Monday, August 27, 2007

Lawrence and Griswold relevant?

I've been trying to think about how to write about the upcoming case that Bean at Lawyers, Guns and Money has been pushing. The basic fact is that the state of Alabama bans vibrating adult novelties and the 11th Circuit Court of Appeals has upheld this ban. The Appeals Court held that there is no right to sexual privacy and therefore the state has a compelling interest.

I am not a lawyer, nor do I even play one on this or any other blogs, but WTF. I thought sexual privacy was a constitutional right under Justice Kennedy's opinion in Lawrence.

The petitioners were adults at the time of the alleged offense. Their conduct was in private and consensual.....

“It is true that in Griswold the right of privacy in question inhered in the marital relationship… . If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” .....

The laws involved in Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.

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. “It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.”

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