Ol’ Dirty Watch: Moral Majority Edition
The Ol’ Dirty has a rather interesting editorial up today decrying the Oregon State Supreme Court’s decision to overturn two sex show laws. It isn’t worth my time to address the Editorial Board’s entire opinion, so instead I’ll focus on the last four paragraphs:
Business managers at clubs argue that those involved in sex shows are consenting adults who deserve their rights to free expression. Yet such a viewpoint ignores the slippery slope from nude dancing to prostitution.
Of course there’s a slippery slope from nude dancing to prostitution. But slippery slope arguments don’t hold much weight in my mind, as they can be used to disrepute pretty much any freedom we citizens have. There’s a slippery slope from occasionally drinking alcohol to being an alcoholic, from owning a gun to hunt to owning a gun to kill another person, from using abortion as a means of last resort to using abortion as a regular form of birth control, from driving a car safely to driving a car recklessly. People should have control over their own bodies, even when it means using said bodies for practices the majority finds immoral or disgusting.
In a strip club, dancing on stage garners less money than a lap dance, which garners far less money than a private sex encounter with a John in a motel room. Such monetary earning patterns partially explain how strippers become gradually more comfortable with the idea of prostitution.
And why is that? Because “a private sex encounter” is illegal and thus scarcer. This illegal encounter is far more dangerous for both parties than a legalized and controlled encounter would be. (And, of course, more profitable for the middleman pimps.)
As long as prostitution remains morally objectionable in Oregon, the legality of live sex shows should not be validated by the court. The Oregon Legislature should address this issue by crafting laws that specifically prohibit the exchange of sex for money.
Another worthless, hypocritical argument. Homosexual marriage remains morally objectionable to most Oregonians, if the last ballot measure is any indication. Does that mean it should continue to be illegal? Of course not. Individual rights should trump the right of the moral majority to invade people’s bedrooms and hotel rooms.
The court’s decision to authorize private sex performances is in compliance with neither the values of constitutional framers, nor with the values of most Oregon citizens today.
Since the ODE suddenly values the opinion of the moral majority (and the imagined morals of a bunch of dead politicians) over that of an individual’s rights, one would expect the Editorial Board to soon come out against abortion in red states and assisted suicide and gay marriage nationwide. We’ll see. It’s funny how organizations with no institutional memory change over the years.
I’m not sure why everyone assumes that I somehow think that the Courts should have anything to do with what so obviously should be a States’ power. I think States, and States alone, ought to have the power to determine marriage, and what constitutes it. If the State of Vermont or Massachusetts wants to recognize gay marriage, it is their right. My only fear is that the federal courts will step in and grossly abuse the meaning and power of Article IV Section 1. How we got to Marbury is beyond me, as I am by no means hung up on the compex issues of federalism.
Your argument, if anything, gives at least some merit and weight to my concern, in that Story’s opinion for Martin held supremacy of the Constitution to State powers and concerns. In that do we find my ultimate worry, namely that a group of 9 imbeciles will somehow find it a guaranteed right that a gay couple married in Mass can compel the State of Kansas to recognize that union. In the end, I have become a liberal, but hear me out. I think that, if an amendment is passed at all, it should not be one that defines marriage, but rather one that guarantees the issue of marriage as the sole power and purview of the State governments and their selected representatives. I think that would settle the issue on a federal level, and grant each geographic and State local the power to answer the question for itself.
Scott
Of course, I don’t know why I’m bringing up Martin when Scott here is still hung up on Marbury v. Madision! Am I right, people?
I don’t know the names of these cases or I’d give you a definite answer. I do know that there are state “DOMAs” that were enacted after the federal DOMA authorized them. (I.e., federal DOMA says states need not honor gay marriages; state DOMA makes plain that that is what a state is going to do.) If these cases are going through state courts, I doubt the federal DOMA is implicated. If it is, these courts certainly don’t have the last word on it. I mean, Martin v. Hunter’s Lessee, hello!
I’d also presume, in my uneducated way, that the MA and VT courts are unlikely to reach the question of DOMA as they’d be looking at whether or not their own States’ constitutions demanded that they recognize such. Guess: MA concludes that they do, following their earlier precedent, federal law unaffected because the decision is made based on MA state law.
Am I intuiting correctly? Dan?
If DOMA gets tossed, the situation just reverts to the states’ common law on the recognition of out-of-state marriage. Which, in well-worn and nearly uniform fashion, holds that a state may refuse to give legal force to marriages deemed to be contrary to the public policy of that state.
This principle has been around as long as cousins have had bad ideas, and I think it would work pretty well to keep gay marriage out of those states that don’t want it. For example: Oregon voters have rejected gay marriage by majority vote. Therefore, it wouldn’t take long to convince a court that gay marriages from other states are contrary to Oregon’s public policy.
And the un named courts are the Massachussetts Supreme Judicial Court, the Vermont Appelate Division Court and the Federal Appeals Court of DC, all scheduled to hear arguments on the validity and enforceability of DOMA and specifically Article IV Section 1.
Timothy,
I do not at all disagree with your assessment of Congress having the sole authority to govern Article IV, any more than I disagree with the Constitutional Premise that it is the State Legislatures, not the people, who hold the sole power to determine Electoral College members. If you refer to Bush v. Gore, however, you will notice how wonderfully the 9 wise morons in DC butured that rather simple premise. In the same fashion, what I fear the most is an activist Court determinig, under whatever misguided guise they might use, that it is the Courts, and not Congress, granted with the power to make that determination. Would that be grossly untrue from an historical and constitutional perspective? Absolutely. Should DOMA be allowed to reign? Surely. Should the courts stay out of it? Yes. Is this likely to be true? If you think so, then I fear you have more faith in the system than I do. Anyway, just my thoughts. I am as ever ignorant, but am as always trying to remedy the situation.
Scott
Well being that the DOMA specifically states that same-sex marriages don’t have to be recognized in states where they were not performed, it doesn’t really matter what these here-to-fore unnamed courts are considering.
“But what if the DOMA is declared unconstitutional?” Unless ye olde emanations and penumbras make another appearance, unlikely. Given that Art. IV specifically grants Congress the right to regulate how Full Faith & Credit is enforced.
Do we really need to go through this again, Scott?
Hey there everybody,
It’s Austin, live from Vegas. I’m teaching High School English here, and adjusting to American culture from being in Asia quite nicely. I just wanted to point out that there are several Courts, both State and Federal, looking at the Article IV Section 1 FUl Faith and Credit guarantee of the US Constitution with regards to Massachusetts Gay Marriages and those being married in that State having the right to compel other States to recognize those marriages. I hate to say “See, I told you so”, but in this case it might actually be worth saying.
Scott
Glad you wrote something about this. Good post.
I’m pretty sure you can get a blow job for twenty bucks (assuming you’re not too picky), but I’ve never gotten out of a strip club without spending at least fifty. Everyone wins with live sex in a nice, “clean” alcohol serving establishment. Besides, I’m sure the ODE wouldn’t have much of a problem of two unshaven lesbians were performing a horrible one-act play in some smoke-free beatnik flophouse, as long as there were a positive multicultural message.
Good post Ian. And thanks guys.