Comments: Supreme Court Decision on Privacy Rights of Adult Sexuality

There has been a lot of discussion about if this is a ray of hope for sexworkers rights.

The religious bigots say how horrible giving gays the right to be themselves and to sexual privacy. And, oh my gosh, " will open the doors for prostitution, bigamy, polygamy, incest and adultery." But one Justice in his majority comments said, ""This case does not involve minors, persons who might be injured or coerced, those who might not easily refuse consent, or public conduct or prostitution. It does involve two adults who, with full and mutual consent, engaged in sexual practices common to a homosexual lifestyle."

I have never understood what the homosexual "lifestyle" is no more than the heterosexual "lifestyle". Our sexual orientation is not a choice (unless bisexual where you have an option either way since attracted to both same and opposite sex), so the silly "lifestyle" term is based on ignorance just as the Christian anit-gay traditions are based on biblical ignorance.

Back to sexwork issues. Scalia, in his dissent, stated that the decision does in fact throw laws against prostitution (as well as other consensual private acts between adults) into question. An amazing statement for a dissent and one upon which a challenge of sexwork laws may be based. But there is also a statement in Thomas' dissent that mentions "noncommercial" though it's not made a significant issue.

Aside from a pure legal challenge, this decision also provides a platform for civil liberties / privacy leaning legislators to toss out anti-prostitution and other laws based on an argument that these laws are now in question.

"The petitioners are entitled to respect for their private lives," Justice Anthony Kennedy wrote for the court's majority. "The state cannot demean their existence or control their destiny by making their private sexual conduct a crime."

I would argue that in a commercial sexwork connection, it is even more a freedom of commercial choice, to pay for and be engaged in a business between consenting adults and it is an unfair restraint of trade to impose morality over free enterprise business choices.

But historically our societies morality has been imposed by law. The religious zealots can't get folks to follow their anti-sex views voluntarily so out of their own frustration they have sought to impose their repressive, unbiblical views on others by passing morality laws, such as sexwork and adult entertainment laws. And they are well organized and have been mostly successful. The only hope lies in the Supreme Court upholding our Constitutional rights. Legislators are mostly controlled by the religious right so we can't look to them to change the laws, only the Supreme Court to uphold our rights to privacy and our "pursuit of happiness as declared by Thomas Jefferson. So its the ongoing battle of whose morality vs the right to privacy, enjoyment and commercial freedoms by consenting adults which is legal in most of the world except the U.S.

In 1986, the Supreme Court in ... Bowers v. Hardwick said no, the right to privacy does not include the right to have sexual relations in the privacy of your own home. That was a 5-4 decision, bitterly contested at the time. It has now been overruled by this decision. The right to privacy marches on, even though, ironically, interestingly, this Supreme Court is in many respects more conservative than the one in 1986. In George Will's article (discussed below) related to the 1986 decision said, "And one justice in that majority, Lewis Powell, later said he regretted his vote."

Justice Anthony Kennedy, writing for the majority said: "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."

CNN Legal analyst Kendall Coffey said, "This means that for morality to be used as a basis to discriminate against a group that the legislature disfavors for some reason, there needs to be more than invoking the name of morality. You have to show some legitimate purpose, some societal harm that is implicated by the conduct that the state is seeking to outlaw."

George Will of the Washington Post's wrote an article "It's now clear: Lap dancing is a basic right." Referring to the proposed six foot strip club rule in Las Angeles says, "lap dancing - like prostitution, for that matter - looks like a fundamental constitutional right."

George Will continues, "Thursday the court held that Texas' law 'furthers no legitimate state interest' which can justify abridging the privacy right of consensual adult homosexual activity. The logic of the court's ruling, which the court flinches from recognizing, is that no legitimate state interest is served by ANY law for the promotion of a majority's convictions about sexual morality.

The question is not whether states are wise to criminalize this or that sex act outside of marriage. Rather, the question is: Once the court has said that some such acts are constitutional rights, by what principle are ANY of the myriad possible permutations of consensual adult sexual activities denied the same standing?

Once consent - 'choice' - supplants marriage as the important interest served by clocking sexual activities as constitutional rights, by WHAT PRINCIPAL IS ANY consensual adult sexual behavior NOT a protected right? Bigamy? Polygamy? Prostitution? Incest?

Lap dancing as a fundamental right? That is, after Thursday, not a close constitutional call."

Dave comments:
In reality I think George Will's point was that the Supreme Court was wrong in its decision and that with this decision it will be much easier to challenge adult laws. He thinks that such changes in the law should come from the legislative branch and not the judiciary. But now that the Court has ruled, lets welcome the potential opportunity that has opened up.

Bigamy, Polygamy, (common) Prostitution, Incest...all accepted, common and not a sin in biblical times. Again the biblical ignorance of most religious right folks is so obvious when they take their moral positions based on Christian traditions that have no biblical basis.

This shows the extreme importance of not allowing Bush and his religious cronies from appointing new Justices, not only for the Supreme Court if a vacancy develops, but also the important lower courts since the Supreme Court usually gets issues where different lower courts disagree on the constitutional issues. We have a tiny thread of hope here based on the gay rights decision, but it could easily be lost by Bush appointments who would push their morality view vs freedom of consenting adult choices as a constitutionally protected right.

Let us also not forget The Declaration of Independence. We are the only nation in recorded history to have written into our very mission statement the very odd notion that men and women have some sort of right to the "pursuit of happiness". Thomas Jefferson's view on what our unalienable rights are was a particularly bold statement. Jefferson claimed that we have the right to the pursuit of happiness!

Pursuit of happiness. It's my right. It's your right. It's our right. Not the right to happiness, of course, but the pursuit thereof. You pursue it your way, I'll pursue it mine. As long as we do no harm to one another, the pursuit is guaranteed.

A Madam Speaks Out
Dear Dave:

I assume you all heard about yesterday's Supreme Court decision. I have always said that it will take just "one" person to get these laws changed, and that's why I have tried to be so involved. Now, I really think I want to get arrested to get our business legalized.

One attorney on CNN said that this new ruling will open the doors for prostitution, bigamy, polygamy, incest and adultery. Do I care if you have sex with your sister? Of course not, and you should not have to worry about being arrested for it. My only concern is if there are children involved.

Check all your people to see if anyone is going to fight the good fight right now. When I saw this yesterday, I got such peace of mind in my heart. I am now no longer afraid of getting arrested. I believe the fight is over. The only problems could be massage parlors not being allowed in certain locales.

I just started doing incall at a local hotel. I have doubled my business. I don't even know if I want to be a madam anymore. I am grossing over $250,000 per year. I have no aggravation, and can come and go as I please. I would have to do twice as much business as a madam to make the same money. I think I would only do it if I could run a brothel and make at least $500,000 clear.

I am the best and most honest madam around. The girls love me and need me, but I would have to think long and hard.

If anyone is organizing a fight, let me know, I may just hop on a plane.

Let's do it, and do it now.
xxxxxxxxx

Stevi Secret Comments:
This was one of the most important decisions regarding sexual privacy ever. The precedent and implications are potentially enormous. I'm bringing this up again because I wanted to call attention to Justice Scalia's scathing dissent. He said ""The court has taken sides in the culture war" and worse yet "The court has largely signed on to the so-called homosexual agenda,". No competent Federal Judge (much less a Supreme Court Justice)has any right spouting that kind of religous right nonsense from the bench. Of course any thinking person has to seriously wonder about the competency of both Scalia and Thomas. BTW, Democratic presidential hopeful Howard Dean correctly lit into him for those remarks.
Stevi Secret

Other opinion wording:
It does not involve public conduct or prostitution.... (But that issue was not addressed and I don't see why it should be any different if commercial as long as in private consenting adults)

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.

Bill O Reilly says, "No Sex Police"
As on some privacy issues even the very conservative Bill O Reilly supports the Court decision. Bill says, "...And why do we need the Sex Police anyway? We need to police the borders not Liberace."(or our bedrooms).

Bill has shocked that Justice Thomas said he finds no right to privacy in the Constitution. This is the kind of Judges that Bush and the Religious Right wants that will follow a very narrow reading and strict interpretation of the Constitution instead of from the wording their is an implied right to privacy even though those exact words are not used.

Scalia based his dissent on the history of states rights and considers gays as promoting their "agenda" which they should do by normal democratic means saying "I would no more require a state to criminalize homosexual acts...than I would to forbid them to do so." Again this tosses matters of sexuality back to the legislatures where the religious right has so much power instead of the privacy right and from the Declaration of Independence the right to pursue pleasure.

The only "homosexual agenda" I see is they want to be treated the same as any others and not be discriminated against or mocked by bigots based on their natural sexual orientation.

But his conservative viewers don't agree. In the poll on http://www.billoreilly.com 53% of about 11,000 taking the poll are AGAINST the Supreme Court decision.

More wisdom from Stevi:

The Supreme Court's Landmark Sexual Freedom Decision!
People This Is Very Important.
Hi Everybody!

There is a lot of misunderstanding going on what exactly took place at the Supreme Court last week with the ruling on sodomy laws. Now I'm not a lawyer, but in the interest of the group I've done a bit of research on this. I think I've got it now, so I want to pass this along to you. I now understand why Scalia and the conservatives are so upset. This is my take on where we are at and why this is the most important sexual freedom decison ever rendered by a US court.

To understand the decision you must first understand that there is not one but two court cases and two distinct concepts involved. Case One is the Texas sodomy law which applied only to homosexuals. Concept One is the concept of Equal Protection under the law. Case Two is the 1986 US Supreme Court decision ( Bowers vs Hardwick ) which held that sodomy laws are constitutional, not affected by the "Right To Privacy' doctrine developed over the years by the courts,

Let's take Case One and the doctrine of Equal Protection first. In this case Texas had a sodomy law which applied only to homosexuals. This law was found to be unconstitutional because it did not afford equal protection to gays. Simple enough to understand, heterosexuals could engage in anal sex but for homosexuals it was illegal. More importantly by making this decision, the Supreme Court extended the doctrine of Equal Protection to gays. While not part of this case it is important for understanding the future. Conservatives want to frame the gay marriage issue in religious, traditional and moralistic grounds. Marriage however more than anything is a legal state. It affects how you do your taxes, who can inherit your wealth, whether you get a credit card, who can adopt, what your insurance rates will be, who can make life and death decisions and so on. If gays must now be afforded Equal Protection under the law, it is easy to see why they believe that gay marriage is a logical extension of this. Sorry, for those of you opposed but short of a constitutional amendment, it's a done deal.

When the court was done with the Texas law, it then took the rare action of reviewing the 1986 Supreme Court decision in the Hobbes case. In that case, the plaintiff sued claiming a Georgia state law banning sodomy was unconstitutional based on the constitutional protection of "Right To Privacy". The plaintiff lost and the law was upheld.

In order to understand this, you must understand what the "Right To Privacy" is. First off, it has nothing to do with actions that take place in a public vs. a private setting. The "Right To Privacy" deals with your rights to use your body as you see fit. The concept started with the overturning of a state law banning the sale of contraceptives. It was most famously used in the Roe V Wade abortion decision ie a woman has a constitutional right to an abortion because under the "Right To Privacy" she has the right to choose whether or not to use her body to bear a child.

When the court took it upon itself to review the 1986 Bowers case, they found that the previous court had been in error. (Justice Lewis Powell who cast the deciding vote 5-4 in 1986, later admitted such) Last week the Supreme Court reversed the 1986 ruling saying that the "Right To Privacy" concept should have been applied in the Bowers case. In other words, the individual citizen has a constitutional right to engage in anal sex, much like a woman has a constitutional right to an abortion. By extension, it can be easily reasoned that the decison to engage in any sex act is a constitutional right held by the individual. The government can only infringe this right if it can show a compelling interest in doing so. Just so you know, it was this reversal of the Bowers case, that caused Scalia and the conservatives to go off the deep end.

To see the conservatives, let's take prostitution/lap dance laws (which are merely an extension of prostitution laws) as an example. While the government will certainly argue for the continued illegality of prostitution, they must now prove an interest so compelling as to infringe the citizens constitutionally protected right to engage in sex acts. This will not be easy. Prostitution is clearly a consensual act differentiated from other consensual acts only by the exchange of money. Any ills associated with prostitution (health, crime etc) can be remedied through regulations (such as licensing, taxation, health checks, zoning and so forth). If the side effects can be regulated, the government will have great difficulty in justifying infringing the citizens constitutional rights to engage in protected activities. Furthermore, I can think of no other constitutional right that is assigned to the citizens that can be abridged simply because there is a commercial aspect involved.

So there you have it, folks. I hope I did a good job explaining this to you. Better yet for most of us here, this looks like a huge winner to me. Enjoy your newfound freedom. HEY!!! There goes Scalia now. What's he saying? "The sky is falling, the sky is falling, the sky is.......

Stevi Secret
http://www.stevisecret.com

Note this is from Stevi's very good Yahoo newsgroup, http://groups.yahoo.com/group/stevisecret/. Others have argued the "right to privacy" is about whether or not the "act" is done in pubic or private as in a persons bedroom. Both however would support private sensual sexworkers. I feel there is a large public interest against street hookers unless in separate zoned areas. However I see no legitimate argument against in private sexwork. The religious right however will argue public health and morals issues. But it seems the "morality" issue has been struck a serious blow by the Supreme Court.

Follow-up wisdom from Stevi:
On the surface, the court tried to make clear they were only ruling on a private consensual sex act. They out right stated that this ruling did not legalize prostitution. If you read it literally, that's what they said. However they also said (did) this:

1) While they did not make the use of a the body sexually a constitutional right, everything in the ruling said they did. A lawyer told me he felt it was merely a formal distinction. The Roe V Wade privacy considerations (ie use of the body) were intregral in the ruling. If your not following, that means just as a woman has the right to decide wether or not to bear a child, you have the right to use your body sexually as you see fit.

2) Established that the government must have a legitimate interest in criminalizing a sex act. They also established that protection of public morality, based on the view of the majority, was not a legitimate interest.

Based on this decision, here's what I would argue. In the case of prostitution, the act itself is clearly a private consensual sex act distinguished only by the exchange of money from other consensual sex acts. Under the privacy considerations of this ruling, the individual's right to use his or her body in private consensual sex acts was clearly established. The sex act itself has no secondary effects. I would further argue that the real basis for laws prohibiting prostitution are based on public morality, not on legitimate interests. The legitimate interests of the state in health, crime etc can be better furthered not by infringing the right of the individual but by regulation such as licensing, health checks, zoning etc. I would use real life examples of the relatively crime and disease free atmosphere's of places where prostitution is legal (such as Nevada Brothels). I would also point out the futility of current prostitution statutes. Finally, I would implore that the court do society a common sense favor by legalizing and regulating a "problem" making it safer and better for the millions of Americans who the police are unable to stop.

For lap dancing, I would argue that even though the dancing is done in a public place, the manner in which one chooses to dance is a private decision which should be protected under the privacy considerations of this and other (such as Roe V Wade ) cases. I would say that the state has no legitimate interest in regulating the manner of dancing since no provable secondary effects result from the actual act of dancing. I would further press the state to prove that the act of lap dancing itself causes drug use, falling property values, street crime, health problems, rape, pedophilia or any other legitimate government concerns they claim. I would suggest that failure to prove the connection shows that this is thinly veiled morality legislation that should be found unconstitutional.

Say what you want folks. These are powerful arguments and they will be made.

Stevi Secret
http://www.stevisecret.com