September 20, 2004

Come Together (in the Hoosierdome)

by PG

With the comments section of this post going slightly off-topic -- from Scalia's grudging Johnson vote for the First Amendment protection of flag burning, to his enthusiastic dissent from Lawrence and heckling concurrence in Barnes -- I thought I should corral the arguments on the latter topic together.

If I understand him correctly, Will Baude says that with Lawrence's having eliminated public morality as a rationale for banning certain behaviors, no basis remains for the government's banning nude dancing in clubs or mass flashing in sports arenas, provided that all present consent to the nudity. (Irrelevantly, I'm fascinated by the suggestion that Lawrence could overturn laws against suicide, which I had not previously considered to be about public morality so much as about incentivizing people who really want to kill themselves to do it properly and not muck about with these stomach-pumping cries for help.)

I didn't realize that strip clubs and the Hoosierdom, places of "exhibition or entertainment," could be considered private places. Wouldn't both be governed by federal anti-discrimination law as "public accommodations," in a way that one's bedroom is not? That is, I can prohibit entry to my own home to any person for any reason, but a strip club and the Hoosierdome cannot use race and gender to keep people out.

Assuming that I'm correct about the legal nuances of private versus public, Lawrence would protect genital waving in one's home or any other place that cannot be considered a public accommodation. This strikes me as a pretty good distinction, since one would like to be able to discriminate regarding the genitals one sees in one's home without fear of violating the Civil Rights Act of 1964, whereas in entering a strip joint or sports arena, one must take one's chances.

Lawrence eliminated the government's ability to interfere in one's entirely private actions solely in the name of public morality. There's no reason why anyone would even know what two people are doing in their own home, assuming that they don't make enough noise to wake the neighbors. Indeed, this was part of the concern over the police power to bust into people's houses on suspicions that their relationship is going far too well not to include illegal activities. As Justice Kennedy said in the majority opinion in Lawrence, "Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home."

If the state's interest in preventing racial and gender discrimination is insufficient to overcome the a priori presumption in favor of the home's inviolability, how much less is the government's interest in maintaining public morality able to surmount it?

(And isn't that a typically liberal hierarchy of governmental priorities?)

September 20, 2004 02:33 PM | TrackBack

The Hoosierdome was renamed the RCA Dome several years ago. For what it's worth, I think this change further privatizes the venue, but not to any extent appeciable enough to make an impact on your reasoning.

Posted by: Evan Bayh at September 20, 2004 05:50 PM

Interesting points, but I don't know that the home/public accomodation distinction does all that much work in Due Process Clause jurisprudence. Lawrence did not make the home inviolable, nor did it necessarily limit it to things shielded from public knowledge. There should be a strong case for not criminalizing "sodomy" in hotel rooms, and I assume that a public announcement by two gay men that they were about to have sex before they retired to their private bedroom would not strip their conduct of its constitutional protection. These would be similar to the (arguably) negative externalities that would flow from a different commercial enterprise, or Hoosierdome, engaging in "immoral" activities, so I don't know if this is a proper dividing line.

Title VII regulates businesses based on Congress's commerce power, but it regulates by saying certain groups of people may not be refused services they voluntarily seek simply based on those group identities alone. Public, in this sense, reflects the group services are offered to and who may get those services. I read "private" in the Lawrence context giving a different meaning of its opposite: "Public" means something more like public display or public forum, rather than public access. The hotel is probably a good example: while a public accomodation for Title VII purposes, it would surely be private for a Lawrence analysis. In other words, a state could not enact a law saying that sodomy is criminal in hotels for precisely the reasons given in Lawrence. By extension, I can see a Lawrence reasoning applied to the Hoosierdome hypothetical.

Posted by: Matto Ichiban at September 20, 2004 05:54 PM


Hotel rooms, once they've been rented by a customer, no longer constitute a public accomodation; i.e., if I got a room, I could refuse entrance on a discriminatory basis. Now, if a hotel just flings its doors open to the public, permitting people to come and have sex at will*, I suspect that arrests would follow. And if they said "No White Men Allowed," so would litigation.

You ought not specify "two gay men" in your announcing sex scenario, as heteros are reasonably adept at violating the laws of nature and it just muddies the issue to bring up The Gays. If two straight people declare that they are about to commit sodomy before retiring to their room, I think that would be covered by the First Amendment, assuming that the indecency exceptions are not raised. What I meant by saying that there was no reason to know what people were doing was that absent verbal declarations, or sock-on-the-doorknob symbolism, we generally don't know what our neighbors are doing in bed. And this is a good thing for societal functioning, particularly when we live near our parents.

I know that I have my own weird little interpretation of Lawrence, but my understanding of Kennedy's majority opinion would have it exclude mass orgies at the RCA Dome and possibly even Will's query regarding menage a trois (don't know how to make that plural plural). Kennedy's focus is on intimate relationships beyond the euphemistic sense of "intimacy." He seems quite sincerely to be talking about people who, like, know each other's names and everything.

This, as a general rule, should counsel against attempts by the State, or a court, 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. It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring.

Dan Savage and I get teary-eyed at that part.

* I can't help thinking of the correct theme music for such an event. "To the window, to the walls" -- stopping before I get another I Let My Daughter Read Your Filth email.

Posted by: PG at September 20, 2004 08:32 PM

I'm still confused about why the ability to exclude distinction matters so much, or why Title VII provides a meaningful sphere to limit Lawrence. A private club can also discriminate on the basis of race or sex, but seems more like a public accomodation than a home, so could certain sexual practices be prohibited there or not? I still find the public display/exhibition distinction a more meaningful one in determining the scope of Lawrence's Due Process Clause right, and even for reasons of intimacy, since the hallmark of privacy is what is made available for public inspection, not merely where something occurs. Without making a value judgment about what is or is not intimate or proper, subjecting the unconsenting world to a view of certain conduct sounds like a manageable and reasonable line to me.

I'm a little confused about how to square your interpretation of Lawrence with your post, to wit, how to draw a distinction between protected and unprotected activity without referencing morality, unless your argument is that Lawrence is actually to be read much more narrowly than, say, the Will Baude or Scalia reading. It is certainly a viable argument, but just one I didn't pick up on originally.

My reference to two gay men previously was just to provide a concrete example, not define Lawrence's scope.

Posted by: Matto Ichiban at September 20, 2004 10:03 PM

Matto is justifiably confused, as I've been amused by the topic and not explaining myself well. He's correct in saying that I read Lawrence differently than Baude and Scalia do. I don't see Lawrence as saying that the government has NO interest in maintaining public morality; nor, as my adultery posts might have shown, do I think that it protects all consensual sexual activity.

Rather, I think Kennedy is saying that a government interest in the public morality cannot overcome the right to privacy that extends from Griswold-Roe-Casey, and the right to be free of "unwarranted government intrusions into a dwelling or other private places." Personally I think the First Amendment does allow for expressive nudity -- off with the pasties! -- but I don't see Lawrence as providing cover. Certainly the current state of law implies that the right to privacy is a higher priority than the right to expressive conduct, if public morality can top the latter but not the former.

And no, I don't think that's the real Evan Bayh. The real Evan Bayh needs to be out getting Indiana back into the "swing state" column.

Posted by: PG at September 20, 2004 11:46 PM

As Will Baude is abstaining from comments, here is our e-mail dialogue, which may clarify what I mean:

Will says--
My argument doesn't hinge on the public/private status of the genital waving venue. My argument is this: to prohibit expressive nudity, the government needs a justification, an interest, if you will.

Because of our First Amendment caselaw, it can't use any argument about the offensive content of the nudity. The nudity is not obscene in itself, so it can't use the obscenity caselaw. Because this is taking place on a piece of private property (be it a public accomodation or not), namely the Hoosierdome, it can't use an argument about protecting innocent bystanders or captive audiences from offense. Because of Lawrence, it can't use the interest in maintaing the public
morality (which seems to have been the interest implied in Barnes).

So, what would be the substantial government interest that justifies that kind of ban on expressive conduct? What is odd is that (your odd reading of Lawrence aside) the court *hasn't* held that privacy in the broad sense you suggest is entitled to more protection than expressive conduct. We apply rational basis unless the interest is "fundamental". But we apply intermediate scrutiny to expressive conduct.

PG says--

I know that the court hasn't held that privacy is entitled to more protection than expressive conduct, and I'm not saying that *I* think it's entitled to more protection. I'm just saying that if you put Lawrence next to Barnes (and assume that the activity in Barnes was expressive conduct), it appears that privacy can overcome the governmental interest in public morality, whereas expressive conduct cannot.

Somewhere in the fog, there's a connection between the fact that one is privacy, which is the *opposite* of public; and the other's expressive conduct, which almost by its nature has to be public -- everything else is just onanism; but the connection is unlikely to come clear right now.


Of course as you know my suggestion is that Lawrence overrules Barnes, so putting the two side-by-side doesn't get us anyplace.

Both Lawrence and nude dancing involve transactions between multiple people. And in both cases, everybody involved is fully consenting. So I don't think the chasm is that odd.


I can't see Lawrence as somehow overruling Barnes, because I don't think there was a privacy right in Barnes. Barnes was First Amendment; Lawrence is privacy. The chasm probably exists only in my peculiar little romantic love of Kennedy's opinion. "When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring."
[sigh] You'd think there was no such thing as a one night stand. So cute.

In this interpretation, Lawrence very specifically is protecting sex within the context of relationships. So no protection for bathhouses or wife-swapping clubs. And no way to see strip joints as deserving of privacy protections.

Posted by: PG at September 21, 2004 02:00 AM

I propose a new reality show:

"Last First Amendment Comic Standing"

The contest will take place on Scalia's slippery slope. Someone will bring in the commerce clause, which as we all know means "intercourse". Comic bits will be presented on each of the slippery slope items enumerated by Scalia in his dissent. However, I warn the First Amendment Comic who discourses on masturbation not to plagiarize George Carlin's: "Masturbation is not against the law. It it were, people would take the law into their own hands."

The winner would slide down the slippery slope and join Scalia and company in a duck blind, which would of course be a public place (for purposes of this reality show), where they can do as they please in reliance upon Lawrence, provided, as has been suggested with respect to nudity in a public venue, that all present consent.

Let the show begin!

Posted by: Shag from Brookline at September 21, 2004 07:25 AM

Given that Baude doesn't provide for comments on his weblog, quite frankly his comments aren't worth paying a lot of attention to. If he wants to bloviate--for whatever reason--he should feel free to. But, quite frankly, whatever. Any idiot can set up a web page, and more than a few people have.

Posted by: raj at September 21, 2004 08:08 AM


If by some chance you have something useful to say, feel free to email me. I welcome comments, and provide for them:, just not through the usual haloscan anything-goes nonsense.

Posted by: Will Baude at September 21, 2004 08:32 AM

Oh, Will, don't fall in for raj's insolence.

Posted by: Chris Geidner at September 22, 2004 12:05 AM

Nude dancing, by organized naturists groups, should have several nudism dancing centers, here in the Cleveland area.
As luck would not have it, in 2006, the poor city of Cleveland, proabably still does not even have ONE nude dancing center, even though almost 3,000 nude people, including Action 19's Sharon Reed, posed nude for Spencer Tunick, creating America's largest Sistine Chapel photograph, now hanging in the Cleveland Museum of Art! Of which I posed for in 2004.

Posted by: Daniel P. Wilkins at July 27, 2006 12:32 AM
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