Public sex

[Henry K Prempeh]

"Public" sex is certainly not purely self-regarding, and thus a government 
ban on such activity is easily defensible, even on secular grounds.  The 
issue is not that government may not deploy the criminal law to regulate 
morality; it does so routinely, and most of the time its intervention, 
even if supported only on moral grounds, is not objectionable.  The 
problem arises when government acts to regulate "private morality" or 
moral choices that visit no externalities or harm on third parties. 

 We must be free in a free pluralistic society, must we not, to source our 
private moral code from avenues other than the state: 
church/synagogue/temple/mosque/shrine, home, school and personal 
conscience.  Why must we trust the state to be a better judge of what is 
appropriate "private morality" than the church, the self, or the home? 
When the government believes it must have the power to regulate 
self-regarding moral behavior (without limit), it veers dangerously and 
impermissibly close to displacing all other competing sources of morality 
and, in so doing, appoints itself the sole or final arbiter of all moral 
behavior. That sounds like a road to totalitarianism.  Given the 
experience and record of Soviet communism, is that a path we must allow 
the state to traverse?  The learning from Griswold and Lawrence, as I read 
those cases, is that the government may not arrogate to itself the role of 
a totalitarian moral police.  Perhaps that is also why Justice Kennedy's 
opinion in Lawrence, notably his expansive conceptualization and 
definition of "liberty" (replete with references to "transcendent" belief, 
conscience, etc.), makes the government action in that case sound like an 
"establishment clause" problem! 

H. Kwasi Prempeh
Associate Professor of Law
Seton Hall University School of Law
One Newark Center
Newark, New Jersey 07102-5210
(973) 642-8837



"Malla Pollack" <mpollack at ajsl.us> 
Sent by: conlawprof-bounces at lists.ucla.edu
04/19/2007 05:07 PM

To
"'Volokh, Eugene'" <VOLOKH at law.ucla.edu>, "'Con Law Prof list'" 
<conlawprof at lists.ucla.edu>
cc

Subject
RE: Public sex






The problem is that the law is much closer to banning men from holding 
hands
in public to make sure that "we" never get to the spot where we might want
to consider banning sex in public. 

Malla Pollack
Professor, American Justice School of Law
mpollack at ajsl.us
270-744-3300 x 28
articles http://works.bepress.com/malla_pollack/

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Thursday, April 19, 2007 3:44 PM
To: Con Law Prof list
Subject: Public sex

                 Speaking of offense to others, should it be 
unconstitutional to
ban people from having sex in public?  (Should it only be
unconstitutional if the law's proponents are religious people who rest
the law on their religious sensibilities, but just fine if they are
secular people who rest the law on their secular sensibilities?)

                 Eugene
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