The Good - Last week, the Virginia Supreme Court ruled that the state's fornication law was invalid. The ruling was based on the precedent of Lawrence v Texas which overturned the nation’s sodomy laws and was part of the reasoning behind the Massachusetts’ court decision to allow same-sex marriage. Harvard Law Professor and FindLaw columnist Joanna Grossman:
"...fornication laws are a relic of a past in which most non-marital sexual conduct was considered criminal behavior. Yet laws still persist on the books in about twenty percent of the states. Virginia was right to invalidate such an antiquated law, and other fornication laws, if challenged in court, are very likely to be invalidated as well.
The Bad - Last week in Pennsylvania U. S. District Judge Gary L. Lancaster, a Clinton nominee, dismissed federal obscenity charges against a hard-core pornographic video business that produces and distributes graphic videos depicting rape and murder (the decision and news links are gathered here). From Monday's Nightline transcript:
JAKE TAPPER (Voice Over): Judge Lancaster...repeatedly referred in his ruling to the 2003 US Supreme Court decision in Lawrence V. Texas, which struck down that state's law against gay sodomy. Though, the minority on the court argued the state had the right to establish a moral code, they lost.
The Ugly - Allow gay tolerance and you have to allow "bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity," Scalia wrote in the Lawrence dissent. This case appears to confirm that; not good for gay people. And it shouldn't come to pass. Joanna Grossman again:
[Scalia] certainly overstated Lawrence's intended scope, and he probably overstated its eventual reach as well.In truth, laws against sodomy and fornication are the only sex laws that do not implicate any of the boundaries the Supreme Court tried to limn [sic] in Lawrence. The Court strongly suggested that laws affecting the institution of marriage, involving minors, or involving sexual activities that are conducted in public or for commercial purposes would not be within the bounds of the "private relationships" protected by the Fourteenth Amendment - and thus will not be struck down under a Lawrence-like analysis.
I hope she's right.
A liberal gay man, I have no problem with indecency. Pornography either. Obscenity of the kind we're talking about here is another matter entirely. I am squarely against it. I have no first amendment or privacy problem with outlawing it. We are not talking about conduct merely "deemed offensive to the general public's sense of morality." We are talking about something more. Defining that is the trick, but we must.
My experience is that what most people consider obscene is in fact merely indecent. We think indecency is what we hear in the news raised by PTC & the FCC, but that is in a broadcast context not relevant here. I worked in Public Access Television for 12 years and sat on the Board of Manhattan Neighborhood Network for 8. There we were not bound by broadcast standards and as a consequence were forced to show programming that was legally indecent. Most people reading the definition of obscenity believed what they were seeing on those cable channels was in fact obscene. It was not.
I will have more on the First Amendment, the notion that only by protecting the most egregious speech can we protect all speech, and the particular obscenities of the Extreme Associates case in future posts.
Edited for clarity.
Unbelievable about Virginia. I lived there for 6 years, and this is HUGE progress. I will have to inform my friends.