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Sunday, April 27, 2003
Please step away from the VCR.....
Sam Heldman has become the source for all that is interesting about Judicial nominee David Pryor and you should be following it here. Of particular note is Pryor's opinion about the All American pursuit of the orgasm (insert Laura Bush asking "the what?" here). Going back to The American Prospect back in December 2000 we read:
As these cases make clear, the sexual revolution did not destroy the old regime. Puritanism (which H.L. Mencken described as fear that someone else might be having a good time) is tenacious; at least, it remains a respected tradition in the federal courts, as Justice Scalia's opinions suggest. Just a few weeks ago, in Williams v. Pryor, a federal appeals court actually upheld Alabama's ban on the sale of sexual devices, in an opinion that is either amusing or appalling, depending on your mood.
A lower federal court had struck down the ban, by declaring it simply irrational. This was, as a matter of law, a highly unusual decision. The requirement that a law must have a rational relationship to some legitimate governmental objective is the most permissive standard of judicial review; its use is usually a signal that a law is about to be upheld. It is only applied to statutes that courts do not consider infringements of constitutional rights (and the lower court in Williams v. Pryor declined to recognize a fundamental right to engage in the private use of sexual devices). The court did find that Alabama had a legitimate interest in banning "the commerce of sexual stimulation and auto-eroticism, for its own sake, unrelated to marriage, procreation, or familial relationships." In other words, sexual pleasure, especially when it involves masturbation, may be banned unless it involves some greater good. Still, the court found the Alabama law arbitrary and irrational, partly because it interfered with "sexual stimulation and eroticism" in the approved context of marital relationships. (Two of the plaintiffs in the Alabama case were married women.)
The federal appeals court reversed this decision--not surprisingly, considering the lower court's reasoning. In applying the rational-relationship test, judges are not supposed to substitute judicial for legislative judgment and invalidate laws that strike them as foolish. So in deciding whether the Alabama law was rational, the appeals court was quite deferential to the state's power to regulate sexual morality. It did not laugh at the state of Alabama's argument that "a ban on the sale of sexual devices and related orgasm stimulating paraphernalia is rationally related to a legitimate interest in discouraging prurient interests in autonomous sex." Instead, with a straight face, the court quoted Alabama's brief approvingly: "[I]t is enough for a legislature to reasonably believe that commerce in the pursuit of orgasms by artificial means for their own sake is detrimental to the health and morality of the State."
This, of course, made me wonder who is going to be the one to confiscate Peggy Noonan's copy of Backdraft.
I sense a SWAT team action sometime in the future.....
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