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February 14, 2008

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“the right to stimulate one’s genitals for non-medical purposes unrelated to procreation or outside of an interpersonal relationship.”

Hurrah.

Unelected tyrants in long black robes, wielding a horrid arsenal of emanations and penumbras, have unleashed the forces of darkness upon the great state of Texas:
When I first read that I thought you were talking about that somewhat whimsical/bizarre Cheney-as-Cthulthu joke comment I made yesterday. I am relieved. Texas criminal statues are equally whimsical/bizarre as an H.P. Lovecraft story -- the Supreme-Court-annulled anti-sodomy law is still on the books, for no good reason except to make us look dumb.
It's a good illustration of a basic point of legal reasoning: that a lot depends on how you describe a supposed right.
Actually, I think this is an illustration of an even more basic point of legal reasoning than that: the fact that your argument isn't sanctionable doesn't mean it's not totally moronic.

Incidentally, Jes, this is a perfect example of what I was trying to express to you the other day: a legal argument that is defensible, but at the same time, utterly wrong. I doubt anyone will get sanctioned for positing the penumbral Right of Onanism, but while being one or two notches above "utterly fatuous" on the logical-argument scale might get you into court (or at least not get you kicked out), it's a long way from being a game-winner.

Finally got that one off the books.

For those not in the know, it was perfectly legal to sell a vibrator in Texas prior to the ruling, so long as it was for "educational purposes."

Finally got that one off the books.

For those not in the know, it was perfectly legal to sell a vibrator in Texas prior to the ruling, so long as it was for "educational purposes."

Educational or medical.

"Officer, I have greensickness. It says right here in this 19th-century medical textbook that masturbation is the cure."

…lend obscene devices…

Ewww.

But now, people will be free to own more than six such devices

As long as they don't have pistol grips, flash suppressors, or can operate in automatic mode, I have no problem with that.

…lend obscene devices…

Ewww.

I wonder if it was legal to rent them out?

Just looking for OCSteve's vomit threshold, here.


As long as they don't have pistol grips, flash suppressors, or can operate in automatic mode, I have no problem with that.

Hmmm, need to call in the NDA.

The idiot Attorney General here in Alabama must be feeling rebuffed, since he's made a crusade of stamping out the sex toy scourge. Not that he's likely to stop until a court makes him specifically.

Now, why did this even have to go to the courts? Because the two major parties are terrified of defending personal liberty in any way that may be untraditional or frowned upon by polite society.

Just looking for OCSteve's vomit threshold, here

Hadn’t had breakfast yet fortunately…

We actually had quite a dust up here last spring. A sex shop opened up very quietly and people freaked. Now this is a very blue state and the town is controlled by Democrats. But the resort also prides itself on being very family oriented.

People freaked and the City Counsel decided to get rid of the shop. To their consternation they could not find anything on the books to prohibit such shops.

So they passed an emergency moratorium on new sexually oriented stores while they redraft the zoning ordinances.

All in all it’s been high entertainment value for me. Let’s forget the fact that people walk around all summer in next to no cloths. Let’s forget that the summertime is 4 months of generally drunken debauchery. Let’s forget that we lure thousands and thousands of teens here every spring and mostly look the other way at the shenanigans and under-age drinking. Let’s forget that there is a big movement to bring slots to the area.

Can’t have an adult store. It’s for the children don’t you know.

"The Constitution does not mention X, so how can there be a constitutional right to X?"

wasn't that the kind of argument the Talibans made to ban things like radio and stuff ?

"Let’s forget the fact that people walk around all summer in next to no cloths. Let’s forget that the summertime is 4 months of generally drunken debauchery. Let’s forget that we lure thousands and thousands of teens here every spring and mostly look the other way at the shenanigans and under-age drinking. Let’s forget that there is a big movement to bring slots to the area."

Yes, but if another of those stores was let into town, people might start having sex.

Or thinking about it, anyway.

Eeeeuuuuw, sex. Who wants to think about that?

Fortunately, banning more such stores will prevent all that.

Kristof is so downbeat, today. Why does he hate America?

Glad someone else noticed the "lend" provision -- that's just icky.

Although, it has made me take a second look at the annoyance factor that comes into play when my neighbor asks to borrow my lawn mower. I mean, it could obviously be worse.

Especially if you've ever seen my neighbor.

**shudders**

Loved the punch line in the Ivins extract.

I wonder about possession crimes in general. What was their history before the Prohibition? Regulate the sale in a state--sure.

Maybe it is just a failure of knowledge or imagination, but it strikes me that the idea that you could ban the personal ownership of 'stuff' of almost any kind would strike an early American as a very odd proposition.

Congratulations to the Texas plaintiffs. The Fifth Circuit opinion is well reasoned and properly addresses the privacy issues in a manner better than the majority in Lawrence v. Texas.

There is a direct conflict between this opinion and that of the Eleventh Circuit in the Alabama case. It will be interesting to see whether the state seeks certiorari; if so, there is a real danger that the Supreme Court will use this case as a vehicle to limit or modify Lawrence.

A sex shop opened up very quietly and people freaked. Now this is a very blue state and the town is controlled by Democrats. But the resort also prides itself on being very family oriented.

We actually had a campaign last November where you could get a new vibrator in exchange for your old one. Big billboards through Amsterdam, lines of people waiting before the shop, thousands of exchanges...

For those who understand Dutch I can link to the action site. Beware, they will start a streaming video at the bottom of the page.

We actually had a campaign last November where you could get a new vibrator in exchange for your old one.

Dan Savage has a really good sex-toy recycling tip that's relevant to this post's topic.

MarkD: Does your lawn mower have a "vibrate" mode? And if it does, what brand is it? (Gotta git me one while it's still legal!)

how about
"I have Hypotrichosis (lack of hair on the body) and I hear that masturbation causes hairy palms - so just a little extrapolation and I decided to self medicate...."

Finally, the horny will be able to get relief.

I've always managed to get relief without any mechanical assistance at all. Maybe I'm one of the lucky few, though.

Well, everything's bigger in Texas...

I'm shocked, SHOCKED, that no one beat me to:

"Just in time for Valentine's Day!"

I see. Waxing the porpoise, then, might become an exhausting chore without power tools?

Yes, but if another of those stores was let into town, people might start having sex.

Much worse. All those young, nubile, semi-intoxicated girls would have an alternative to sex. What would that do to property values?

the Supreme-Court-annulled anti-sodomy law is still on the books, for no good reason

Not for no good reason, but for a very good reason, and the same reason that state anti-abortion laws are kept on the books.

By this device when a Godly Supreme Court is finally formed, and the abomination of desolation (Lawrence v. Texas, Roe v. Wade, , etc) is overturned, the state laws will take immediate force.

These people play a long game.

Italics OFF!

All this cringing about the 'lend' provision... Don't any of you people wash your appliances?

This ain't exactly Ironsides' coffee pot, ya know.

"Italics OFF!"

Did you get the italics off by hand or with the help of newly decriminalized hardware?

===

Long may Molly be remembered!

Can I borrow your toothbrush, Barrett? Never mind what it's for.

It is possible the anti-lending provisions were added to the law not because lending is common but in order to prevent stores from circumventing the ban on sale. One can imagine stores offering to "rent" new devices for a period of 100 years while charging the same prices as a sale and throwing away any that were returned.

>Anyone in possession of six or more... is considered to be promoting them.

Does that go for guns, too?

Not for no good reason, but for a very good reason, and the same reason that state anti-abortion laws are kept on the books.

I posit that your "for when we get God's Law back" and my "to make Texas look dumb" arguments are not at all incompatible, nor perhaps even distinct.

These people play a long game.

A long, hard, throbbing... wait, what were we talking about?

Did you get the italics off by hand or with the help of newly decriminalized hardware?

I've got a special appliance that's hooked to my Wii (as the kids call it these days) and Teh Internets. It really gets my italics off in a VERY special way!

"It really gets my italics off in a VERY special way!"

It's very bold of you, but if you keep it up, you're going straight to helvetica.

Waxing the porpoise, then, might become an exhausting chore without power tools?

You think it's hard waxing a porpoise without power tools? Try heating tuna by hand.

It's very bold of you, but if you keep it up, you're going straight to helvetica.

And I'd just like to underline that these are serious times; from the streets of chicago and georgia to the halls of geneva, couriers of hope must align against the dingbats, outline their position, and justify their impact.

100% OT: Someone has *got* to explain to me why the hearing yesterday broke down along party lines. How is it that Republicans are tough on drugs except when rich, famous white men do them? Then, in that case, they'll doubt anyone's who bringing evidence against them.

Maybe Bush should threaten to preemptively pardon anyone who speaks before Congress unless he gets his wiretap bill. That way, he'll nullify Congress's ability to put people under oath.

It's very bold of you, but if you keep it up, you're going straight to helvetica.

And I'd just like to underline that these are serious times; from the streets of chicago and georgia to the halls of geneva, couriers of hope must align against the dingbats, outline their position, and justify their impact.

You're a font of suggestions, and it's very avant garde of you, but I prefer lighter, more condensed, conversation. I'm just that type.

But, alas, I must be off, like widows and orphans chased by the hound of the Baskervilles itself, sans symbols. Sometimes I almost feel like a new Roman in these nearly Gothic times.

I hope I haven't been overly leading; I wouldn't want to alter your alignment, even by a pica, nor strain a ligature.

But as I always say, lorem ipsum. Que serif, serif.

Someone has *got* to explain to me why the hearing yesterday broke down along party lines. How is it that Republicans are tough on drugs except when rich, famous white men do them?

The trainer's lawyer claimed that Clemens is a friend of the President's. No idea if that's true.

Oh fnck, not another puns thread.

*hides under desk*

The trainer's lawyer claimed that Clemens is a friend of the President's. No idea if that's true.

They did coke together????

"How is it that Republicans are tough on drugs except when rich, white men do them."

I'll have you know that Dan Burton put in a couple of hours in his back yard last Saturday getting ready for the hearings by injecting a casaba melon with human growth hormone and steroids.

The melon showed no signs of improved reflexes but George Steinbrenner sent some scouts down to check out its fastball because the Yankees are short on pitching.

Burton's wife stuck her head out the back door and asked, "Honey, did they find Vince Foster's body again?

"six or more sexual devices"

Well, given the border Mexico shares with Texas, I suggest the new fashion will be the quickdraw dildo bandalero with matching mesh battery bag for the woman who won't leave home without it, or maybe for the woman who does leave home without it but doesn't care because we don't need no stinking men now that we're allowed the full outfit.

I wonder if Bill's unified theory of friction applies here? :)

"Someone has *got* to explain to me why the hearing yesterday broke down along party lines. How is it that Republicans are tough on drugs except when rich, famous white men do them?

The trainer's lawyer claimed that Clemens is a friend of the President's. No idea if that's true."

Actually, if you look at the Slate article, supposedly (1) Clemens is a close personal friend of Bush I, and (2) Big-time pro athletes tend R, (vs., i.e., big-time hollywood). Apparently, in the current climate that is all it takes to turn something into a partisan issue - go Obama.

Sorry, I'm not very good at this and don't know how to do links, or italics.

"Sorry, I'm not very good at this and don't know how to do links, or italics."

See here. All you need to know is " Link Something," italics, and blockquoting. Blockquoting and italics aren't essential. You can ignore all the rest.

Dildo anxiety dates back a long time.

I'm not certain I understand the blog rules, so I'll ask: is it correct that we can use "dildo" literally but not metaphorically?

Mike: As dildo doesn't (to my mind) count as profanity, you can use it any way you want, except in ways that violate a different rule (e.g., I suppose there would be some way of using the word dildo in the course of consistently vilifying another commenter, or maybe even calling for someone's assassination, and those would be out...)

Assassination by dildo? The mind reels.

I mention this only because I'm tired of hearing arguments of the form: The Constitution does not mention X, so how can there be a constitutional right to X?

Doesn't the Ninth Amendment pretty specifically say that this kind of argument is invalid?

Assassination by dildo? The mind reels.

Actually, in Ken Russell's Crimes of Passion, Kathleen Turner kills Anthony Hopkins with just such an implement. In Lock, Stock and 2 Smoking Barrels, one of the characters is said to have bludgoned someone to death with one.

So, all that's left is to think of an interesting latin term akin to defenestration. Any ideas?

lj, it did occur to me that it is ... well ... a blunt instrument.

Crimes of Passion

Oh, man Kathleen Tuerner was at her most TOTALLY SMOKING HOT.

Don't bring up dildo slayings, ruins the buzz. And that was Tony Perkins btw.

Arrgh, I type Anthony and Hopkins just followed. Grrr.

[...] Crimes of Passion

Oh, man Kathleen Tuerner was at her most TOTALLY SMOKING HOT.

Once again, you are wrong.

Body Heat, without doubt.

That wig really wasn't flattering.

Best performance, on the other hand, might be Prizzi's Honor, might be this.

How is it that Republicans are tough on drugs except when rich, white men do them.

In all the years I was a Republican, I was never done by a rich, white man.

Not that I remember, anyway.

Maybe that's why you could have used six sexual devices...

Oh, antecedent problem, maybe. How embarrassing.

BTW, all this "six sexual devices" tongue-twistery reminds of this, perhaps the greatest moment in the greatest episode of Pinky & The Brain.

[Ok, it's actually two moments. Whatever. The important thing is that it's awesome.]

I’m all about market solutions.

Maybe if American males would spend less time learning to “Respond to Sally” a la our pharmaceutical industry and just tear into her, the market for these sex toys would vanish.

Bill’s solution satisfies everybody.

"The important thing is that it's awesome."

Genius, truly. Clearly influenced by this, I think, but with additional layers.

Dildo anxiety from the eighteenth century is not a long time ago. Dildo anxiety from the ninth century is. (You have to scroll down to where Hincmar says 'Women also have this sordid appetite').

Maybe if American males would spend less time learning to “Respond to Sally” a la our pharmaceutical industry and just tear into her

This reminds me (with apologies to our Irish readers) of the joke about Irish foreplay:

"Brace yourself, Bridget!"

But, you know, chacun a son gout.

Thanks -

Assassination by dildo? The mind reels.

See also the Val Kilmer classic, Top Secret!

Somes folks are still a step or two behind.

It had to be Rep. Mike Simpson (R-ID) who's name was missing, no?

Ugh.

Not that I agree with laws restricting the sale of sex toys, but how does such a law "violate due process?" Violating due process, as far as I understand it, means not using the correct procedure to try or convict someone of a crime, or not using the correct means to procure evidence.

"Due process" here is expanded to mean "restricts behavior in a way I don't like." If you accept that the right to own sex toys is part of due process, why shouldn't I be able to successfully claim that I have the "due process right" to discriminate against blacks, or to not pay taxes?

On what basis do anti-discrimination laws or paying taxes not violate "due process," other than an arbitrary decision that you don't like anti-sex toy laws and do like anti-discrimination laws and requiring people to pay taxes?

It seems to me that the general opinion of most judges has become that "due process" guarantees the rights they would have written into the Constitution, and does not guarantee the rights that they dislike.

And once you start interpreting the Constitution arbitrarily, why bother have a written constitution at all? Indeed, why bother have laws at all, and not simply a declaration that judges are royalty who are allowed to rule according to their whims?

Now, depending on the way that the constitution of Texas is worded, it might be possible to show that nowhere is the state given the authority to restrict the sale or possession of sexual devices. If the law is struck down on grounds such as that, this would be a fine thing. (Although this ought to be a state, not a federal issue).

"Not that I agree with laws restricting the sale of sex toys, but how does such a law 'violate due process?'"

I assume that this wasn't a rhetorical question, purely for effect, and that you were interested in the answer, and so read the cited opinion, and the explanation therein:

[...] The State argues that Plaintiffs, who distribute sexual devices for profit, cannot assert the individual rights of their customers. This argument fails under the Supreme Court precedent holding that (1) bans on commercial transactions involving a product can unconstitutionally burden individual substantive due process rights and (2) lawsuits making this claim may be brought by providers of the product. In the landmark 1965 case of Griswold v. Connecticut, which invalidated a ban on the use of contraceptives, the Court recognized that the plaintiff pharmacists “have standing to raise the constitutional rights of the married people with whom they had a professional relationship.”21 Other Supreme Court cases hold that businesses can assert the rights of their customers and that restricting the ability to purchase an item is tantamount to restricting that item’s use.22 In line with these cases, the statute must be scrutinized for impermissible burdens on the constitutional rights of those who wish to use sexual devices.

[...]

The right the Court recognized was not simply a right to engage in the sexual act itself, but instead a right to be free from governmental intrusion regarding “the most private human contact, sexual behavior.”

[...]

Because of Lawrence, the issue before us is whether the Texas statute impermissibly burdens the individual’s substantive due process right to engage in private intimate conduct of his or her choosing. Contrary to the district court’s conclusion, we hold that the Texas law burdens this constitutional right. An individual who wants to legally use a safe sexual device during private intimate moments alone or with another is unable to legally purchase a device in Texas, which heavily burdens a constitutional right. This conclusion is consistent with the decisions in Carey and Griswold, where the Court held that restricting commercial transactions unconstitutionally burdened the exercise of individual rights. Indeed, under this statute it is even illegal to “lend” or “give”

Which part do you take exception with, in the context of the whole decision?

Oops, left out the last part of what I intended to quote:

a sexual device to another person.29 This further restricts the exercise of the constitutional right to engage in private intimate conduct in the home free from
government intrusion. It also undercuts any argument tha tthe statute only affects public conduct.

Which part do you take exception with, in the context of the whole decision?

The concept that "the right to engage in private intimate conduct of his or her choosing" has anything to do with "due process."

Everything you quoted is based on bad precedents where the term "violates due process" was twisted to mean ""restricts behavior in a way I don't like."

Again, this makes "due process" a cipher into which you can arbitrarily read your preferences into the Constitution.

[...] Everything you quoted is based on bad precedents where the term "violates due process" was twisted to mean ""restricts behavior in a way I don't like."
I don't think you'll get many lawyers to sign up for that interpretation. The precedents are far more narrow.

But IANAL, so perhaps one of the lawyers here would like to comment.

Specifically: "This argument fails under the Supreme Court precedent holding that (1) bans on commercial transactions involving a product can unconstitutionally burden individual substantive due process rights and...."

I take it you object to that precedent, and hold that bans on commercial transactions involving a product are perfectly constitutional?

"Doesn't the Ninth Amendment pretty specifically say that this kind of argument is invalid?"

Yes.

In fact, some of the states refused to ratify the Bill of Rights until the Ninth Amendment was added, precisely because of the fear of literalists.

Which means many times the greatest impediment to the Original Intent of the Founders (Ouija board piloted by Nino Scalia) is... Originalists.

Go figure.

Here's the Ninth, in full:

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

I take it you object to that precedent, and hold that bans on commercial transactions involving a product are perfectly constitutional?

Depends on the Texas constitution. A federal ban on anything other than transport across state lines for commercial purposes would be unconstitutional as the federal government does not have the authority to regulate intrastate trade. If it is transported across state lines I suppose the U.S. could ban it, although one might argue that banning trade is not covered as part of constitutional regulation. Either way, it has nothing to do with "due process."

Hal O'Brien:

I always saw the Tenth Amendment as suggesting that the Ninth Amendment was to apply only to the Federal Government.

In any case, I haven't seen many courts ever protect a non-enumerated right on ninth amendment grounds.

And I will take liberals' commitment to the Ninth Amendment seriously on the day that they find all antidiscrimination laws that impact private businesses to be unconstitutional because they restrict freedom of association. Or the day that they start respecting the Tenth Amendment and abolish all of those agencies (Dept. of energy, Dept. of Education, etc.) that are not authorized under the Constitution.

"I always saw the Tenth Amendment as suggesting that the Ninth Amendment was to apply only to the Federal Government."

Well, that's an interesting activist interpretation.

It's not what the document strictly says, however.

The Tenth begins, "The powers not delegated to the United States by the Constitution..." -- immediately after the Ninth has delegated powers to the United States.

The order matters.

"In any case, I haven't seen many courts ever protect a non-enumerated right on ninth amendment grounds."

Which only goes to show how activist the radical Republican judiciary is. (There not being any genuine conservatives in America.) {shrug} And?

"...all antidiscrimination laws that impact private businesses (are) unconstitutional because they restrict freedom of association."

That freedom has been modified by the Equal Protection clause of the 14th Amendment. There has been nothing subsequent repealing that modification. If you want to run for Congress and introduce an Amendment repealing the 14th, I invite you to. (Lots of luck.)

In the meantime, those few of us who remain constitutional conservatives will have to labor on, despite people like you who give us a bad name.

"If it is transported across state lines I suppose the U.S. could ban it, although one might argue that banning trade is not covered as part of constitutional regulation."

Article I, Section 8, Clause 3 lists among Congress' powers: "To regulate Commerce... among the several States..." If you can explain how one can have the power to regulate without also having the power to ban, that might be good for a giggle.

Oh, and here's a pointer to the National Archives' transcript of the Constitution, given how unfamiliar you appear to be with the document throughout this discussion.

That freedom has been modified by the Equal Protection clause of the 14th Amendment.

No, it hasn't. The Fourteenth amendment says that all laws shall apply equally, not that all people must be treated equally by private entities.

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