Public sex

[Earl Maltz]

What about animal cruelty laws?

At 07:24 PM 4/19/2007 -0400, Henry K Prempeh wrote:

>"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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