Wednesday, August 21, 2013

Legislating Morality Part III

The Flaw in the "Right to Privacy"

In Part I, I exposed the fatal contradiction in Windsor. In Part II, I followed the “right of privacy” from its creation through its expansions to Lawrence. Today, I will conclude by exposing the logical end of this line of reasoning.

Of course, if the “liberty protected by the constitution” allows homosexual persons to choose to engage in sexual conduct that the state has prohibited, then where can that possibly end? Would that not mean that prostitutes and johns are protected in their rights to enter a relationship with each other where “sexuality finds overt expression in intimate conduct” and an exchange of money? It may be argued that this relationship is prevented by the phrase “within the liberty of persons to choose without being punished as criminals,” but why is prostitution not “within the liberty of persons to choose without being punished as criminals?” Does this mean that homosexual conduct would not protected if states had commonly prohibited not just the actions, but the relationship of homosexual persons, just as states commonly do for prostitution?

I watched the August 10, 2013 episode of The Wonderful World of Stu on The Blaze TV. During the episode an interesting analogy was made during a discussion with the guest, who was outspoken in favor of legalizing prostitution. Stu Berguire pointed out that, according to the Supreme Court, prostitution is the only sexual conduct that is somehow not protected by the Constitution. Of course sex inside marriage is constitutional; after all, the purpose of state recognition of marriage is to promote the ideal situation for raising children. As we discussed in part II, the court expanded to say the constitution protected unmarried sexual relations, without providing a method to distinguish between a long-ongoing relationship or a one-night-stand, recognizing no criteria but the sexual component of the relationship. Then the court ruled that the first amendment allows for sex without any but a monetary relationship, as long as it is recorded and distributed as porn. Thus, all types of consensual sexual conduct are protected except prostitution.

If homosexual conduct is involved in a relation in which men are free to engage without being criminally punished, then how is prostitution not also protected? Indeed, if homosexual conduct is protected by the constitution, how, really, can legislatures be allowed to prohibit any conduct?  Kennedy opines, in Lawrence, “The issue is whether the majority may use the power of the State to enforce these views on the whole society through the operation of the criminal law. Our obligation is to define the liberty of all, not to mandate our own moral code.”

As I discussed in part I, it is undisputable that the majority may indeed use the power of the state to enforce ethical and moral principles through criminal law. What is any law except the moral requirements of the majority? If society is prohibited from enforcing ethical and moral convictions on those subject to society, then how can society prohibit, for example, an untrained, unlicensed individual from providing legal advice and acting as counsel for another? How can society require that people pass a driver’s test before receiving a license to drive? How can society prohibit the use and distribution of “controlled substances”?

The way law works, I may not agree with a decision to prohibit the distribution or sale of contraceptive devices, but that doesn’t mean I have a “right,” protected by the constitution, to contraceptives. Instead my options are either to lobby the legislature to change the law, or move from the state that is prohibiting my use of contraceptives, if I still desire to use them. To say that all people have a “right” to contraceptives can only mean that all people have a “right” to whatever they want, including wanting to engage in prostitution, and polygamy, and homosexuality, and bestiality, and pedophilia, and incest, etc. etc. etc.

And that is why the entire line of reasoning behind the Windsor and Lawrence decisions is erroneous.

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