From: Valence (valence10@hotmail.com)
Date: Tue Jul 01 2003 - 06:39:28 BST
Hey Johnny and all,
J
> Why is something that is perfectly legal to do in "private" illegal to do
in
> "public"? Why are some things legal to do in public, like hold hands,
kiss,
> etc, but other things not?
>
> Doesn't it come down to moral standards? And didn't the court just say
that
> moral standards are not a sufficient grounds for a law? What sort of
> sufficient grounds need to be found to justify keeping people from public
> sex?
R
All good questions J. The easiest answer is to say that the legal confusion
stems from the fact that our laws are a hodge-podge of hundreds (if not
thousands) of years of statutes crafted by diverse legislatures and
interpreted by diverse judiciaries. Laws are not always internally
consistent as they often come about from the compromises of legislative
bodies made up from representatives each guarding different, and often
opposed, interests. This perspective would conclude that the law is
constantly being modified to try and reflect the needs, interests and
expectations (i threw that one in just for you J) of society... logic be
damned. But if you want to get technical...
The Supreme Court's own analysis revolves around concepts of legally
defined 'zones of privacy' and every individual's 'reasonable expectation'
of privacy. In the home, (where the right to privacy is at its legal
maximum) privacy is the individual's right to be let alone and be free from
unnecessary government intrusion and specifically revolves around things
like marriage, child rearing, contraception, abortion, and now sexual acts
between consenting adults. In public, where the right is at its minimum,
privacy is a much more limited concept (generally extending to your rights
against search and seizure at the hands of the police). To the court, the
issue is really about how much power *the government* has to make and
enforce laws that violate these zones of privacy. The Supreme Court's
recent opinion in Lawrence v. Texas held (among other things) that state
legislatures cannot use the mechanisms of the *criminal* law for the *sole
purpose* of enforcing the moral views of the majority. A legitimate
interest (eg. health, safety or welfare) must accompany the moral concern
and the operation and effect of the law must be rationally related to that
legitimate threat. What this new pronouncement implies for public decency
and obscenity laws is anyone's guess (Justice O'Connor felt that most such
laws will be safe, though she didn't really explain why, Justice Scalia felt
that most such laws are now doomed, the majority didn't really say much
about it at all) and who will be right is up to 'history' and future actions
by courts, legislatures and voters all over the country.
J
Who is harmed by merely witnessing consentual sex? Uptight people
> only, right?
R
Who knows? If we saw it all the time, we probably wouldn't think twice
(this is the spot for your philosophy of expectation). On the other hand,
getting naked in public might be dangerous (for the ladies especially) and
preventing rapes and sexual assaults might be a legitimate enough interest
to keep everyone clothed in the town square and there could be public health
issues involved as well (although I'm no epidemiologist).
does that help any?
take care
rick
Those who lack the courage will always find a philosophy to justify it. -
Albert Camus
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