Flagrant Conduct

And Also:  I referenced and posted some video of the empty controversy here but as I noted in comments there, the idea that support of race based affirmative action is "racist" is standard trope for the FOX crowd and being shocked about it is a bit naive.

The ratifiers of the ninth amendment didn't have to worry about the right to abortion since abortion wasn't illegal before quickening in 1789. I do think those who pushed for the ninth and tenth amendment felt such rights as decisions of family size and choice, control of their bodies, and the like was included.  A free society that would say not allow you to have any more children after a certain point isn't that free.  The rights also change through time -- homosexuality was until 1973 or so was seen as a mental disorder for instance.  I for one think many of the ratifiers would call anti-sodomy laws garbage since they were a randy bunch and some homosexual.

That is a bit of ancient history recently found on the web (via a bulletin board before I even knew about any World Wide Web as such) -- think early Clinton years -- underlining how long I've been talking about such things. The issue of homosexual rights, rights that are so interesting and important to me because they are but subsets of more basic things, continue to this day.  We are all just passing thru a much longer battle.

A seminal case here is Lawrence v. Texas, the personal story (overall history and legal matters are handled, but those looking for detail there should look elsewhere) covered by an excellent new book entitled Flagrant Conduct. As noted by a review by Dahlia Lithwick and here, one surprising thing about the case is that the "couple" involved not only were not really one, but were probably not even having sex when "caught" by the police.  As noted by Prof. Dorf., this wouldn't be the first time the courts decided the law on "facts" that might not match what actually happened. The Supreme Court clearly is concerned and influenced by facts, but ultimately they rule on law.

[Update: One bit of trivia explains why the state D.A. delayed beginning his argument (see the Oyez.com audio) -- he found a watch left behind by someone and showed it to the marshal.  No one claimed the watch at that time.]

The charm of the case for the movement was that it provided a window into challenging a law that clearly had nefarious effects but was rarely directly at issue in our criminal actions, if ever in purely private avenues. Bowers v. Hardwick also involved an accidental discovery, but the two there to my knowledge actually was having sex.  The apparent truth was apparently driven by the discriminatory actions of the lead officer in the case and furthered by the motivations behind a law that only targeted one group of people. The law -- like the use statute in Griswold v. Connecticut -- was in no way toothless. It's force was nefarious for its "closeted" nature.  This was recognized in the opinion itself.

The book notes how important bars were and I guess continue to be in some sense to the movement for equality here.  They provided a public place for gays and lesbians to meet and associate.  This is not atypical.  Taverns were a major meeting place for those upset at the British in the days before the Revolutionary War as well.  As with coffeehouses, they were a primary social meeting place for the masses and often for the elites too.  The importance for protest and personal association is clear.

[Update: Rachel Maddow mentioned last night that America Samoa Republican delegates yesterday were being chosen at a bar. Thanks to the the Pacific delegates, Romney had a thin win delegate-wise last night.

There is a chance that Romney will receive a few too little delegates by the end of the process. This provides the also rans, even perhaps Paul, significant power.  Other than the fact that these guys have little else on their plate at the moment and it's a long-shot any of them will win in November, this makes it logical for them to stay in the race.]

This raises questions about Dallas v. Stanglin (1989), which rejects a broad right to social association, there at dance clubs. Somewhat strangely,* Brennan and Marshall went along with the dismissal even though Stevens and Blackmun noted:

the opportunity to make friends and enjoy the company of other people — in a dance hall or elsewhere — is an aspect of liberty protected by the Fourteenth Amendment

though not as a First Amendment right of association as such. They thought the law, which restricted certain dance halls to those between 14-18, reasonable and in fact arguably helpful toward that end.  So, they would have upheld the law on narrower grounds. The main opinion rejected expanding an earlier ruling (by Brennan) that protected intimate association among small groups or larger "expressive" associations to cover such "recreational dancing." Rehnquist noted such things as "meeting one's friends at a shopping mall" does not involve First Amendment protections.

But, meeting friends is repeatedly a means to associate with others to talk and relate.  And, going to the bar or dancing is also a means to do that sort of thing.  It is a prime means to associate with others, often of a similar racial, sexual orientation or other class of people.  It is not "high" importance to express opinions and the like, sure, but it very often has that value. At the very least, contra the opinion, it has an "intimate association" context.  What exactly is "socializing" if not partially that?

I won't cite it, but this reminds me of another case where the Chief Justice dismissed the idea that internet message boards and the like can be a sort of public forum.  It's a fairly limited view of things.  The case could have decided narrowly enough without going that far.  It is sensible as a time, place and manner matter to judge that teenagers should have their own place to hang out.  There are teenage sections of the library, so why not teenage dance halls and skating risks?  The reasonableness given the age of the patrons and the possible problems of adults (including as to drugs or perhaps sexually) interacting there -- especially since there were places for mixed company allowed -- was enough to uphold the statute. 

Some have noted that Lawrence v. Texas protects fleeting sexual acts as much as more long lasting relationships, just as earlier cases protected contraceptive uses for such things. It is also important to protect avenues where such relationships can originate, including social meeting places. These matters are part of the wider liberty involved and should not be diminished as unimportant or trivial in nature even if they are not as intimate and privileged as more private spaces.

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* [re-edited] The basic logic can be that the main opinion, though arguably somewhat weakly, re-affirmed the right to intimate and expressive association and that it is important to separate the most important and threatened aspects of these rights. Thus, family privacy would mean a lot more than meeting in a public place to dance with a bunch of people (as compared to a law that limits same sex dancing, e.g.).

I understand the idea there and recall a lower court opinion that rejected trying to force causal chit-chat and hanging out with friends into rights usually left for more important things.  Still, I think this can be taken too far and that it is important to recognize (as did the concurrence) that there is a liberty interest of some importance here as well. The concurring opinion recognized this without putting them all on the same level.