Monday, July 11, 2005

L&S: The Harm Principle after Lawrence v. Texas

James S. Taylor now holds the floor, lecturing about Mill's harm principle. In contrast to Steve, James encourages student interaction and keeps tabs on their comprehension by taking occasional votes. I've used that technique, too, and find it useful.

Substantively, James illustrates the harm principle by invoking shocking descriptions of U.S. prohibitions on consensual sexual activity. This edges into hilarity when he pulls out a stuffed sheep toy and confesses to partaking of "the love that dare not bleat its name."

I wonder, though, how many of the laws that James cite remain valid after Lawrence v. Texas, 539 U.S. 538 (2003). Therein, the court held that a Texas statute criminalizing homosexual anal sex violated the Due Process Clause of the U.S. Constitution's 14th Amendment. The Court said, in relevant part,
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. . . . 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. . . . The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.

Id. at 578.

Legal commentators have debated how far Lawrence reaches beyond state laws prohibiting private consensual sexual acts. I don't think we can assume that the case invalidates laws against bestiality or, to cite a closer case that James now has raised, necrophilia. I don't think anyone can plausibly claim, however, that Lawrence fails to strike down laws criminalizing private oral or anal sex between consenting adults, be they the same sex or not.


Anonymous said...

I'm curious as to the rationale here. How does a guarantee of "due process", ie clear legal procedure, translate into a right to have any kind of consensual sex one can get? I'm not arguing that such sex should be outlawed, but I don't see how the Constitution can be construed as protecting it either.

Jason B.

Jeanne Marie said...

In response to the comment, I think it is not so much a right to sex, as in a positive right, but a right from the government intefering in personal lives (right to privacy). Although "right to privacy" sounds really wishy-washy, I think it is just that. The government cannot tell someone what to do with themselves whether it is to dye their hair, or to engage in sexual intercourse.

In reply to the post, the laws and data he was citing were from 1993, so in the name of progress, I would hope that things have changed since then.

Anonymous said...

I'm not opposed to keeping the Feds (and the States and the Municipalities, etc) out of the bedroom, but I don't see how the "due process" clause relates to the situation. "Due process" only requires that the government cross all it's "t's" and dot all it's "i's" when prosecuting someone, without saying anything about what laws may or may not be prosecuted (as far as I can tell anyway).

If the Courts want to say that the "right to commit consensual sodomy" falls under the heading of "non-enumerated rights" as per the ninth Amendment, that's fine. I just don't see the logic in citing "due process".

Jason B.

Tom W. Bell said...

Jason B.: I, too, would have preferred that the Court (expressly) rely on the Ninth Amendment. Instead, it relied on the doctrine of "substantive due process." In brief, as its name implies, that doctrine goes beyond protecting mere procedure.

Anonymous said...

There Taylor goes, again, denying the existence of rights. Look, the justification for rights can be utilitarian - those rights are valid only insofar as they generate good outcomes - the existence of rights or rules helps us avoid the messy situations generated by act utilitarianism. Since I know Taylor is a rule utilitarian, he should stop trying to be so coy as to deny rights or "rights" or rules. Wish I were there!