June 08, 2005

Impact of Gonzales v. Raich?

by Guest Contributor

[Jed Sorokin-Altmann] Salon.com has an article by Ryan Grim titled: "A Guide to Gonzales vs. Raich" that examines Monday's ruling. One area it examines is whether or not there is any limit to what the federal government can regulate. The dictionary answer, Congress can regulate anything related to interstate commerce, doesn't provide a practical, working definition of what this might actually be. What is and is not economic? What can and cannot be regulated by Congress?

Grim quotes GWU Professor Orin Kerr as saying, "Maybe marriage [can't be regulated by the federal government]. It's hard to tell what's non-economic." I disagree with Professor Kerr--marriage is very much wrapped up in economics and commerce. There are many various tax benefits involved with marriage, health care, and other financial implications that have a direct, open, and obvious impact on interstate commerce.

Many may not blink at the idea of Congress regulating marriage, indeed, the religious right would be thrilled to see Congress overruling, say, Massachusetts on the issue. I suspect, however, they would be less happy to see Congress regulating marital sex and how often it must occur. Huh, you ask? Grim looks back at last November's oral arguments in Raich:

Last November, during oral arguments in Raich, Barnett, the plaintiffs' lead counsel, momentarily silenced the stodgy courtroom. Think about prostitution and marital sex, Barnett said, not having to ask twice. In that case, he went on, the same act is regulated under some circumstances but not under others, even though the two influence each other. The less marital sex someone has, Barnett argued, the more times someone will seek out a prostitute. So by regulating that married couples have more sex, the state could reasonably expect to reduce the occurrence of prostitution. But surely the federal government can't regulate the number of times a couple must have sex in a week, Barnett concluded.

Monday, I asked him if Congress could now regulate marital sex. "Yes," he said, "under the reasoning of the majority opinion." Kerr wasn't sure: "It's my hope that Congress never tries."

Given Raich, there does not appear to be anything stopping Congress from regulating marital sex, including the number of times a week it must occur. The facts make for an even easier finding than Raich: prostitutes are far more likely to cross state boundaries for their trade then the marijuana which was grown in California for use in California (or even marijuana grown in a house for use in that house).

June 8, 2005 02:54 PM | TrackBack

Marriage may be tied up in economic considerations, but marital sex is presumably protected from Congressional regulation by Lawrence. Indeed, Lawrence largely turns your prostitution question on its head; after Lawrence, I think a strong argument can be made that laws prohibiting prostitution are unconstitutional. If one has a constitutional right to private consensual sex, how does the exchange of money nullify that right? One can certainly argue that many men would effectively be barred from exercising their right to private consensual sex if prohibited from paying for it.

Think of the Roe analogy: I strongly doubt that it would be constitutionally permitted for a state (or Congress) to pass a law stating that abortion is permitted only if performed for free, and that paying (or accepting money) for an abortion was a criminal act.

Posted by: Tom T. at June 10, 2005 09:03 AM

There may be other factors that prohibit such a regulation, at least recently thanks to Lawrence, but is it proper for Congress to otherwise have that level of regulatory power? I mean, really?

Posted by: Jed Sorokin-Altmann at June 10, 2005 02:13 PM
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