Last week, University of San Diego LSRJ lured over 120 people to our last event of the semester with a sultry title, Chipotle, and a raffle for chocolate body paint, but the attendees stayed for a substantive conversation about the evolution and limitations of the constitutional “right to privacy.”

The split between the 5^th and 11^th Circuits over Lawrence v. Texas’ application to the sale and promotion of sex toys spawned “My Body, My Bedroom.”  Whereas the 11^th Circuit ruled in Williams v. Attorney General of Alabama, 378 F.3d 1232 (5th Cir. 2004), that Lawrence does not protect the sale of sex toys, the 5^th Circuit examined the question in Reliable Consultants, Inc. v. Earle, 517 F.3d 738 (11th Cir. 2008), and came to the opposite conclusion.

This contemporary circuit split provided a spring board for USD professors Miranda McGowan and Shaun Martin to discuss the historical background of the privacy doctrine and explain how the Courts’ decisions on contraception and abortion apply to other aspects of intimate relationships.  Students don’t naturally link reproductive justice with the rights of gays and lesbians, but this topic demonstrates that constitutional jurisprudence does.

Professor McGowan explained that although the Court has generally relied on the Due Process Clause to protect fundamental liberty interests, it has used the Equal Protection Clause (EPC) to extend those rights to marginalized groups.  The Court used the EPC to extend the right to contraception to unmarried couples, and, she argued, it used the EPC to bolster its argument for striking down the law against homosexual sodomy in Lawrence.

This argument however, makes one wonder whether the so-called “privacy doctrine” has continued application when the rights of historically disadvantaged populations are not implicated.  If everyone’s ability to purchase sex toys is equally limited, what right is the state violating?

As Professor Martin mused, the Court has recognized a right to sex between two consenting adults in the privacy of their home but has never suggested there’s a right to “good sex.”  He therefore argued that while the Texas and Alabama laws barring the sale of products “designed or marketed as useful primarily for the stimulation of human genital organs” are absurd, our Constitution may not be the appropriate tool for striking them down.

The success of “My Body, My Bedroom” demonstrates that while students crave Chipotle they also crave opportunities to engage in conversations around the contemporary applications of our nation’s founding document. With the EEEs and events like “My Body, My Bedroom,” LSRJ chapters can satisfy this craving and simultaneously demonstrate the relevance and breadth of the reproductive justice framework.

Lauren R.S. Mendonsa

This entry was posted on Monday, April 19th, 2010 at 5:57 pm and is filed under education, law, law school, leadership, lgbtqiq, lsrj events. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.