Jewish World Review June 27, 2003 / 27 Sivan, 5763
Lap dancing on the Constitution
Opponents of the ordinance, including the dancers, deny that prostitution flourishes at the clubs. And they call the ordinance an unconstitutional abridgement of free artistic expression. But a federal appeals court upheld a law in Washington state requiring dancers to stay 10 feet from customers. Opponents should haul out the heavy constitutional artillery -- the privacy right.
Given the Supreme Court's 6 to 3 ruling yesterday that Texas's anti-sodomy law violates the constitutional privacy right, lap dancing -- like prostitution, for that matter -- looks like a fundamental constitutional right. Consider the discontinuities in the evolution of that right, which the court first explicitly affirmed in 1965, more than 17 decades after the Constitution was ratified.
In 1965 the court said a Connecticut law banning the sale and use of contraceptives violated a constitutional right of privacy. But the court connected this right to society's stake in an institution -- marriage, "an association that promotes a way of life." Marriage is grounded in nature, in the generation and rearing of children, a matter about which every society legislates.
The privacy right is most famously associated with Roe v. Wade, the 1973 abortion decision. But the radicalism of that decision was in severing the privacy right from any relationship with any social institution. Rather, the court said in 1973 that the privacy right encompasses the individual's right of choice. In sexual conduct, the right to choose is the right to consensual activity.
In the 1973 severing, the court said the privacy right involves "freedom from government domination in making the most intimate and personal decisions." Such as to choose to engage in sodomy. So the court contradicted its 1973 privacy right ruling when, in 1986, it voted 5 to 4 to affirm a Georgia law criminalizing consensual adult sodomy. And one justice in that majority, Lewis Powell, later said he regretted his vote.
Yesterday the court held that Texas's law "furthers no legitimate state interest" that can justify abridging the privacy right to consensual adult homosexual activity. The logic of the 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.
In the 1986 case, the court said it was being asked to "announce . . . a fundamental right to engage in homosexual sodomy. This we are quite unwilling to do." Yesterday the court seemed to think it still had not done so. It was mistaken.
Today laws criminalizing homosexual sodomy are rare and rarely enforced. They should be repealed. In most states they have been, by democratic persuasion.
But "unconstitutional" is not a synonym for "unjust" or "unwise," and the Constitution is not a scythe that judges are free to wield to cut down all laws they would vote to repeal as legislators. Legislators can adjust laws to their communities' changing moral sensibilities without creating, as courts do, principles, such as the broadly sweeping privacy right, that sweep away more than communities intend to discard.
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 cloaking sexual activities as constitutional rights, by what principle is any consensual adult sexual conduct not a protected right? Bigamy? Polygamy? Prostitution? Incest? Even -- if we assume animals can consent, or that their consent does not matter -- bestiality?
By what has been called "semantic infiltration," seemingly bland language stealthily permeates discourse with ideology. So it is with the now commonplace locution "sexual preferences."
If preferences are all that they are, if none are grounded in nature rather than mere conventions or appetites, then by what principle are they not all equal? And given that in a 1992 abortion ruling the privacy right was explained as "the right to physical autonomy," the question is not just whether there is a fundamental right to engage in sodomy. Why not the right to physical autonomy in using heroin?
Lap dancing as a fundamental right? That is, after yesterday, not a close constitutional call.
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