Is Sexual Freedom is a Constitutional Right?
5/17/2008 Is Sexual
Freedom is a Constitutional Right?
Is gay marriage ?
Canadian (similar to most of world) Rights vs. U.S. Rights in our Constitutions
Are adult in private sexual and gay rights supported in the Constitution and
confirmed in the Declaration of Independence (right to life, liberty and the
pursuit of happiness)?
Constructionist judges like Bush/McCain supports have the legal philosophy of judicial
interpretation that limits or restricts judicial interpretation. It requires a
judge to apply the text as it was ratified in 1787 and no further. The Constitution does
not explicitly say we have sexual freedoms nor that gays can marry. Therefore
there is no such right says the Bush/McCain/Conservative types.
The California Supreme Court says under their similar State Constitution there
is a gay right to marriage under the due process clause (similar to
that in the U.S. Constitution). Since this upsets conservatives, many want a
Constitutional Amendment to specifically deny marriage rights to gays/lesbians.
In their twisted minds somehow this hurts heterosexual marriage - I have never
understood how.
A majority of the pre-Bush Supreme Court ruled in Lawrence vs. Texas that we do
have sexual freedoms, laws can not be based on morality and private consenting
adult sexuality (at least anal sex in this specific case) is a Constitutional
right, even though it is not specifically addressed in the Constitution.
To me this is a huge political issue of individual freedoms implied in the
Constitution vs. specifically stated. In general Republicans or "conservatives"
such as Bush/McCain want to be sure we have no such rights since they are not
specifically mentioned in the Constitution.
Other countries (my favorite example Canada) have more individual freedoms or
their similar Constitutions are widely accepted as covering them. The Canadian
Charter of Rights and Freedoms (their bill of rights
entrenched in the Constitution of Canada) doesn't talk about prostitution of
gay issues. But it has been interrupted that private consenting outcall adult
prostitution is a legitimate individual right in Canada as it is in
most other countries. The gay marriage issue is still being debated as to
whether it is a right or not.
Fundamental justice (in section 7 of the Canadian Charter) is interpreted to
include more legal protections than due process, which is its US equivalent.
Freedom of expression in section 2 also has a more wide-ranging scope than the
First Amendment to the United States Constitution's freedom of speech.
In general, Canadian courts have embraced a purposive interpretation of Charter
rights. This means they have concentrated not on the traditional, limited
understanding of what each right meant when the Charter was adopted in 1982, but
rather on changing the scope of rights as appropriate to fit their broader
purpose. This is tied to the generous interpretation of rights, as the purpose
of the Charter provisions is assumed to be to increase rights and freedoms of
people in a variety of circumstances, at the expense of the government powers.
In the U.S. most Republicans/Bush/McCain types attack this as bad judicial
activism - our Constitution should only be based on the specific rights granted
in 1787 and not be applied to more modern broader issues.
Further
Discussion
I posted this on the Woodhullfoundation discussion board where I've been active
and it generated some good discussion such as from Ricci Levi, , Executive
Director, The Woodhull Freedom Foundation:
Please feel free to repost and share my response with those to whom you think
this discussion would be of interest. If you do so, please either cut out Dave's
comments (below mine) or obtain his permission to share his post (I give
permission).
This mission of Woodhull is to affirm sexual freedom as a fundamental human
right.
When affirming Sexual Freedom as a Fundamental Human Right the following points
control:
1. When the Supreme Court says something is a fundamental human
right it is. It matters not what the opinion is of those who disagree. Until the
Court is persuaded to change its opinion its word is the final one on the
question. When the current Supreme Court rules, as all expect it will, that the
2nd amendment protects a fundamental right of an individual to own guns that
will be the final word unless and until the court (whoever appoints it) changes
that opinion. With regard to sexual freedom as a fundamental human right
Lawrence rules until reversed. In the United States Sexual Freedom is a
fundamental Human Right.
2. Some of the points made by the court’s six to three Lawrence opinion
underscore the scope of the case. Here are some of them—
“ These matters, involving the most intimate and personal choices a person may
make in a lifetime, choices central to personal dignity and autonomy, are
central to the liberty protected by the Fourteenth Amendment. At the heart of
liberty is the right to define one’s own concept of existence, of meaning, of
the universe, and of the mystery of human life. Beliefs about these matters
could not define the attributes of personhood were they formed under compulsion
of the State.”
And…
“Our prior cases make two propositions abundantly clear. First, the fact that
the governing majority in a State has traditionally viewed a particular practice
as immoral is not a sufficient reason for upholding a law prohibiting the
practice; neither history nor tradition could save a law prohibiting
miscegenation from constitutional attack. Second, individual decisions by
married persons, concerning the intimacies of their physical relationship, even
when not intended to produce offspring, are a form of “liberty” protected by the
Due Process Clause of the Fourteenth Amendment. Moreover, this protection
extends to intimate choices by unmarried as well as married persons.” 478 U.S.,
at 216 (footnotes and citations omitted).
And…
The present case does not involve minors. It does not involve persons who might
be injured or coerced or who are situated in relationships where consent might
not easily be refused. It does not involve public conduct or prostitution. It
does not involve whether the government must give formal recognition to any
relationship that homosexual persons seek to enter. The case does involve two
adults who, with full and mutual consent from each other, engaged in sexual
practices common to a homosexual lifestyle. The petitioners are entitled to
respect for their private lives. The State cannot demean their existence or
control their destiny by making their private sexual conduct a crime. Their
right to liberty under the Due Process Clause gives them the full right to
engage in their conduct without intervention of the government. “It is a promise
of the Constitution that there is a realm of personal liberty which the
government may not enter.” Casey, supra, at 847. The Texas statute furthers no
legitimate state interest which can justify its intrusion into the personal and
private life of the individual.
And…
The European Court of Human Rights has followed not Bowers but its own decision
in Dudgeon v. United Kingdom. See P. G. & J. H. v. United Kingdom, App. No.
00044787/98, ¶56 (Eur. Ct. H. R., Sept. 25, 2001); Modinos v. Cyprus, 259 Eur.
Ct. H. R. (1993); Norris v. Ireland, 142 Eur. Ct. H. R. (1988). Other nations,
too, have taken action consistent with an affirmation of the protected right of
homosexual adults to engage in intimate, consensual conduct. See Brief for Mary
Robinson et al. as Amici Curiae 11—12. The right the petitioners seek in this
case has been accepted as an integral part of human freedom in many other
countries. There has been no showing that in this country the governmental
interest in circumscribing personal choice is somehow more legitimate or urgent.
3. Next we should be clear about the actual realties that are at the heart of
our constitutional system. It is true that Some Republicans or "conservatives"
such as Bush/McCain deny the existence of such rights since they are not
specifically mentioned in the Constitution. But this argument misstates the
nature of our constitutional system. The failure for a right to be mentioned in
the Constitution has no bearing on whether it exists or not and the constitution
itself is explicit on this point.
It is a mistake to give into the kind of ignorance that attempts to limit human
rights to those enumerated in the constitution. Saying, for example, that there
are individual freedoms implied in the Constitution vs. rights specifically
stated is misleading. The constitution is explicit about all rights. Here is how
the structure of the American Constitutional system works.
When the British Colonies in American declared themselves to be the Independent
United States of America they said “We hold these truths to be self evident that
all men are created equal and they are endowed by their Creator with certain
unalienable Rights, that among these are Life, Liberty and the pursuit of
Happiness—”
The rights are self evident, they are inalienable and that three of the many
rights that exist (among the total number that is larger than three) are life,
liberty and pursuit of happiness. The fact that individuals have more rights
than those enumerated in the Constitution is made explicit in the last two
articles of The Bill Of Rights.
These amendments codify the intrinsic nature of human rights—rights that accrue
to individuals by virtue of their creation/birth. These amendment say:::
Amendment IX
The enumeration in the Constitution, of certain rights, shall not be construed
to deny or disparage others retained by the people.
Amendment X
The powers not delegated to the United States by the Constitution, nor
prohibited by it to the states, are reserved to the states respectively, or to
the people.
The point is that it is a self evident truth that all people are created with
certain inalienable rights, that three of these rights are life, liberty and the
pursuit of happiness, and that equally clearly other fundamental human rights
exist within the system being described. The ninth and tenth amendment of the
Constitution make blatantly explicit the point assumed in the Declaration of
Independence. The Lawrence opinion, derived from Griswold (1965), Loving (1968),
Roe v Wade (1973) and overturning Bowers (1986) makes explicit that sexual
freedom is a fundamental human right.
Our culture is making explicit the intrinsic reality that sexual freedom is a
fundamental human right. As the court says, “At the heart of liberty is the
right to define one’s own concept of existence, of meaning, of the universe, and
of the mystery of human life. Beliefs about these matters could not define the
attributes of personhood were they formed under compulsion of the State.” If the
state rather than the individual controls sexual freedom it controls the
fundamental attributes of personhood. It is this argument that we must
continuously repeat—adult individuals, not the state, have the right and the
responsibility to make all decision about sexuality. We must repeat continuously
what the court has said. Allowing the state to intervene in the area of
sexuality threatens society itself.
Ricci
Highlights of other comments:
... as much as I am in sympathy with your idea and agree with
your constructions about common law, I think that the term "Judicial Activism"
has been so defined by the ignorant right in a bad way that it would take a long
time to resurrect it. Like the Death Tax, a construction that goes back to he
Roman Empire, it has been used to distract people from the very activist agenda
that these so called constructivist judges are espousing. I am tempted to
suggest that we call the judges that we want in the courts, Living Judges, as in
the Living Constitution and calling the conservative judges, Dead Judges, as in
the dead Constitution that doesn't change with the culture, but that seems a bit
esoteric for sound bite politics.
I like the idea of citing the Constitution as a living document. And your
approach is similar to countering "abstinence-only" with "real sex ed".
Perhaps a better dyad of terms would be "judicial independence" versus "judicial
partisanship", with the Right-wing "constructionists" in fact being partisans
who have surrendered their independence to an ideological mandate.
---
We need to be mindful of the fact, and remind our opponents, that under the
common law system which we inherited from England, judges can indeed create new
law.
Prior to 1154, England did not have a unified legal or judicial system; county
courts ruled according to local custom. Henry II made two reforms to this
system: (a) he brought judges together to compare notes and determine what
constitutes crimes and punishments "common" to the country, and (b) he
reinstated trial by jury as a way of drawing on community knowledge in rendering
legal decisions.
Constitutional law, legislative statute and equity would make the legal and
judicial system of England (later Britain) more complex, but the principle of
precedent -- that judicial decisions must be consistent with prior decisions --
was still maintained. This was not only inherited in the newly created United
States, but actually written into the constitutions of several states such as
New York.
(The only exception to this is Louisiana, which inherited its civil law code
from the time of French rule. However, common law decisions esp regarding
Federal case law have influenced the evolution of Louisiana law.)
When those who complain about "activist" judges declare that courts should not
be making law, they are ignoring eight and a half centuries of legal history.
Our common law system of precedent has indeed allowed for judges to make new
law, within prescribed boundaries. If not, then the very freedom of expression
and dissent which these very same Right-wingers enjoy would not in fact exist.
D.R.
---
--- Dave in Phoenix <dave@davephx.com> wrote:
> Constructionist judges like Bush/McCain supports
> have the legal philosophy of judicial interpretation
> that limits or restricts judicial interpretation. It
> requires a judge to apply the text as it was
> ratified in 1787 and no further. The Constitution
> does not explicitly say we have sexual freedoms nor
> that gays can marry. Therefore there is no such
> right says the Bush/McCain/Conservative types.
Where these judges are missing the point is that they don't understand the
originalist reasons that the courts were created in the first place, as then
modified by Chief Justice Marshall in the early 19th Cent. and later by the post
Civil War Amendments. This is stuff I learned in High School, so the fact that
people like Justice Scalia don't understand it shows that what the are really
about is putting the US back into the moral straighjacket of the Victorian and
post-Victorian world.
The courts exist to protect the inalienable rights of minorities, not to protect
and affirm the rights of majorities, which have the legislative branch for that.
Until we get back to this idea, that there are inalienable rights, not just
rights written into the constitution or legislated into law, then we are going
to be having these fights with those who want to put us back in the closet, or
worse.
Rick Umbaugh
---
Dave notes:
Victoria Woodhull was the out-spoken, “racy” activist who introduced
sex-positivist values to America during the Victorian era. She believed that
both men and women had a right to “free love" without government or public
intervention. Throughout the 1870s, she lectured and published, arguing against
society’s sexual double standard. Woodhull advocated sexual satisfaction and
love for all, legal prostitution, the right to multiple partners, and supported
people’s abilities to make their own decisions about consensual sexual
activities.
"To those who denounce me, I reply: Yes I am a free lover. I have an
inalienable, constitutional and natural right to love whom I may, to love as
long or as short a period as I can; to change that love every day if I please."
- Victoria Woodhull
They have a great website, discussions of the Texas law, and a FREE 84 page
manual that can be downloaded: "Advocacy for Sexual Freedom: A Practical Guide
to Creating and Leading Issue Advocacy Campaigns"
Judy Guerin, Co-Director I have met in Phoenix a few years ago when she was with
another Free Speech coalition group trying to help the Phoenix swing clubs. She
resigned shortly after however to help found the Woodhull Freedom Foundation.
Their great website:
http://www.woodhullfoundation.org