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Friday, August 06, 2004
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A SLIGHT BREAK IN THE EMBARGO, or SWEET HOME ALABAMA
A Quick Memo From the Desk of "You've Gotta Be Fucking Kidding."
Okay, I know I said that I'd be away for awhile. Anyhow, I've just been sitting in front of my computer waiting for a fairly important email (that I probably won't get anytime soon, anyway) and staring at the wall, weeping. Then up pops a notice from that, most babealicious of barristers, Sadie.
She had some flash news for me regarding a decision of the 11th Circut Court of Appeals. For those of you unfamiliar with the US federal court system, the 11th circut covers the area of the country where a majority of the citizens have no teeth.
Remember last week, when I wrote about the sex-toy ban in Alabama? Good. Well, the 11th Circut has reached a decision.
Turns out that if you want to fuck yourself, you're....well, fucked.
ALABAMA SEX-TOY BAN UPHELD
11th Circuit Says Lawrence Didn't Create Right to Sexual Privacy
BY STEPHANIE FRANCIS WARD
Alabamans are free to use sex toys, but how they'll get their hands on them is another matter.
A state statute that outlaws the sale of such devices except in medical situations was upheld in the Atlanta-based 11th U.S. Circuit Court of Appeals. The plaintiffs-men and women who either sell or use sex toys–were hopeful that the law would be overturned in light of last summer's U.S. Supreme Court opinion that struck down a Texas law banning same-sex sodomy as an unconstitutional violation of the right to privacy.
At this point, I feel I should interject with something witty and wise. Buy all I came come up with is, "huh?"
You see, I've actually read Lawrence. It seems pretty clear on the matter.
Held: The Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct violates the Due Process Clause. Pp. 3-18.
Does it get clearer? Sure does!
(a) Resolution of this case depends on whether petitioners were free as adults to engage in private conduct in the exercise of their liberty under the Due Process Clause. For this inquiry the Court deems it necessary to reconsider its Bowers holding. The Bowers Court's initial substantive statement--"The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy ... ," 478 U. S., at 190--discloses the Court's failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it said that marriage is just about the right to have sexual intercourse. Although the laws involved in Bowers and here purport to do not more than prohibit a particular sexual act, their penalties and purposes have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. They seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals. The liberty protected by the Constitution allows homosexual persons the right to choose to enter upon relationships in the confines of their homes and their own private lives and still retain their dignity as free persons. Pp. 3-6.
That seems, if one reads closely enough, be a whole lot broader than homo sex, teenagers. On the other hand, I'm still sober and I'm much better at reading these things drunk.
As a matter of fact, for the 11th Circut to limit the scope of Lawrence to homosexuals is more than misreading of the decision, it's a violation of the "equal protection" clause. The 11th circut's decision seems to imply that under Lawrence, gays are the only citizens with a right to sexual privacy. That intrepetation itself is unconstitutional.
If there's any confusion regarding my point, one need only read further into Lawrence.
The Bowers Court was, of course, making the broader point that for centuries there have been powerful voices to condemn homosexual conduct as immoral, but this Court's obligation is to define the liberty of all, not to mandate its own moral code, Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 850. The Nation's laws and traditions in the past half century are most relevant here. They show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex. See County of Sacramento v. Lewis, 523 U. S. 833, 857. Pp. 6-12.
I trust that we're now all on the same page. Back to the article.
Instead, the majority in the Alabama case found the Supreme Court in Lawrence v. Texas never recognized a substantive due process right to sexual privacy. The July 28 opinion overturns a 2002 Northern District of Alabama ruling that found the state law imposed a significant burden on people's sexual privacy because it severely limits their abilities to buy and use sexual devices.
Ummmmm, horseshit. I think what I've excerpted from Lawrence pretty clearly demonstrates that it did recognize "a substantive due process right to sexual privacy." I think the resulting conservative shitstorm from the decision demonstrated it, too. And I have every confidence that the Supremes will agree. Sure, Diana Ross might dissent, but fuck her. Sure, that last joke was cheesy, but I've been dying to use it. Besides, everybody knows Miss Ross has the only vote that matters.
The ruling gets funnier after that.
"If the people of Alabama in time decide that a prohibition on sex toys is misguided or ineffective or just plain silly, they can repeal the law and be finished with the matter," Judge Stanley F. Birch Jr. wrote for the majority. "On the other hand, if we today craft a new fundamental right by which to invalidate the law, we would be bound to give that right full force and effect in all future cases-including, for example, those involving adult incest, prostitution, obscenity and the like." Williams v. Attorney General of Alabama, No. 02-16135.
As I've noted here before, I believe that all of those things should be perfectly legal. So long as there are qualifiers such as, "consenting" and "adult", I could give a shit. Neither should you.
My legal philosophy is pretty simple. The law, perfectly designed, should serve to protect me from you. Not me from me, which should nicely eliminate things like seatbelt and helmet laws, and laws on the prohibition of private, adult consensual sexual conduct and the drug and gambling prohibition. The law is supposed to govern the conduct of individuals in relation to one another, not be everybody's personal Gladys Kravitz. So far as the people of Alabama finding the law "silly", I should hope that Judge Birch is correct. However, I'm not holding out much hope.
The statute is a 1998 amendment to the Alabama obscenity law. It does not outlaw the ownership or use of sex toys, and the devices can be sold to individuals with medical needs.
This may be the most hilarious part of the entire debacle. Someone, elected by the people of Alabama, actually thought and introduced, probably by amendment, that someone in his state might actually die or suffer irrevocable harm......without a butt-plug.
"If a woman is anorgasmic without the use of adult toys, she's going to be hard-pressed to go to a medical doctor with that issue," says Michael L. Fees, a Huntsville lawyer who represents the plaintiffs. "Assuming he encourages her to purchase one, if the sale is illegal, where is she going to get it?"
Good point. And a great concept for a sit-com script, too. If only Seinfeld had the balls to write that!
When the Alabama statute passed, Fees says, it may not have been what the state legislature had in mind. He says the legislature intended to pass a law prohibiting nude dancing and borrowed language from another state's provision. Lawmakers didn't read the bill closely, he says, and were unaware that it also made selling sex devices a crime punishable by up to one year in jail.
You'd be surprised how often that happens. Really, you would!
However, in 2003 the Alabama legislature voted against a bill that would have removed the ban on selling sexual devices.
I guess the Alabama legislature was more concerned about looking absent-minded than they were about looking stupid.
In a statement, Troy King, the Alabama attorney general, expressed a desire that the case end with the recent opinion.
"The legislature passed this act, and it was the duty of the office to defend it in court," he says. "The 11th Circuit has done its duty in upholding the act. We hope this is the end of the matter."
He should have added, "Because I'd really rather not look like a moron in front of important judges in Washington." Which, by the way, he will. I fully expect a group like the ACLU to take this to DC.
Mark Lopez, a New York City lawyer who also represents the plaintiffs, says his clients plan to petition the court for an en banc appeal.
"[Lawrence], in our view, was written in a way that protected the intimate sanctity in the bedroom, and we naturally thought we would benefit from that decision," says Lopez, a staff attorney with the American Civil Liberties Union.
Okay, I'm busted. I didn't read the entire article before I started writing.
A dissent written by Judge Rosemary Barkett agreed with the plaintiffs’ position that Lawrence does give a substantive due process right to sexual privacy.
"This case is not, as the majority's demeaning and dismissive analysis suggests, about sex or sexual devices," she wrote. "It is about the tradition of American citizens from the inception of our democracy to be left alone in the privacy of their bedrooms and personal relationships."
Finally, someone in the mess with some sense.
Now I should interject here that most Southerners het good at pissed off when a state like....say Alabama is constantly used a punch-line by people like me. But anybody who reads this decision should now know why we do it.
More on this case can be read here. The decision in total can be read as a PDF file here. I'll warn you, the language in the decision is hilarious. Never in long life did I ever expect to read the phrase, "vibrators, dildos and anal beads" in a federal court decision.
I encourage you all to read it. But only after your kids go to bed. It turns out the 11th Circut Court of Appeals has a potty-mouth.
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