entail a right to do anything that facilitates the thing you have a right to do.
It certainly entails a right to do something that facilitates the thing. Assuming arguendo you do have a right under Lawrence to use and possess sex toys, and ignoring any Commerce Clause problems, outlawing both importing and manufacturing such toys (which would constructively prevent possession) would have to be infringing on your rights. On the other hand, you don't (for example) have a right to hold up a liquor store to get money to buy a vibrator. So how do the courts draw a line?

It is my understanding that if there is a state interest on the one side and a fundamental Constitutional right on the other that the standard is "strict scrutiny". By that standard (indeed even by a much looser one) it is hard to see how the Haggermaker decision can be justified. (How does a near-total ban on sex toys advance the cause of public morality at all?)

And the district and appellate courts are clearly dancing between the raindrops here. No one is actually claiming that forbidden activity (selling sex toys) interferes with public morality. Some poor soul, somewhere in deepest darkest Alabama, believes that using a toy would be immoral. But the supposedly immoral act is protected, so the law attacks the facilitating sale. The goal of the law is patently and admittedly unconstitutional under Lawrence and except for reaching that goals, there is no rational basis for the law.
3.5.2007 11:21pm
Malvolio:
Oh, one more thing. If we do agree that it's okay to outlaw an otherwise-unobjectionable public act that facilitates an immoral, but constitutionally protected private act, then Alabama can certainly outlaw gay bars.

Personally, I find the gap between the promise and the performance of Lawrence as disappointing as anything since Lopez. I was hoping for everything Scalia warned us about...
3.5.2007 11:37pm
eric (mail):

The decision itself draws a pretty logical distinction between the Alambama statute and the situation in Lawrence. The statute didn't prohibit possessing or using sex toys, only the sale of them. Thus it didn't implicate the kind of private activity at issue in Lawrence but instead involved only public, commercial activity. It's not illogical to state that the right to do something does not entail a right to do anything that facilitates the thing you have a right to do.


So Alabama could ban walking into an abortion clinic or the purchase of abortion instruments? It's not illogical to state that the right to do something (have an abortion) does not entail a right to do anything that facilitates the thing you have a right to do (walk into an abortion clinic or buy abortion instruments).

Can Connecticut ban birth control? It's not illogical to state that the right to do something (take birth control) does not entail a right to do anything that facilitates the thing you have a right to do (buy birth control).

I think there is a case about that.
3.5.2007 11:58pm
Ramza:

Oh, one more thing. If we do agree that it's okay to outlaw an otherwise-unobjectionable public act that facilitates an immoral, but constitutionally protected private act, then Alabama can certainly outlaw gay bars.

How would you craft such a law that would ban "gay bars" but not other drinking establishments?
3.6.2007 12:22am
Cornellian (mail):
How would you craft such a law that would ban "gay bars" but not other drinking establishments?

I believe the usual approach would be to pass a law prohibiting all bars, but only to enforce it against bars frequented by groups you don't like.
3.6.2007 2:00am
Cornellian (mail):
It is my understanding that if there is a state interest on the one side and a fundamental Constitutional right on the other that the standard is "strict scrutiny". By that standard (indeed even by a much looser one) it is hard to see how the Haggermaker decision can be justified. (How does a near-total ban on sex toys advance the cause of public morality at all?)

I haven't read Lawrence in a long time, but I don't recall it saying that the activity in that situation involved a fundamental right.

And re morality, I believe the state's argument was pure morality. They didn't argue that any particular harm or social ill would result from allowing the sale of sex toys, they just considered them immoral so they banned their sale. Of course this probably has virtually no effect since they would be easily available online. The problem with the "moral" justification is there's no measure for it. It's equivalent to saying "we just think it should be that way" and if that was sufficient for a rational basis test, there would be no rational basis test.
3.6.2007 2:04am
Bill Dyer (mail) (www):
The problem isn't that Lawrence as precedent is likely to compel many decisions that otherwise would go the other way.

The problem is that the logic of Lawrence is still likely to be used as a justification for other sweeping rulings that otherwise would have no justifying precedent at all.

That it hasn't happened yet doesn't mean it won't. But that just means Lawrence is an arrow in the activist jurist's quiver that has yet to be fitted to his bow.
3.6.2007 4:19am
Esquire:
As conservatives have often repsonded to the "you-can't-legislate-morality" claim, isn't *most* legislation essentially normative at its most fundamental level?

After all, somebody could hypothetically disagree with the philosophical value judgment that even "public welfare" or some such notion is "good." And, the state implicitly invokes moral value judgments whenever it defines any sphere of "rights" in practically any context...

So, perhaps a principled, libertarian bright-line might be to just say that the state may never criminalize consensual adult activity of any kind if it doesn't directly impact any non-consenting persons -- but really that's just carving out a *subset* of "moral" issues that can't be regulated.
3.6.2007 8:18am
godfodder (mail):
This case (and the other Lawrence related cases) is ridiculous! Period. Lawrence had the benefit of being logical and seemed to be based on the principle that what adults chose to do in the bedroom was none of the State's interest. Fine. A perfectly legitimate position. So then how in God's name are all these other nonsensical, arbitrary rules Constitutional??

Instead of being a statement of principle, Lawrence looks more and more like a "special" decision reserved for a "special" subgroup of people. What's more (and perhaps more important) we have the situation where there is no way for reasonable people to predict what is legal and what is illegal. Because heartily defended principles today can be tossed overboard tomorrow.

Why does the State care if people use sex toys? What conceivable State interest is there in that? And banning the sale-- but not the use-- is an absurd dodge that wouldn't pass muster in any other arena. ("Why, yes sir! You have a right to bear arms, but nobody has the right to sell you them!" or "Right to free speech? You bet. But... it is illegal for anyone to listen to you! Ha, ha, ha!")
3.6.2007 9:50am
Dick Schweitzer (mail):
The State, The State, The State ....
Why can't we just say the Legislature?
Then we can guess at how "representative" (or pandering) that body is.

We can also begin to reapprise whether Legislation is Law.
Anyone for Hayek?
3.6.2007 3:40pm
Dilan Esper (mail) (www):
The post and the commenters are ignoring another impact of Lawrence, that has been quite profound. It has shifted the debate on gay rights.

At the time of Lawrence, advocacy of full equal marriage rights for gays would have been considered a far left position, as would advocacy of all the substantive civil rights for gays but under a different name than marriage.

Now, civil unions is a centrist position that even some on the right support, and there is growing support for gay marriage. And part of the reason is that Lawrence, by recognizing as a baseline that the state could not criminalize homosexuality, shifted the debate. Other than people who don't believe in it in principle, and a few true homophobes on the right, I don't think too many people would want to overturn Lawrence and reinstate sodomy laws.
3.6.2007 3:43pm
John Herbison (mail):
Another example of the limits of Lawrence can be found in United States v. Extreme Associates. The U. S. District Court in Pittsburgh reasoned that Lawrence "can be reasonably interpreted as holding that public morality is not a legitimate state interest sufficient to justify infringing on adult, private, consensual, sexual conduct even if that conduct is deemed offensive to the general public's sense of morality", 352 F.Supp.2d 578, 592 (W.D Pa. 2005), and held certain federal obscenity statutes to be unconstitutional as applied. The Court of Appeals, Third Circuit, reversed, 431 F.3d 150 (3d Cir. 2005), reasoning that earlier Supreme Court decisions upholding the constitutionality of the challenged statutes were unaffected by Lawrence.
3.6.2007 5:36pm
Birdman2 (mail):
As Godfodder suggesed, when Lawrence was decided the question Scalia and others asked was whether its reasoning, applied in sound, lawyerly fashion, would lead to the parade of horribles they trotted out. Two recent decisions indicate that some courts say Lawrence doesn't lead there. But it is entirely fair to ask whether the reasoning of those decisions is sound and persuasive. I offer no view on that issue, but the mere fact that two courts have pulled up short of the parade of horribles doesn't mean that Scalia was wrong if those courts' reasoning is unpersuasive.
3.7.2007 5:25pm
NickM (mail) (www):
Lawrence may not lead to the overturning of laws against incest, put following the lead of other countries might. According to a recent BBC story on a brother-sister couple challenging Germany's law against incest, France has already abolished its prohibition.
Couple stand by forbidden love
BTW, the most ironic part of the BBC story is that two of their four children have serious medical conditions - just the thing people warn about as a consequence of incestuous relationships.

Nick
3.7.2007 5:50pm
Josh_Jasper (mail):
Dilan Esper



Other than people who don't believe in it in principle, and a few true homophobes on the right, I don't think too many people would want to overturn Lawrence and reinstate sodomy laws.


What, you mean, other than the President of The United States? He is on record as being in favor of them, and was against Lawrence. He keeps appointing justices that would overturn Roe, why not Lawrence?

You don't actually expect any GLBT people to trust him, or anyone who supports his policy on civil rights, do you?
3.9.2007 7:46am