Right to have sex

[Volokh, Eugene]

        Rick:  Given your view that Employment Division v. Smith was
wrongly decided, would you agree that the Constitution *does* give
people the right to have sex if their sexual behavior is religiously
motivated?

        I realize that not all sexual behavior is religiously motivated,
but let's say that a homosexual sincerely claims that his religion views
sex with the love of his life -- perhaps within a religiously
solemnized, even if not secularly recognized, marriage, or perhaps not
-- as a sacrament.  Would you take the view that such sexual contact is
indeed constitutionally protected?

        (Note that this would normally be a question for RELIGIONLAW,
not for CONLAWPROF, but given that this thread was born on CONLAWPROF,
and given that the answer may be relevant to the broader constitutional
issues, I think it makes sense to keep it here.)



> -----Original Message-----
> From: richard duncan [SMTP:rduncan at UNLINFO.UNL.EDU]
> Sent: Thursday, March 25, 1999 11:43 AM
> To:   CONLAWPROF at listserv.ucla.edu
> Subject:      Re: victimless activities
>
> Brooks, I don't think the Constitution says *anything* about sex.
> Long before I would interpret the Constitution to cover fisting, or
> sodomy, or golden showers, or any other kinds of orgasmic activity, I
> would protect freedom of contract, and property against regulatory
> takings, and school choice, and free exercise of religion, and a cap
> on taxes of 5%, and.... But not every law I like is constitutionally
> required; and not every law I dislike is constitutionally forbidden.
> I don't like democracy when I lose, but even then it is better than
> government by the judiciary.    --Rick Duncan
>
>
>
> > So, do you protect "the freedom to reach an orgasm in the particular
> way
> > that he
> > favor[s]" within the bounds of same-sex marriage?  Once you are
> > married, anything goes?  If the legislature wants to forbid all
> > intercourse except "missionary" style between married couples, you
> would
> > have no constitutional objection?
> > Do you then find that all sex outside of marriage may be forbidden
> > without offense to the Constitution?
> >
> > richard duncan wrote:
> > >
> > > Frankly, I think substantive due process is an oxymoron, thus I
> would
> > > not protect *any* fundamental rights under SDP.
> > >
> > > To the extent that SDP has always been with us--from Dred Scott to
> > > Lochner to Roe--I prefer the approach set forth by White in
> Hardwick
> > > and Rehnquist in Glucksberg:
> > >
> > > 1) A great reluctance to do anything that risks substituting the
> > > policy preferences of the Court for those of a free and
> self-governing
> > > people acting through the democratic process.
> > >
> > > 2) Only rights that are "objectively, deeply rooted in this
> Nation's
> > > history and tradition" are protected as fundamental rights.
> Moreover,
> > > the relevant historical inquiry must be based upon a "careful
> > > description of the asserted fundamental liberty interest." In
> other
> > > words, the liberty interest must be described at a reasonably
> specific
> > > level of generality in determining its historical pedigree.
> > >
> > > Same-sex marriage is an easy issue under Glucksberg; there is an
> > > unbroken tradition (most recently expressed in the bi-partisan
> > > consensus supporting DOMA) recognizing marriage as unique
> two-person
> > > community defined by sexual complementarity.
> > >
> > > I do not support *legislation* restricting the various ways of
> achieving
> > > orgasms, but I also don't believe the Constitution protects a
> right of
> > > orgasmic autonomy. The proper forum for resolving these issues is
> the
> > > democratic process, not judicial ukase.
> > >
> > >                               --Rick Duncan
> > > > richard duncan wrote:
> > > > >
> > > > >
> > > > > But is "making love" a fundamental constitutional right.
> "Making
> > > > > love," of course, is merely a euphemism for doing as I please
> and
> > > > > without regard to the costs I may be imposing on anyone else.
> As John
> > > > > Garvey points out in What Are Freedoms For?, although the
> dissent in
> > > > > Bowers v. Hardwick defended Hardwick's right to participate in
> a
> > > > > consensual "intimate relationship," the facts of the case
> involve not
> > > > > an intimate relationship but a one-night-stand between
> Hardwick and a
> > > > > stranger from from out of state who pleaded guilty to reduced
> charges
> > > > > and promptly left town. As Garvey puts it, "what Hardwick's
> suit asked
> > > > > for was the freedom to reach an orgasm in the particular way
> that he
> > > > > favored."
> > > > >
> > > >
> > > > Are you saying:
> > > >
> > > > (1) Long-term homosexual relationships are constitutionally
> protected,
> > > > but not homosexual one-night stands?
> > > >
> > > > If so, would you say,
> > > >
> > > > (2) Long-term homosexual and heterosexual relationships are
> > > > constitutionally protected, but neither hetero- nor homo-sexual
> one
> > > > night stands?
> > > >
> > > > If not, are you saying,
> > > >
> > > > (3) Traditional long-term hetero relationships are
> constitutionally
> > > > protected, and other relationships, if they are constitutionally
> > > > protected, are protected to the degree they are like traditional
> > > > long-term hetero relationships?
> > > >
> > > > And if so, would you find constitutional protection for the
> freedom to
> > > > reach an orgasm in the particular way that one favors within a
> > > > long-term, hetero, relationship, or would you allow the State to
> > > > regulate styles of intercourse?
> > > >
> > > >
> > > >
> > > > > By the way, although Justice White's much-maligned opinion in
> Hardwick
> > > > > is often predicted to be on the verge of being overruled, the
> news of
> > > > > its demise may be premature. The reasoning and substantive due
> process
> > > > > methodology of Hardwick was completely vindicated by the
> current Court
> > > > > in Glucksberg. See Duncan, "They Call Me Eight Eyes":
> Hardwick's
> > > > > Respectability, Romer's Narrowness, And Same-Sex Marriage, 32
> > > > > Creighton L.Rev 241 (1998).  --Rick Duncan
> > > > >
> > > > > > This discussion is getting a bit silly. Even if Rick is
> right, we would
> > > > > > have to add the people created by making love. Thus, if we
> stopped making
> > > > > > war, there would be more people in the world. If we stopped
> making love,
> > > > > > there would be no people in the world. He might just as well
> say that
> > > > > > breathing causes more deaths than war.
> > > > > > Bruce Altschuler
> > > > > >
> > > > > > On Tue, 23 Mar 1999, Richards, Edward P. wrote:
> > > > > >
> > > > > > > > Rick, you cannot be serious.  "Make war" is less deadly
> than "make
> > > > > > > > love"???
> > > > > > >
> > > > > > > If you figure that in the global scheme of things, wars
> have not killed even a
> > > > > > > small percentage of the people that communicable diseases
> kill, and that almost
> > > > > > > any communicable disease can be transmitted sexually, then
> Rick is probably
> > > > > > > right!
> > > > > > >
> > > > > > > Ed:-)
> > > > > > >
> > > > > >
> > > > >
> > > > > --
> > > > >                    ------------
> > > > >                    Rick Duncan (rduncan at unlinfo.unl.edu)
> > > > >
> > > > > "If there is government in Hell, it is most probably a body of
> > > > > unelected lawyers, serving eternal appointments, and issuing
> 100
> > > > > page decrees."
> > > >
> > >
> > > --
> > >                    ------------
> > >                    Rick Duncan (rduncan at unlinfo.unl.edu)
> > >
> > > "If there is government in Hell, it is most probably a body of
> > > unelected lawyers, serving eternal appointments, and issuing 100
> > > page decrees."
> >
>
>
> --
>                    ------------
>                    Rick Duncan (rduncan at unlinfo.unl.edu)
>
> "If there is government in Hell, it is most probably a body of
> unelected lawyers, serving eternal appointments, and issuing 100
> page decrees."