WASHINGTON--Eager to improve their town's moral tone, Los Angeles city councilors are considering an ordinance to improve decorum at strip clubs: No lap dances--dancers are required to remain six feet from customers--no direct tipping, no private VIP rooms in clubs with full nudity. Advocates of the ordinance say such goings-on lead to prostitution.
Opponents of the ordinance, including the dancers, deny that prostitution flourishes at the clubs. And they call the ordinance an unconstitutional abridgement of free artistic expression. But a federal appeals court upheld a law in Washington state requiring dancers to stay 10 feet from customers. Opponents should haul out the heavy constitutional artillery--the privacy right.
Given the Supreme Court's 6-3 ruling Thursday that Texas' anti-sodomy law violates the constitutional privacy right, lap dancing--like prostitution, for that matter--looks like a fundamental constitutional right. Consider the discontinuities in the evolution of that right, which the court first explicitly affirmed in 1965, more than 17 decades after the Constitution was ratified.
In 1965 the court said a Connecticut law banning the sale and use of contraceptives violated a constitutional right of privacy. But the court connected this right to society's stake in an institution--marriage, ``an association that promotes a way of life.'' Marriage is grounded in nature, in the generation and rearing of children, a matter about which every society legislates.
The privacy right is most famously associated with Roe vs. Wade, the 1973 abortion decision. But the radicalism of that decision was in severing the privacy right from any relationship with any social institution. Rather, the court said in 1973 that the privacy right encompasses the individual's right of choice. In sexual conduct, the right to choose is the right to consensual activity.
In the 1973 severing, the court said the privacy right involves ``freedom from government domination in making the most intimate and personal decisions.'' Such as to choose to engage in sodomy. So the court contradicted its 1973 privacy right ruling when, in 1986, it ruled 5-4 to affirm a Georgia law criminalizing consensual adult sodomy. And one justice in that majority, Lewis Powell, later said he regretted his vote.
Thursday the court held that Texas' law ``furthers no legitimate state interest'' which can justify abridging the privacy right to consensual adult homosexual activity. The logic of the court's ruling, which the court flinches from recognizing, is that no legitimate state interest is served by any law for the promotion of a majority's convictions about sexual morality.