The author supports a Millian approach where "self-regarding" conduct is protected. This leads her to argue that Lawrence v. Texas only is so good, since it provides a special place for the home. But, the home IS a special place -- for some reason, Nussbaum fails to note that the Third and Fourth Amendments specifically speak of "houses."
The ruling, as she notes, does say that the liberty at issue is protected beyond the home to some unclear degree. Holding hands in public should not be criminalized. Yes, the ruling only goes so far. But, it goes pretty far, including protecting intimate conduct of a sexual nature that other opinions merely hinted at in breadth. Thus, Carey v. Population Services International left open "the difficult question whether and to what extent the Constitution prohibits state statutes regulating [private consensual sexual] behavior among adults," leaving open criminal fornication laws even among heterosexuals. Lawrence basically compels that such things are unconstitutional even if the somewhat opaque language makes upholding laws against selling sex toys somewhat (only somewhat) not risible.
It is appropriate to focus on seclusion and consensual choice, not just the home. Thus, the USSC split but 5-4 on upholding a ban on expressive nude dancing though in time it went down to 6-3 (the book missed Souter's change of heart, but two other votes changed too) -- Justice White noted that even though it was a "public place," the nude dancing should be protected given the presence of consensual adults. Practice protecting even public sex in secluded portions of parks also is noted. A misguided view of "private" v. "public" would hold that AA meetings or doctor appointments are purely "public" since they take place in "public" places not in pure secrecy. See, e.g., Justice Rehnquist's dissent in Roe v. Wade!
Nonetheless, I do think she might go too far in respect to sex clubs. She too blithely notes that even if there is a real risk of STDs, including AIDS, consent should be the test. What about the danger of spreading it to others, such as unknowing spouses and significant others? There are criminal laws for that. That made me say "oh come on!" Such laws are rather unenforceable -- how do you prove (1) the person knew they are infected (2) fraudulently had sex with a partner, who did not knowingly accept the risk? Like anti-prostitution laws, the better argument to me seems to be that the alternative to a regulated sex club is less safe.
[And Also: Another problem with her "solution" (which she very well might not be too serious about, just using it as a means to answer a possible criticism) is that many who otherwise are sympathetic to her p.o.v. do not like such laws. On Gay USA recently, e.g., a host made it clear that he opposed a prosecution regarding someone not telling a partner of his HIV status, apparently fearing the negative results of regulating things that way. Such concerns need to at least be referenced if this is put out there as an adequate alternative to a ban.
The fear would be that criminal law would lead to counterproductive results, including such people not getting health care since they fear criminal sanction for not being fully open to the right parties about their status. At the very least, a purely for-profit sex club without heavy regulation very well is a tricky case, opening up chance of spreading of sexual diseases given the high volume of anonymous sex, including to third parties who are not told and restraints on that are in practice pretty weak.]
The book does helpfully discuss the complexities of "private" and "public" -- from purely private in the seclusion of one's home to consensual behavior in public places to the sort of truly "nuisance" and generally harmful type behavior that is appropriately regulated or even banned. SSM is an example of how Lawrence left open something that the opinion specifically did not decide -- it even said it was not deciding the question. But, like other rulings, the opening was obviously there using the overall logic of the ruling. "Public" behavior of other types will also arise soon enough, if it is not already in various respects.
It is also interesting that the book does not seem to have dealt with at all with transsexual issues at all. Alternative sexual behavior was dealt with a bit along with nude dancing, but I can see that -- the book is after all about sexual orientation specifically. Nonetheless, the "GLBTQ" acronym alone suggests that transsexual and to some degree "queer" or "questioning" (however one defines the "q") is worth a bit more comment, perhaps. Even in a small book of this sort.
The ruling, as she notes, does say that the liberty at issue is protected beyond the home to some unclear degree. Holding hands in public should not be criminalized. Yes, the ruling only goes so far. But, it goes pretty far, including protecting intimate conduct of a sexual nature that other opinions merely hinted at in breadth. Thus, Carey v. Population Services International left open "the difficult question whether and to what extent the Constitution prohibits state statutes regulating [private consensual sexual] behavior among adults," leaving open criminal fornication laws even among heterosexuals. Lawrence basically compels that such things are unconstitutional even if the somewhat opaque language makes upholding laws against selling sex toys somewhat (only somewhat) not risible.
It is appropriate to focus on seclusion and consensual choice, not just the home. Thus, the USSC split but 5-4 on upholding a ban on expressive nude dancing though in time it went down to 6-3 (the book missed Souter's change of heart, but two other votes changed too) -- Justice White noted that even though it was a "public place," the nude dancing should be protected given the presence of consensual adults. Practice protecting even public sex in secluded portions of parks also is noted. A misguided view of "private" v. "public" would hold that AA meetings or doctor appointments are purely "public" since they take place in "public" places not in pure secrecy. See, e.g., Justice Rehnquist's dissent in Roe v. Wade!
Nonetheless, I do think she might go too far in respect to sex clubs. She too blithely notes that even if there is a real risk of STDs, including AIDS, consent should be the test. What about the danger of spreading it to others, such as unknowing spouses and significant others? There are criminal laws for that. That made me say "oh come on!" Such laws are rather unenforceable -- how do you prove (1) the person knew they are infected (2) fraudulently had sex with a partner, who did not knowingly accept the risk? Like anti-prostitution laws, the better argument to me seems to be that the alternative to a regulated sex club is less safe.
[And Also: Another problem with her "solution" (which she very well might not be too serious about, just using it as a means to answer a possible criticism) is that many who otherwise are sympathetic to her p.o.v. do not like such laws. On Gay USA recently, e.g., a host made it clear that he opposed a prosecution regarding someone not telling a partner of his HIV status, apparently fearing the negative results of regulating things that way. Such concerns need to at least be referenced if this is put out there as an adequate alternative to a ban.
The fear would be that criminal law would lead to counterproductive results, including such people not getting health care since they fear criminal sanction for not being fully open to the right parties about their status. At the very least, a purely for-profit sex club without heavy regulation very well is a tricky case, opening up chance of spreading of sexual diseases given the high volume of anonymous sex, including to third parties who are not told and restraints on that are in practice pretty weak.]
The book does helpfully discuss the complexities of "private" and "public" -- from purely private in the seclusion of one's home to consensual behavior in public places to the sort of truly "nuisance" and generally harmful type behavior that is appropriately regulated or even banned. SSM is an example of how Lawrence left open something that the opinion specifically did not decide -- it even said it was not deciding the question. But, like other rulings, the opening was obviously there using the overall logic of the ruling. "Public" behavior of other types will also arise soon enough, if it is not already in various respects.
It is also interesting that the book does not seem to have dealt with at all with transsexual issues at all. Alternative sexual behavior was dealt with a bit along with nude dancing, but I can see that -- the book is after all about sexual orientation specifically. Nonetheless, the "GLBTQ" acronym alone suggests that transsexual and to some degree "queer" or "questioning" (however one defines the "q") is worth a bit more comment, perhaps. Even in a small book of this sort.