Sex, Drugs, and Consenting Adults

Future of Freedom Foundation ^ | January 20, 2003 | Scott McPherson

[RJCogburn]

The Georgia Supreme Court has struck down a 170-year-old law forbidding sexual acts between unmarried people. The ruling, which came on Monday, January 13, was the result of a case of a 16-year-old boy caught having sex with his girlfriend in her home.

“Our opinion,” wrote Chief Justice Norman Fletcher, “simply affirms that ... the government may not reach into ... a private residence and criminalize the private, noncommercial, consensual sexual acts of ... persons legally capable of consenting to those acts.” Georgia’s legal age of consent is 16.

Libertarians should most assuredly applaud the decision of the court to overturn a bad law. Still, the opinion expressed by Justice Fletcher, though fairly sound, deserves considerable criticism.

It is certainly a tenet of any free society that the consensual sexual conduct of its adult citizens be left outside the purview of the state. That is what makes a society free: the ability to engage in any activity so long as it is consensual and, thus, violates no one’s rights.

And the chief justice’s opinion would be a very sound bit of libertarian thinking indeed, if only it didn’t provide a convenient exception for activities not both “sexual” and “noncommercial” in nature. But why not apply the same philosophical standard used to strike down those laws?

The reason for Fletcher’s wording is obvious: he wanted to clarify that the court’s protection of privacy rights didn’t extend to prostitution, which is a private consensual act involving the exchange of money.

The court undoubtedly also didn’t want to extend privacy protection to such nonsexual acts as drug possession or use inside a person’s own home. But if a person has the right to engage in consensual sexual acts, why doesn’t he have an equal right to engage in what might be considered peaceful self-destructive behavior?

Drug laws also criminalize the sale or distribution of drugs, which is a commercial act. If the state were to completely disavow the authority to “reach into ... a private residence and criminalize ... private ... consensual ... acts,” it might start a flood of constitutional challenges to Georgia’s laws on the sale and distribution of drugs. Imagine the fate of Georgia’s drug war. More important, imagine the conflict it would spark between the state and the federal government — if drug dealers could refer to such a ruling as a defense of their trade, a private and consensual act taking place in the protected domain of their own residences?

Such a strong pronouncement on the sanctity of private property could also mean an end to many of the laws regulating intrastate commerce. If the court left the door open wide enough, rest assured Georgia businesses would use the ruling to eschew costly and intrusive state regulations.

We daren’t have any of that.

The Georgia Supreme Court missed an excellent opportunity to fully carry out its most important, though long-forgotten, role: to stand as a bulwark against all encroachments by the state of Georgia on the individual right of free men and women to pursue their own happiness in their own way so long as their conduct is peaceful. In the interests of justice, the people of Georgia deserve the unrestricted right to engage in all consensual activities in their respective private domains, including sex, drug use, and the ability to run their economic affairs as they please — provided they equally respect the rights of others.

By simply omitting a few critical words from its ruling, the Georgia Supreme Court could have taken a giant step toward the restoration of a truly free society. Instead, Georgians were handed a morsel of freedom, while the lion’s share of their liberties remain on the plate of a very hungry government.

[weikel]

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[buffyt]

How embarassing for the 16 year old children. I HOPE THEY LEARNED A LESSON from the embarassment and although it may not be illegal for them to have sex, look at the horrible experience it caused! I think if I had read this one when I was 16 it would have made a lasting impression on me! [with my stupid little skull full of mush at that age] I think I would have taken from this that 16 year olds should NOT be doing this at all! But they have caught Kindergartners having oral sodomy in the cloak rooms..... This younger generation is going to face some ugly reality when they are adults. Life isn't one big orgy.

[MrLeRoy]

The reason for Fletcher’s wording is obvious: he wanted to clarify that the court’s protection of privacy rights didn’t extend to prostitution, which is a private consensual act involving the exchange of money.

The court undoubtedly also didn’t want to extend privacy protection to such nonsexual acts as drug possession or use inside a person’s own home. But if a person has the right to engage in consensual sexual acts, why doesn’t he have an equal right to engage in what might be considered peaceful self-destructive behavior?

Excellent question.

[xm177e2]

How embarassing for the 16 year old children. I HOPE THEY LEARNED A LESSON from the embarassment and although it may not be illegal for them to have sex, look at the horrible experience it caused! I think if I had read this one when I was 16 it would have made a lasting impression on me!

Their having sex did not cause a horrible experience, it was the illegitimate intervention of the state. You obviously want to turn our police force into a little Ministry for the Prevention of Vice and Promotion of Virtue, but most Americans have had enough of the Taliban as it is.

[Redcloak]

Judge Fletcher's odd wording may have more to do with other, more conventional, home businesses. The State regulates businesses, including those run from private homes. They tax them and regulate what can and cannot be done from a home; but it's taxation that's nearest and dearest to the politician's heart. By wording the decision this way, Fletcher leaves such taxation unquestioned since it's non-comercial activity that's beyond the State's reach.

[MrLeRoy]

Judge Fletcher's odd wording may have more to do with other, more conventional, home businesses. [...] By wording the decision this way, Fletcher leaves such taxation unquestioned since it's non-comercial activity that's beyond the State's reach.

By confining his remarks to "criminalizing" the judge already left taxation unquestioned, since taxation is not criminalization. I think the article's author got it right.

[Forgiven_Sinner]

It is certainly a tenet of any free society that the consensual sexual conduct of its adult citizens be left outside the purview of the state. That is what makes a society free: the ability to engage in any activity so long as it is consensual and, thus, violates no one’s rights.

Here is where liberterianism falls down: by rejecting divine revelation it misses the violations of rights and harm to society by these so-called victimless crimes.

Specifically, extramarital sex is harmful to society, even if consensual. How? A partial list of damage caused by this "victimless" crime:

1. Any future children are harmed by the knowledge of their parents infidelity. They would be inclined to regard extramarital sex as inconsequential. Isn't it? See 2.

2. Extramarital sex leads to unmarried pregnancy. Now, instead of a joy, a child is a burden.

3. Single mothers are the major component of poverty. The father has no committment to the mother.

4. Unmarried pregnancy leads to abortion. Of the 30 million plus children murdered since 1973, the majority have been outside marriage.

5. Unmarried pregnancy leads to unprepared marriage. This is better than non-marriage, but still many divorces come from such unions.

6. Unmarried pregnancy leads to uneducated parents. A child interrupts, delays, or cancels college careers, which impacts education and future earning power.

7. Extramarital sex leads to VD, or STD's, pick your acronym. With no extramarital sex, there is no AIDs, syphillis, gonerrhea, etc. etc.

8. With STD's, any children born may be infected. So much for victimless crimes.

9. Increased divorce leads also to poverty, lowering society's standard of living. The poor live off welfare, rather than earnning a living.

10. Increased disease lowers societal productivity.

11. Increased disease increases medical costs.

A valid question to ask is, why has this law been in effect for 170 years with no previous court overturning it? Because everyone knew extramarital sex was bad for society, local courts, federal courts, and the Supreme Court. Only by our constant degradation of morality has seared our consciences so that the societal impact of such crime is not considered, and it is no longer considered a crime.

I think if the ruling were appealed to the Supreme Court, it may or may not be upheld. The question is, the State's sovereign right to regulate crime versus the citizen's implied right (still a valid right--I'm not denegrating that) to freedom of sexual expression. That question turns on whether the consequences of that sexual expression are recognized as inevitable or if they are considered not relevant.

That said, I do not blame the local court entirely for this ruling. They are following societal thinking and trends. If extramarital sex were still condemned by religion and society, this ruling would not occur.

[MrLeRoy]

I don't see any violations of rights in your list except for #4, abortion. On that subject:

• That is more appropriately addressed by banning abortion.
• Married sex leads to many abortions; should that be criminalized?
• The effect of criminalizing nonmarital sex may be simply to discourage teens from getting birth control---leading to MORE abortions.

[Forgiven_Sinner]

You wrote:

"I don't see any violations of rights in your list except for #4, abortion. On that subject:"

Quite so. I was not arguing that premarital sex took away any rights. I was looking at whether a law prohibiting it was better for society or not.

Regarding abortion, you said:

" * That is more appropriately addressed by banning abortion."

Quite right. Abortion is merely a side effect of premarital sex, as I stated in my post.

" * Married sex leads to many abortions; should that be criminalized?"

I don't know if this is true. Do you have any statistics on this? I vaguely recall that the vast majority (>90%) of abortions are done for unmarried women.

"* The effect of criminalizing nonmarital sex may be simply to discourage teens from getting birth control---leading to MORE abortions."

Hmmm. Speculative. I don't quite get the connection on how criminalized extra marital sex discourages teens from birth control. Birth control usage is erratic at best among teens.

For abortions to increase under this scenario, we'd have to have criminalized extramarital sex (and enforce the law) and still permit abortions. A rather inconsistent set of laws, from a moral point of view. But possible--indeed this is the state that existed before the fornication law was repealed.
Except that the law was not enforced. No doubt there are thousands of laws that aren't enforced that should be repealed.

When the law was enforced, perhaps a hundred years ago, there were fewer unwanted pregnancies and less teen sex (mostly on the female side). It's difficult to compare that era (1900) with today other than to note that the social stigma of out of wedlock child was a far greater punishment than anything the state did.

But some laws that aren't enforced, like illegal immigration, should be enforced. I judge them upon the impact of the law's enforcement upon society.

[MrLeRoy]

I was not arguing that premarital sex took away any rights. I was looking at whether a law prohibiting it was better for society or not.

The sole legitimate function of government is to defend rights---not to "better society."

[tpaine]

"Our opinion," wrote Chief Justice Norman Fletcher, "simply affirms that ... the government may not reach into ... a private residence and criminalize the private, noncommercial, consensual sexual acts of ... persons legally capable of consenting to those acts."


Judge Fletcher's odd wording may have more to do with other, more conventional, home businesses. The State regulates businesses, including those run from private homes. They tax them and regulate what can and cannot be done from a home; but it's taxation that's nearest and dearest to the politician's heart. By wording the decision this way, Fletcher leaves such taxation unquestioned since it's non-comercial activity that's beyond the State's reach.
-red-

I don't see the judges wording as 'odd' at all.
I think the principle behind it is one that libertarians should adopt as their own.
No one can logically deny, imo, that states/localities have the constitutional power to 'reasonably regulate' commercial activities, for any number of reasons. - Health, zoning, safety, etc. -

In the case of prostitution, as per Nevada, it can be licensed by localities, and thus be controlled [reasonably, imo], by misdemenor type laws against unlicensed premises, which would include private homes. The act of 'prostitution' itself would remain legal, but its commercial aspects would be regulated.

Thus, the act of 'mind-altering substance' use & abuse would be 'legal' but any commercial activities would be licensed & controled, within proper constitutional bounds. -- IE, no-knock raids, rico type 'laws', etc, would not be seen as 'reasonable regulation'.
- We would treat 'drugs' exactly as we treat booze.

[MrLeRoy]

I don't see the judges wording as 'odd' at all.

I do. What you go on to propose (which I agree with, btw) would have followed from the judge referring to simply "consensual acts" rather than "private, noncommercial, consensual sexual acts." The judge's actual words leave government free to criminalize any commercial acts and any nonsexual acts it wants.

[tpaine]

Our opinion," wrote Chief Justice Norman Fletcher, "simply affirms that ... the government may not reach into ... a private residence and criminalize the private, noncommercial, consensual sexual acts of ... persons legally capable of consenting to those acts."
_________________________________

"I don't see the judges wording as 'odd' at all."
-tpaine-

I do. What you go on to propose (which I agree with, btw) would have followed from the judge referring to simply "consensual acts" rather than "private, noncommercial, consensual sexual acts." The judge's actual words leave government free to criminalize any commercial acts and any nonsexual acts it wants.


Reading the quote above, I don't see these 'actual words'.
-- Aren't you assuming that states can pass laws that violate the BOR's, namely the 14th?

[MrLeRoy]

Reading the quote above, I don't see these 'actual words'.

"private, noncommercial, consensual sexual acts."

Aren't you assuming that states can pass laws that violate the BOR's, namely the 14th?

No. What makes you think I am?

[tpaine]

Our opinion," wrote Chief Justice Norman Fletcher, "simply affirms that ... the government may not reach into ... a private residence and criminalize the private, noncommercial, consensual sexual acts of ... persons legally capable of consenting to those acts."
_________________________________

"I don't see the judges wording as 'odd' at all."
-tpaine-

I do. What you go on to propose (which I agree with, btw) would have followed from the judge referring to simply "consensual acts" rather than "private, noncommercial, consensual sexual acts." The judge's actual words leave government free to criminalize any commercial acts and any nonsexual acts it wants.


Reading the quote above, I don't see these 'actual words'.
-- Aren't you assuming that states/localities could pass laws unreasonably criminalizing commercial activities? -- Such 'laws' would violate the BOR's in a number of ways, imo, -- primarily the 14th.

[MrLeRoy]

All I'm saying is that the judge's words did not rule out such laws---and I think he chose his words with the intent to not rule out such laws.