How Our Sexuality Is Being Restricted One Bad Law at a Time
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With anxiety and anger about sexuality reaching a noisy crescendo, Congress members and state legislators are responding with laws that placate the mob du jour -- laws restricting sexual expression that have little chance of surviving even the lightest Constitutional scrutiny.
For example, Congress has passed law after law attempting to rid the Internet of pornography. Texas recently passed a law requiring strip clubs to pay a special tax of $5 per head (no jokes, please). This spring, Indiana passed a law requiring vendors of "sexually explicit" materials to register with the state and pay a $250 fee.
But every federal law censoring the Internet has been derailed by a court. The Texas law was overturned by their Supreme Court just two months ago. The Indiana law, you can be sure, will be overturned before Labor Day.
All because of "activist judges." You know what an "activist judge" is -- a judge who decides that a law you like happens to be illegal. And more often than not, that illegal law concerns sex.
Most people understand that Congress can't pass a law reinstituting slavery -- and that if it did, a court would overturn it. Similarly, most Americans understand that their state legislature can't authorize murder, or require all its residents to eat beef to qualify for a driver's license.
Unfortunately, most Americans can't actually explain why certain laws cannot be established, no matter how much the public supports those laws.
The explanation is that we live by a set of rules -- the Constitution and its Bill of Rights -- that elected officials simply cannot violate, even when implementing the people's will.
Unfortunately, many Americans think their representatives should be allowed to trample these Constitutional rules when they're upset about sex. Sexual danger. Sexual fear. Sex panics break out, the people moo loudly. The Republic's in danger: there's a nipple on TV. Teens are getting birth control. There are lesbians in the Army. Sexuality is considered a public health menace, and many people want tough (albeit illegal) laws to battle the epidemic.
Legislators acquiesce, passing laws in response that break the larger, Constitutional rules.
When these laws are successfully challenged, counties and states face huge legal bills (Florida's municipalities spent over $10,000,000 last year fighting for bans on strip clubs, thong bikinis, adult bookstores, and the like), and everyone's time is wasted. But legislators win big even when their laws are losers.
"Don't blame me," they tell the angry electorate, "I voted for a law you demanded that would protect our children, but those snooty judges decided you citizens couldn't have the laws you asked us to pass. You might as well live in Russia."
This is legislative cowardice. Most lawmakers are lawyers. They can generally guess which new laws won't stand up. They vote for the laws anyway, watch them (predictably) get overturned, then blame the courts, the ACLU, and "liberal" plaintiffs (bookstores, strip clubs, a student who simply wanted birth control). Doing this with "porn," for example, has been good for many legislators' careers; Kansas Senator Brownback and California state senator Calderon, for example, both made their political fortunes from violating their oath of office.
Passing popular but constitutionally suspect laws can also be part of a testing process. If a questionable law survives a state court challenge, allied sponsors try to get them passed elsewhere (a popular strategy with laws restricting abortion). If a law is overturned, sponsors attempt to learn from the experience, reshaping the law and trying it elsewhere. This has been popular with theo-conservative legal groups like the American Center for Law & Justice and the Community Defense Council, who promote model ordinances designed to eliminate adult entertainment and to diminish church-state separation.
Americans frightened about sex and angry about "activist courts" need a civics lesson: what exactly is the role of our courts, and why do they sometimes challenge or negate the obvious will of the majority?
The answer is a 2,000-year-old concept called the Separation of Powers. A centerpiece of American government, we didn't invent it -- the Romans had it in their constitution. This revolutionary idea gives an independent judiciary responsibility for reviewing laws made by an executive or legislative branch. Under this system, courts are mandated to judge whether individual laws break the ultimate law -- the Constitutional rules of the legal system itself.
Not everyone thinks this is a good idea. Some opponents reject the idea that the majority's will can be wrong. Other opponents dislike the idea that a minority (say, a religious or ethnic group) has institutionalized rights distinct from those granted it by the majority.
Proponents of the system believe that the Separation of Powers protects democracy and prevents tyranny.
So hey America, democracy does not mean the majority can create any laws they want. It means they can pass any laws they want within our Constitution's wonderful, far-sighted limits. Democracy is not three wolves and a lamb voting on who gets eaten for dinner.
Legal analyst Mark Kernes notes that our Constitution doesn't deal with morality -- it only deals with rights and privileges. "And morality often conflicts with rights and privileges," he notes. Morality says 'you may currently have the right to do X, but you shouldn't do X.' But in relying on morality for governance, however, some people then make the leap that if you shouldn't do X, you shouldn't have the right to do X. Contemporary examples include virtually anything relating to sexual expression: abortion, pornography, "sex words" on TV, swingers' clubs, productions of The Vagina Monologues.
That kind of thinking leads to exactly the kind of laws that will be overturned by a clear-thinking court.
Many Americans are too civically immature to understand that their alarm, anxiety, and anger about sex do not justify suspending the Constitution. Predictably, they also get the lawmakers they deserve. These elected charlatans pander to their constituents' fear, pretend to do something efficacious, and when it predictably fails Constitutional scrutiny, argue "hey, I tried to do what you wanted, but due to a flaw in the system, we both end up victims."
California Chief Justice George, of course, sees the opposite: "Basically, it comes down to the question of when is a judge shirking his or her responsibility by not acting," he said about his decision to overturn California's ban on same-gender marriage.
No, judges overturning bad laws isn't a flaw in the system; it's the success of the system.
The adult fruits of democracy require that people be able to comfort themselves when their emotions want something their political system can't -- and shouldn't -- provide. And with the continuing polarization of the country (many people no longer believe there's such a thing as objective news), Americans are finding it harder to imagine objective judges. This makes it especially good for the nation that so many recent decisions with progressive impacts (California's gay marriage ban, Lawrence v. Texas , Internet censorship) were issued by conservative Republican judges.
It's good for the nation because too many people now suspect ideological motives when judges overturn popular laws. James Dobson, Phil Burress, Robert Peters, and other conservative leaders consciously encourage this awful notion. Family Research Council President Tony Perkins, for example, ludicrously says "The federal courts, and the Supreme Court in particular, have systematically attacked Christianity." By undermining faith in our judiciary, he is undermining democracy in America.
But because Perkins and other policy conservatives complain about sex-related issues, they get a free pass on their civic crime.
Too many decision-makers, and the mass media that support them, seem to feel that no law is too extreme if it addresses Americans' anxiety or anger about sexuality. As this anxiety and anger increase, so do the number and intensity of the laws passed in response: the punitive, fear-mongering Adam Walsh law; restrictions on fantasy online conversations; bribes to public libraries that would censor their computers; record-keeping laws for porn distributors that no hospital, car company, or nursery school would ever be expected to meet.
The courts have protected Americans from their own frightened, bloodthirsty demands by ruling against various state, federal, and local laws restricting sexual behavior, education, health, and speech.
But not nearly enough of these laws have been nullified as unconstitutional. Because America simply doesn't have enough "activist" judges to go around.
Dr. Marty Klein is a California-based policy analyst and author of the recent book America's War On Sex: The Attack on Law, Lust, & Liberty.