June 04, 2005

What About Futons?

by PG

Prof. Eugene Volokh wonders at Ninth Circuit citation to Lawrence in the context of a Fourth Amendment arrest warrant case:

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 Why do Baptists not have sex standing up? joke -- because it's constitutionally unprotected.

I agree that Lawrence was meant to cover the right to sexual intimacy in all private places (though I would have picked a couch rather than the various less-comfortable locales Prof. Volokh mentions), but I think the reference to beds and Lawrence may have been drawing on a longer line of symbols. Kennedy's opinion references the bedroom twice:

In Griswold the Court described the protected interest as a right to privacy and placed emphasis on the marriage relation and the protected space of the marital bedroom. [...]
A police officer, whose right to enter seems not to have been in question, observed Hardwick, in his own bedroom, engaging in intimate sexual conduct with another adult male.
Whether Lawrence and Garner were in the former's bedroom or some other place within his apartment is not stated in the opinions. Still, the implication is that if a man's home is his castle, his bedroom is his sanctuary. As I incline to the romantic interpretation of Kennedy's opinion, perhaps the bedroom also symbolizes a greater degree of intimacy and privacy; it generally is not considered one of the "public" spaces of a dwelling. Someone who lives in a trailer that essentially is just one room thus discloses his whole private space as soon as he opens the door.

For a truly odd citation to Lawrence, I'd submit the plaintiff's argument in Westhab, Inc. v. City of New Rochelle that Lawrence "has set forth a new Due Process standard for zoning ordinances."

June 4, 2005 07:23 PM | TrackBack
Post a comment

Remember personal info?

Sitting in Review
Armen (e-mail) #
PG (e-mail) #
Dave (e-mail) #
Craig (e-mail) #
About Us
Senior Status
Chris Geidner #
Jeremy Blachman #
Nick Morgan #
Wings & Vodka #
Recent Opinions
Persuasive Authority
De Novo Reporter

Powered by
Movable Type 3.21