Monday, May 1, 2017

The Supreme Court on Sex, Obscenity, and Marriage (Part I)

The Constitution mentions nothing about sex, obscenity, and marriage, but that has not stopped the Federal government and Supreme Court from infringing on State rights. The Court interferes on State rights by using moral convictions to conjure up imaginary rights or standards to push its agenda.

The Roth v. United States case in 1957 created a standard for what constitutes obscene material that is not protected by the First Amendment. The Court upheld the conviction of Roth in this case by a 6-3 vote. The Court defined obscenity as a “dominate theme taken as a whole appeals to the prurient interest to the average person, applying contemporary community standards”. William Brennan wrote the majority decision and confirmed that obscenity was not protected by the First Amendment. Justice Hugo Black and William O. Douglass dissented arguing that all obscene material was in fact protected by the First Amendment. Justice John Marshall Harlan II dissented because in his opinion only states had the right to prosecute obscenity and the federal government had no standing. In Memoirs v. Massachusetts in 1966 the Court updated its definition for obscenity as “patently offensive” or “without redeeming social value”. The Earl Warren Court’s decisions to broadly define obscenity helped fuel the sexual revolution in the late 1960s. In Miller v. California in 1973 the court further defined obscenity as lacking “serious literary, artistic, political or scientific value”. Justice Brennan changed his argument claiming “no formulations of this Court, the Congress, or the States, can adequately distinguish obscene material unprotected by the First Amendment from protected expression”. But others can argue that the opposite is true: can someone adequately distinguish obscene material protected by the First Amendment from protected expression. The bottom line, the Supreme Court’s meddling in issues beyond their jurisdiction did nothing to clear up obscenity and its application towards the First Amendment. It was a failure for the Court to overstep its bounds by setting convoluted and ever changing standards. The Court should have relied on the individual states to handle the issues surrounding obscenity since the Federal Government has no jurisdiction, but instead the Court relied on the First Amendment to intrude and meddle on state laws and statutes.

The 1965 case Griswold v. Connecticut was a landmark case where the Court struck down a statute which prohibited married couples from using contraception. The Court invalidated the law because it violated the “right to privacy” and people have the right to be free from “government intrusion” according to Justice William Brennan. Funny how the Court only sees government intrusion violations coming from the states but not from within its own chamber. By the 1950s only two states had statutes prohibiting contraception for married couples (Connecticut and Massachusetts). Obviously, states were invalidating these laws and the statute was rarely enforced (how would anyone know if the use of contraception was happening in privacy). Majority opinions varied on the application to the right of privacy from using the Fourteenth Amendment due process clause (Justice John Marshall Harlan II and Byron White) to the use of the Ninth Amendment (Justice Arthur Goldberg). The Ninth Amendment says “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage other retained by the people”. Liberals falsely claim that the Ninth Amendment guarantees rights not mentioned in the Bill of the Rights. The Ninth Amendment actually assures that nothing written in the Constitution can deny or cancel any of the Amendments. Justice William O. Douglas went further by declaring that the Bill of Rights contained “other Constitutional protections” (based on the imagination of each individual Justice?). Even a liberal Justice, Hugo Black, dissented. He correctly asserts that the right of privacy cannot be found in the Constitution. Justice Potter Stewart also dissented saying the statute was “an uncommonly silly law” but it was Constitutional because it was beyond the enumerated powers of the Federal Government to interfere.

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