Russell and Duenes

As Long As It’s Between Consenting Adults

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Having considered the Supreme Court’s rulings in Griswold v. Connecticut, Eisenstadt v. Baird, Roe v. Wade, Bowers v. Connecticut, Casey v. Planned Parenthood, and Lawrence v. Texas, one thing seems to be coming clear: The Court is sweeping away virtually every legal justification for regulating private sexual behavior. The above cases, whether it be the majority opinion or the dissent, have argued that the State can give no compelling reasons for outlawing any sexual behavior in which “consenting” adults wish to engage in private. Thus far this would include the use of contraception, sodomy and abortion.

But, as Princeton professor, Robert George argues, there is no reason to think that the Court will stop with these. Indeed, it is virtually certain that they won’t, given the premise that “consent” is the only standard by which to judge private sexual matters. He writes,

Fundamental social libertarians hold that acts of any type, including any type of sex act, should be legally permissible so long as the parties involved consent to participating in them and others are not directly harmed. Those who believe that the founding fathers wrote the ideology of fundamental social libertarianism into the Constitution (albeit with invisible ink) maintain that the constitutional right of privacy immunizes all consensual sex acts from state prohibitions. If this is true, then not only sodomy, but also fornication, adultery (e.g., spouse swapping, “swinging”), polygamy, group sex, prostitution, adult brother-sister or parent-child incest, and (depending on one’s views about the rights of animals and their capacity to consent) bestiality are protected as specifications of the constitutional right of privacy. All of these acts and practices are, or can be, consensual. If consent provides the standard of inclusion within the right of privacy, they must all be admitted.

As far as the Court is concerned, moral or spiritual disapproval is no longer grounds for legislating against certain behaviors. What must be found is a “compelling state interest,” which means, a secular interest. And of course, no such interest can be found, which is why, as Dr. George rightly points out, everything is reduced to “consent.” He concludes,

No non-arbitrary grounds will be available for deciding that sodomy and fornication are “in,” but consensual adultery, group sex, commercial sex, etc., are “out.” The rational pressure for consistency will move courts in the direction of imposing by judicial fiat the agenda of fundamental social libertarianism.

-D

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Written by Michael Duenes

October 13, 2010 at 7:17 pm

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