Posted by Eugene Volokh:
Serious or a Joke?
http://volokh.com/archives/archive_2005_05_29-2005_06_04.shtml#1117650899
The Ninth Circuit, in [1]United States v. Quaempts (thanks to [2]How
Appealing for the pointer) had to choose between two precedents: One
held that a person standing in the doorway of his home could be
arrested without an arrest warrant, because the doorway is public
enough; another held that a person who was lying in bed and could be
seen through the open door couldn't be arrested, because he was still
in his private home. The question was which category someone who
opened the door while lying in bed -- it was a very small trailer --
fit in, and the court said the latter.
I have nothing against that decision as such: Courts sometimes have to
make some choices, and draw some mighty thin lines, especially when
they have to work with precedents that aren't as crisply theorized as
one might like. The process may seem silly to outsiders, but the
decisions have to be made.
Still, I was puzzled by this argument:
Quaempts, however, was in his bed, the sanctuary of the right to
privacy. See Lawrence v. Texas, 539 U.S. 558 (2003).
Really? I know people use "bed" as a reference to "sex," and I know
lots of sex goes on in bed. But surely Lawrence isn't so limited --
presumably sex on the rug, the counter, the kitchen table, or even up
against the door (granted, from the inside, with the door closed) is
just as covered by Lawrence as sex in the bed. Is this just a little
bit of absurdist legal humor, or did someone get carried away with
analogies here?
Or perhaps this might add another answer to the old [3]Why do Baptists
not have sex standing up? joke -- because it's constitutionally
unprotected.
References
1.
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/53C5FD5B0F9D60E0882570120001783C/$file/0330471.pdf?openelement
2. http://legalaffairs.org/howappealing/
3. http://geneva.rutgers.edu/src/christianity/life.html
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