Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Monday, December 19, 2005

Obscenity after Lawrence

This news story reports that (to the surprise of few, I imagine) the U.S. Court of Appeals for the Third Circuit has reversed a district-court decision invalidating several federal obscenity laws, "saying that those laws violate the Constitution.  [The trial judge] specifically cited a recent Supreme Court case, Lawrence v. Texas, in which the court ruled that laws prohibiting same-sex sodomy are unconstitutional.  He ruled that the Lawrence decision undermined obscenity statutes, as well as earlier Supreme Court decisions that upheld them."  (Here is a link to the Court of Appeals decision in Extreme Associates; here is the district-court opinion).

The trial judge had reasoned, in a nutshell, that "[a]fter Lawrence, the government can no longer rely on the advancement of a moral code, i.e., preventing consenting adults from entertaining lewd and lascivious thoughts, as a legitimate, let alone compelling, state interest." He had also noted that "upholding the public sense of morality is not even a legitimate state interest that can justify infringing one’s liberty interest to engage in consensual sexual conduct in private[.]"

So . . . why (putting aside the whole "district-court judges should not announce the implicit overruling of Supreme Court decisions" thing) was the district-court judge in Extreme Associates wrong?

https://mirrorofjustice.blogs.com/mirrorofjustice/2005/12/obscenity_after_1.html

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