Another case on the Frontiers of the Privacy concept.
In another context we have a case that was just argued to the Ninth Circuit Court of Appeals. Since it’s the Ninth, we can’t tell what the outcome will be except that what is healthy and good for larger society will not be a major consideration of most justices occupying that bench.
This case involves a disabled male who wished to procure the services of a prostitute in the privacy of his own home and three former sex workers who wished to satisfy his desires. Seems reasonable enough. Except for a troublesome state law that specifies Prostitution is a crime. One can go to jail for soliciting a prostitute or engaging in sex for money.
It’s always interesting to see who files Friend of the Court briefs in such cases. Of course the ACLU supports overturning the prostitution statue, but so does Black Women for wellness, the California Women’s Law Center and even something called Children of the Night. No doubt the women in these organization would march against any man who boorishly pats their fanny or puts his hand on their knee, but think nothing of defending the exploitation of women by pimps, drug dealers and gang members.
And then there is the moral underpinning of the law. Not so much a consideration in a society increasingly proud of its secularlism.
Oh well, so how did we get here?
Let’s look at a couple cases on Privacy of sexual relationships.
In 2003 the Supreme Court decided Lawrence v. Texas. Justice Kennedy wrote the majority decision (6-3) which held that a law which permitted heterosexual sodomy, but banned homosexual sodomy was unconstitutional under the Fourteenth Amendment’s Due Process clause. It was found to deprive persons of a fundamental liberty to make decisions regarding adult, consensual, and private sexual activity. It is a landmark decision and since its publication it has been used to challenge a whole host of governmental regulations.
Justice Scalia writing in dissent pointed out a fundamental problem with relying on a court decision to change rules and regulations governing society. He carefully argued that while he is not adverse to gay rights, it is not a proper role of the courts to change the rules.
He said, “Let’s be clear I have nothing against homosexuals or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. . . But persuading one’ fellow citizens is one thing, and imposing ones’ view in absence of democratic majority will is something else. . . (as by) the invention of a brand new “constitutional right” by a Court impatient of democratic change. It is indeed true that “later generations can see that laws once thought necessary and proper in fact serve only to oppress”; and when that happens, later generations can repeal those laws, but it is the premise of our system that those judgements are to be made by the people, and not be imposed by a governing caste that knows best. . . “
This defining debate continued on in the Obergefell v Hodges cases decided in 2015. Again, the majority decision (5-4) was written by Justice Kennedy and found the right of same sex couples to marry was a fundamental liberty protected by the Fourteenth Amendment Equal Protection and Due Process clauses. Justice Kennedy’s words are echoed in the cases by both sides of the argument. He said, “new insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged.”
In a similar vein he wrote “that the nature of injustice is that we may not always see it in our own times. . . and so we entrusted to future generations a charter protecting the rights of all persons to enjoy liberty as we learn its meaning.”
Justice Scalia, again in dissent does not quarrel with the concept, but only with whether it was left to future generations of citizens to exercise their democratic prerogatives or future generations of judges who would decide for the rest of us. He wrote “Today’s decree says that my ruler and the ruler of 320 million Americans coast-to-coast, is a majority of nine lawyers on the Supreme Court . . . With each decision of ours that takes from the People a question properly left to them – with each decision that is unabashedly, based not on law, but on the “personal judgement” of a bare majority of this Court-we move a step closer to being reminded or our impotence.”
And he means by that at some point, the Supreme court will face a harsh reminder that the judiciary is indeed the weakest branch of government with neither the power of arms or the purse. He clearly sees a danger in the “hubris” of the court.
If you are a member of a group being denied the same rights as other citizens, how patient must you be and for how long must you be? It’s hard to truly appreciate how our fellow citizens feel, unless you are a member of that group. On the other hand, what of democracy? Slow, plodding, inefficient democracy? Do we believe in it or not?
Returning to the Prostitution case, the sides argued a plethora of “liberty” issues may be involved, all the way from freedom of association to privacy of relationships. They asked can there be such a thing as privacy of relationships when there is money on the table or I guess you could say “skin in the game.” (Pardon the pun). But the ultimate question is whether these matters are for the people to decide through their elected representatives or is up to the court to overturn a law criminalizing conduct that has been against the laws of most states (though not all) for the life of the republic. Who gets to decide?
We are still working it out.