Sunny Days in Heaven
Spiritual/Political/Philosophical Blog on the Nature of Truth and Falsehood and Heaven

Saturday, January 15, 2005  

Society has no rights

Paul Cella
has written occasionally and well regarding the interests of the State (that is, the people) to regulate the sexual conduct of its members. I wish I could cite him on this, because this recent ruling in Virginia declaring a state law against fornication to be unconstitutional fits into what he has commented upon.

Now these kinds of rulings which religious conservatives often lament draw the inevitable typifying of them as bluestockings, prudes, puritans, busybodies, Solomon Grundys, and killjoys. (I believe that prude is a favorite term even though derived from prudence, prudent, prudential because it is close to "prune" with the image of constipation, wrinkles, and old fogeyness).

But the conservative argument asks what rights does a democratic people have in determining what is prudently moral behavior which needs encouragement with some force of law to it.

The court here ruled that:

"We find no principled way to conclude . . . that the Virginia statute criminalizing intercourse between unmarried persons does not improperly abridge a personal relationship that is within the liberty interest of persons to choose," said the decision, written by Justice Elizabeth B. Lacy.

The law had been on the books since the early 1800s but has not been enforced against consenting adults since 1847, lawyers said. The court based yesterday's ruling on a 2003 U.S. Supreme Court decision overturning an anti-sodomy law in Texas.

The opinion did not deal with a separate Virginia law prohibiting sodomy. But attorneys for both parties in the case said it suggested that the court considers most laws regulating sex between consenting adults to be unconstitutional violations of the 14th Amendment's right to due process.

I have a great difficulty in finding how the 14th Amendment of due process and equal protection applies here except that it must have been applied by SCOTUS in the Texas sodomy case.

Most Republicans today don't believe such laws as these ought to exist anymore, and they have strong arguments for that. And clearly, this was not a law that has been enforced recently except that it was a linchpin in a case where a women sued a former boyfriend for $5 million for damages because she had contracted herpes from him which he had never dioslosed to her as having.

The court determined that she couldn't sue because she had been engaged in an illegal action and was not entitled to any damages for that reason.

I find a certain poetic justice in that original finding. The wages of sin in this case being disease. I believe that society has a stake in legally disapproving of risky behavior, and allowing natural consequences to prevail.

Yesterday's ruling relied heavily on the U.S. Supreme Court's opinion in Lawrence v. Texas, which involved a man who had been convicted of sodomy. In that case, the justices ruled in favor of the right for personal relationships to be free of governmental interference.

"The State cannot demean their existence or control their destiny by making their private sexual conduct a crime," the opinion said.

The idea that the State somehow demeans someone's existence or controls their destiny by prohibiting bad conduct, private immoral activities -- well, that opens the door to quite a few things. Although the court said:

"Our holding does not affect the Commonwealth's police power regarding regulation of public fornication, prostitution or other such crimes," the opinion said.

How can you logically allow there to be drug laws or prostitution laws based on private behavior since they clearly interfere with individual destiny, and demeans one's power to do as they please?

I suppose that courts will continue to say that the State has a compelling interest in those examples I cited above, but medical marijuana issues already compromise that argument; and many people can claim that because of disability or disfigurement that prostututes are the only way they can fullfill their destiny to have sexual pleasure. They can claim they are repulsive to non-prostitutes and thus frustrated and demeaned against their right to have an orgasm with a partner.

This is not an Olympian decision that prefigures the End of the World as we know it, but it is one of those tiny erosions that eventually add up when the kind of reasoning used by lawyers to undermine personal responsibility or the right of the people to decide how they want to order their lives in community.

Why couldn't the legislature have determined the future of this law? We know why. To ask is to answer. That would have been a democratic way, and the liberal elite prefers judicial fiat to rule our lives.

It is also quite remarkable for the Court to determine that control of one's destiny applies to immoral decisions. Destiny is a word that is more generally thought to point to a higher ground of being, a striving to fullfill a noble desire. Certainly one can refer to a man as looking like one destined to hang, but when people talk of their destiny it's usually meant as a positive ending, whereas the prognostication of a hanged man is more often chalked up to fate which carries a fatalistic, negative connotation.

posted by Mark Butterworth | 6:14 PM |