I should have made it clear that I was talking about something other than
the exact holdings; *Meyer* and *Pierce* speak broadly of rights to
marriage, to raise children, to pursue an occupation etc., a theme picked up
in *Skinner,* *Loving*, *Griswold*, etc. This of course means that
language in one case may appear in another to expand a right under SDP (or
other provisions).
----- Original Message -----
From: "Ilya Somin" <[EMAIL PROTECTED]>
To: <[EMAIL PROTECTED]>
Sent: Thursday, June 26, 2003 2:58 PM
Subject: Re: Lawrence and the boundaries of logic
> THis is probably an inadvertent misstatement, but I don't see how Meyer
> (striking down a ban on teaching children in German) and Pierce (striking
> down a ban on private schooling), "have to do with adult consensual sexual
> relations," unless the concept of sexual relations is defined very
> broadly:). The other cases Lynne cites are of course on point.
>
>
> Ilya
>
>
>
> On Thu, 26 Jun 2003, Lynne Henderson wrote:
>
> > The court undoubtedly would mention consent and harm to others in
> > distinguishing adult, consensual sexual relations in privacy from incest
and
> > adultery --and perhaps defense of marriage. The "consent" aspect of
incest
> > is that: with children and incest, the problem is power relations and
lack
> > of emotional and cognitive skills; despite NAMBLA and others assertions
> > that children just can consent and derive erotic pleasure from contact
iwth
> > adults, the evidence is against such claims (see below) In terms of
adult
> > incest, there are real genetic concerns, which at leas traise an
important
> > state interest, as well as residual power concerns. On adultery, the
damage
> > is to marriage, a state institution, with an "innocent' third party
> > although arguably no-fault divorce and repeal of adultery laws cut the
other
> > way) Meyer and Pierce certainly do not stand for "nontraditional" ways
of
> > relating within a family, and they have not been read to preclude state
> > intervention in abuse and neglect cases.
> >
> > I cannot let the psychological claims in Michael's e-mail go
unaddressed,:
> > In the past 13 years, there has been a considerable amount of
controversy
> > over "child sexual abuse". The Rind study mentioned in the e-mail is
deeply
> > flawed: for criticisms, see Dallam, Gleaves, cepeda-Benito, Joyanna
> > silberg, Helena Kraemer & David Spiegel, *The Effects of Child Sexual
Abuse:
> > Comment on Rind (et al)*, 127 Psych Bulletin 715 (2001) See also
Charles
> > Whitfield, MD, Joy Silberg, PhD, & Paul Fink, MD, *Misinformation
Concerning
> > Child Sexual Abuse* (Haworth Press 2002), See generally sources cited
and
> > summarized at www.leadershipcouncil.org . Sexual abuse hurts children,
and
> > hurts them badly. The psychologist who says it is the stigma and not
the
> > actual abuse that causes the harm is operating from a 1950s assumption
> > (resurrected in the past 10 years by those seekign to deny that there is
> > harm.) Shameless self promotion: see Henderson, *Without Narrative:
Child
> > Sexual Abuse*, 4 Va. J. Social Policy & L (1997).
> >
> > To tie this all to con law: Context/facts do matter, and incest and
child
> > sexual abuse --and adult rapes--can be distinguished from the conduct
> > prohibited in *Lawrence* *Meyer* Pierce* *griswold* and *Eisenstadt*
all
> > have to do with adult consensual sexual relations. I doubt this
Court--or
> > any Court--would suddenly find that the right to privacy extends to
these
> > crimes or battering within the home.
> >
> > Sincerely
> > Lynne
> >
> >
> > ----- Original Message -----
> > From: "Scaperlanda, Michael A" <[EMAIL PROTECTED]>
> > To: <[EMAIL PROTECTED]>
> > Sent: Thursday, June 26, 2003 1:12 PM
> > Subject: Lawrence and the boundaries of logic
> >
> >
> > > The Court says that "as a general rule" the state shouldn't be able to
use
> > > its criminal laws "to define the meaning of the relationship or to set
its
> > > boundaries absent injury to a person or abuse of an institution the
law
> > > protects."
> > >
> > > Could this opinion logically be extended to protect (from criminal
> > > prosecution) intra-familial pedophilia in certain circumstances?
> > >
> > > Consent (or inability to consent) cannot supply the answer. The
citations
> > to
> > > Meyer, Pierce, etc seem to suggest some continued recognition of
family
> > > privacy. In fact, the court says that "In our tradition the State is
not
> > > omnipresent in home." Much of what goes on in the home presupposes
the
> > > inability of the child to consent, giving the parents (within reason -
> > where
> > > are the boundaries??)the room ("both in its spatial and more
transcendent
> > > dimensions") to make decisions in the best interest of the child. The
> > > parents decide whether the child will be raised in a religious or
> > > non-relgious home, whether the child will be taught relativism or
> > > transcendent truth, bigotry or tolerance, etc. Why not include
whether
> > the
> > > family rituals include initiation into the world of sex within the
> > friendly
> > > confines of the family?
> > >
> > > The court does say that this general rule of relational liberty only
> > applies
> > > "absent injury to a person or abuse of an institution the law
protects."
> > > Maybe the state can regulate pedophilia because of "injury to a
person,"
> > the
> > > child? But, Bruce Rind, et al, A Meta-Analytic Examination of Assumed
> > > Properties of Child Sexual Abuse Using College Samples, 124 Psych.
Bull.
> > 22
> > > (1998) suggests (if I remember correctly) that the perceptions of
injury
> > are
> > > overstated. I also have a psychologist friend (and this would be
> > anecdotal
> > > except for the fact that he or someone like him could serve as an
expert
> > > witness on this subject)who says that the only reason most children
suffer
> > > injury from adult-child sexual conduct is because of the stigma
society
> > > places on such contact. "Injury" is a fact question, and I'm not sure
> > that
> > > we can make a conclusive determination as to which way it is decided.
> > And,
> > > as societal values change so might perceptions of injury.
> > >
> > > Or, perhaps, this conduct wouldn't be protected because there is not
> > (yet??)
> > > an "emerging awareness" or an "emerging recognition" in the scholarly
> > > commentary, in the states, and in international and foreign law that
such
> > > liberty ought to be protected.
> > >
> > > If there is such an "emerging awareness" or an "emerging recognition"
in
> > > five, ten, or twenty years, coupled with more studies discounting or
> > > dismissing injury, would Lawrence logically extend to protect
> > intra-familial
> > > pedophilia? Or, to put it in Mark's frameword, does "the government
have
> > > pretty good/really good/compelling reasons to restrict" that liberty?
> > >
> > > Michael Scaperlanda
> > >
> > >
> > > -----Original Message-----
> > > From: Volokh, Eugene
> > > To: [EMAIL PROTECTED]
> > > Sent: 6/26/2003 2:10 PM
> > > Subject: Lawrence vs. Glucksberg
> > >
> > > I'm certainly not going to mourn the demise of sodomy laws,
> > > which
> > > I've long thought were quite outrageous. But I'm wondering about the
> > > boundaries of the majority's logic, and in particular how it relates
to
> > > the
> > > right to assisted suicide rejected in Glucksberg. Wouldn't a right to
> > > decide how to die be as important to one's "dignity as [a] free
> > > person[]" as
> > > the right to build sexual relationships?
> > >
> > > I realize that there are stronger arguments for why the
> > > government
> > > may properly burden or even prohibit the exercise of that right; but
> > > Glucksberg held that the right really isn't protected by anything more
> > > than
> > > a rational basis test, relying largely on the "only traditional
rights"
> > > rationale that Lawrence seems to pretty decisively reject. Is this
> > > still
> > > sound post-Lawrence?
> > >
> > > Eugene
> >
