When Law Defines Morality

Mill, On Liberty, 200 Mill (1806 –1873): Philosopher of science, ethics, economics; Member of Parliament; officer of British East Indies Company Major feminist voice with wife Harriet Taylor Reworks utilitarianism of Bentham

South Florida Free Beaches v. City of Miami, 199 South Florida Free Beaches, Inc argued that the City’s ban on nudity on its public beaches violates the First Amendment right to free speech (as freedom of expression)

Sodomy – A History First considered under Church Law, becomes part of English criminal law in 1533 as capital offense Only includes anal sex and bestiality until late 19 th Century, not applied to women 1610: Virginia institutes first American sodomy law, capital punishment 1955: Model Penal Code delists sodomy 1961: Illinois decriminalizes sodomy

Bowers v. Hardwick (1986) Georgia law criminalized sodomy without regard to gender or marriage Hardwick arrested for private, consensual homosexual sodomy Supreme Court majority recasts question as whether there is “a fundamental right [for] homosexuals to engage in sodomy”

36 States Decriminalized Sodomy before Lawrence v. Texas Yellow <1970, Orange , Peach

Lawrence v. Texas (2003), A romantic partner of Tyrone Garner (Eubanks) called in a “man with a gun” to police. Police find Garner engaged in anal sex w/ Lawrence. Eubanks later serves two weeks for a false police report.

Lawrence v. Texas (2003), Texas "Homosexual Conduct“ Act (Texas Penal Code, Chap. 21, Sec ) makes it a Class C misdemeanor for anyone to "engage in deviant sexual intercourse with another individual of the same sex"

Devlin, “The Enforcement of Morals,” 202 Baron Devlin ( ): Roman Catholic English lawyer & trial judge, later a “Law Lord” Writes “Enforcement of Morals” in response to Wolfenden Report (1965), that recommended decriminalizing homosexual acts in England (occurred in 1967)

Hart, Law, Liberty and Morality, 207 Hart was Professor of Jurisprudence at Oxford Hart was bisexual and had an open marriage – his wife was intimate w/ Isaiah Berlin

Dworkin, “Devlin was Right,” 209 Gerald Dworkin, Professor of Philosophy at the University of California, Davis (no relation to Ronald)

Definitions Obscenity - from Latin, obscenus - not said. Beyond First Amendment protection. Obscenity includes pornography, but also includes blasphemy and profanity. Pornography - from Greek pornographos - writing about prostitutes. Material whose primary purpose is to cause sexual arousal; not all pornography is obscene.

Obscenity Originally Restricted to Blasphemy First known pornography prosecution, Rex v. Read (England, 1708) involved author of The Fifteen Plagues of a Maidenhead Acquitted. Court found book "bawdy stuff," but not criminal because it did not libel either the King or Religion.

Obscenity Originally Restricted to Blasphemy First known successful pornography prosecution, Rex v. Curl (England, 1727) involved author of Venus in her Cloister, or the Nun in her Smock Court found Curl guilty of “offence to religion” as the action involved clergy in sexual situations that mocked religious rituals.

Obscenity Originally Restricted to Blasphemy Massachusetts had only colonial statute condemning what today might be called pornography, but law required works be “in imitation of preaching or any other part of divine worship.” Changes law in 1835 to replace religious requirement with “tending to corruption of the morals of youth.”

People v. Boomer, 271 Boomer is canoeing and tips over, swears loudly as he enters cold water Michigan law states that: Any person who shall use any indecent, immoral, obscene, vulgar or insulting language in the presence or hearing of any woman or child shall be guilty of a misdemeanor.

Porn, Porn, Everywhere!

Arguments against Pornography Porn focuses on body, not complete person Sexual gratification outside marriage is wrong (or illegal) Pornography undermines gender equality Pornography increases sex crimes and/or reduces sympathy for victims Porn contributes to a more vulgar society Porn harms “performers”

Arguments against Censorship Pornography is a harmless outlet for exploring sexual fantasies No one has moral authority to determine what may be perverted or “prurient” No proof that pornography increases sex crimes Problem of defining pornography to include sexual discourse serving other values

Feinberg, “Obscenity as Pornography,” 241 Joel Feinberg, , philosopher at Princeton (later at U of Arizona) Question: Is it consonant with liberal principles (only prohibit that which causes harm) to ban pornography?

American Booksellers Assn v. Hudnut, 237 Indianapolis ordinance results from alliance between radical feminists and Christian conservatives Prohibits pornography in which women are shown as weak, submissive, or enjoying pain