First, I'm very glad the court recognized that "John Doe's" rights to due process had been violated.

Title IX needs to go the way of Prohibition and other really bad ideas implemented by the government that we have since gotten rid of.

The Goddess writes:

And the practices any of us choose to engage in in bed are none of the government's fucking business.

There is an argument that keeps coming up on issues like this. It's not a powerful argument but it does tend to squelch the "our government has no right whatsoever to tell us..." attitude.

When arguing for the individual's right to smoke or eat unhealthy things, the counterpoint is that your right to choose becomes my burden in taxes and insurance premiums.

This argument would also be applicable to that statement. The state does have an interest in protecting people from injury and preventing the spread of disease. Will the state take this as a license to tell us what we can or can't do in bed? Eventually. Probably.

And the practices any of us choose to engage in in bed are none of the government's fucking business.

You need to add "consenting adults" in there. As Patrick points out, this argument keeps coming up in cases like this. On the surface it sounds like a good argument, but it's not. It's a variant of the old "you're not the boss of me" taunt from elementary school and ignores real cases where the government had business interfering.

While Rick Santorum is a tool of reactionary right, he did have a good point in that the "what people do in the privacy of their own bedrooms is none of the government's business" argument makes no exception for child abuse, rape, or incest, all of which the government has an interest in preventing.

For years, many states had anti-sodomy laws aimed at making gay sex illegal, but that also had the unforeseen consequence of restricting even married sex to the missionary position. Thousands of married couples were violating the law on a regular basis.

The argument is: What consenting adults choose to do in the privacy of their own bedrooms should, in general, be none of the government's business.

I'll provide my answer: in which Constitution (state or Federal) is the State granted the authority to regulate sexual behaviour?

"The argument is: What consenting adults choose to do in the privacy of their own bedrooms should, in general, be none of the government's business."

As a legal standard, that's absolutely terrible, because it gives the government unlimited authority. What constitutes "in general"? I guarantee that after enough cycles through the courts, the phrase will mean whatever the government wants it to mean.

I think people are under-appreciating how problematic this is. It takes us back to the 1950s. If you're a man, have you ever had sex with a woman that you weren't married to? You can now go to prison for fornication and/or adultery. After all, we've seen in other contexts recently that government and society view single women, in many ways, as being "vulnerable persons", and feminists are demanding special government protections and services for them.

BDSM is role-playing. Should an actor be imprisoned for crimes committed by the characters that they portray? Yes, you can make an argument that actual physical harm should be prohibited. But again, the government tends to seek an expansive definition of "harm", extending to anything that seems unpleasant. People who are into that scene find some, er, unusual things to be pleasurable -- things that most people would probably find painful, but don't actually cause harm. In any kind of role-playing where there is a safety concern, you always need an "out of band" phrase or key to indicate that the role-playing should stop and the participants revert to "real world" conditions. In air combat exercises, they use the phrase "knock it off" to indicate that the exercise should stop, since other phrases that might normally be used to stop or alter operations might be part of the exercise.

Finally, Lawrence v. Texas. Eugene Volokh had a writeup on this that USA Today published last week. Basically, according to his analysis Lawrence only protects sexual conduct that has been "historically discriminated against" (not the exact phrase, but words to that effect). In Volokh's analysis, that pretty much means that ordinary, one-man-one-woman hetero sexual conduct is not protected by Lawrence. An implication is that a gay couple engaging in BDSM is protected, but a straight couple engaging in BDSM is not, and the latter's conduct can be regulated by the state. This sounds like a more restrictive reading than my understanding of Lawrence, but Volokh is a smart lawyer and I'm not.

"your right to choose becomes my burden in taxes and insurance premiums"

Most of which are related to adult spanking-related atrocities.

As a legal standard, that's absolutely terrible, because it gives the government unlimited authority. What constitutes "in general"? I guarantee that after enough cycles through the courts, the phrase will mean whatever the government wants it to mean. ~ Cousin Dave at March 21, 2016 7:23 AM

As a legal standard, yes. Too many holes. I didn't advance it as a legal standard, merely a political argument on the subject.

Unfortunately, even the best legal standard requires interpretation by the legislature, the regulators, and the courts, which can change on a whim. The government has given universities the latitude to regulate sexual misconduct and they've run with it.

My main objection to laws that regulate behavior is that we end up criminalizing ordinary behavior and behavior that deviates from the norm that, while sometimes unsettling, does society no harm. So, you want to dress up and play sex games. So what.

Rigid legal standards also have problems - usually in the form of maximum punishments for relatively minor violations.

The problem with possible injury or health risk as a justification for government intrusion, is that it opens the door to forbidding many things. In Japan, your waistline is subject to regulation since the gov pays medical bills. Motorcycle riding? Dangerous. Drinking sodas? NYC wants to ban them. Gun ownership? dangerous. There is no limit to nanny statism. In the UK a random citizen can get a restraining order on you if they think your behavior is "alarming".

Next, " 50 shades of Grey" should be banned from all libraries because of its ability to alter and mold young minds that the activity described in the book is o.k. Never mind that the book is a work of fiction and engaged in between consenting adults. we cannot let that book be read by the meek snowflakes on campus because it is a micro aggression.

Yes, you can make an argument that actual physical harm should be prohibited.

So, no boxing, MMA, football, soccer, baseball, wrestling, typing, handling paper?

Carple tunnel and paper cuts are harm too

"So, no boxing, MMA, football, soccer, baseball, wrestling, typing, handling paper?"

Good point, and that's what I get for rushing through and not considering all the implications. There is, I think, a fine line. If a sub thinks it would be exciting to have a dom drill a hole in their stomach with an auger bit, should that be legal? You can make an argument that a sane person would not make such a request, and so for the dom to comply with it is morally and legally problematic. Of course, you can also make an argument that a sane person would not play running back in the NFL. We do have bans on some activities that people might voluntarily participate in but are manifestly harmful, like Russian roulette.

"paper cuts are harm too"

Stop microagressing me! Thinking about paper cuts is painful and distracts me from writing my thesis on unwanted white male incursions on lunar territories!

"...unwanted white male incursions on lunar territories!"

If only we were actually doing that... sigh. On-topic: the Apollo program was killed largely due to the efforts of militant feminist Bella Abzug.