Can states criminalize fornication? No.

Florida’s Republican-controlled legislature, which busies itself creating jobs by holding hearings about things like transgender threats to public restrooms, is now debating whether to rescind a law that makes it illegal for unmarried people of the opposite sex to cohabitate. One would think that such a repeal would take around 5 minutes of legislative time, but then one would be overlooking the words “Republican controlled.”

Oddly, the Democrat who seems to be spearheading the effort to rid Florida of this statutory wart is focusing on the impracticality of the law rather than its idiocy. According to Frank Cerabino of the Palm Beach Post,

“It’s very impractical to know whether a man and a woman are living together platonically, romantically, and so on,” Florida Rep. Michelle Rehwinkel Vasilinda, D-Tallahassee, explained to the members of the House Criminal Justice Subcommittee on Wednesday.

Vasilinda’s trying to bring the Florida Legislature into the 21st century. No easy task.

“I think it would be distasteful to find out and prove whether or not somebody is actually living in a romantic relationship and not platonically,” Vasilinda told her fellow lawmakers.

Not to mention a lot of work.

There are 479,306 Florida households occupied by unmarried heterosexual couples, according to the last U.S. Census. That’s a 45 percent increase in shacking-up straight Floridians from the tally in the 2000 Census.

Or to put it another way, that’s a potential pool of nearly 1 million new criminals in Florida — or about 5 percent of the state’s population.

As to the opposition, Cerabino explains,

The heavy lifting here is being done by state Rep. Charles Van Zant, R-Palatka, who is Florida’s go-to guy when it comes to sex policing. It was Van Zant last year who pioneered the theory that Florida’s new standardized tests were trying to turn kids gay.

“Unless this is stopped,” Van Zant said about the testing, “it will now promote double-mindedness in state education and attract every one of your children to become as homosexual as they possibly can be.”

So it wasn’t surprising to see Van Zant assume a leadership role this week in speaking out against the sexy-time shacking-up bill.

“This flies in the face of your own marriage,” Van Zant told Vasilinda.

The cohabitation law was used in Florida in 1979 to suspend a company’s liquor license because six of the company’s employees were unmarried and living together. But it’s mostly just ignored.

Which is wrong, Van Zant told his fellow lawmakers, instructing them to heed the words of Justice 2 Jesus gadfly Brian Pitts, who told the legislative committee this week that the only problem with the law banning cohabitation is that it isn’t enforced enough.

“You need to talk to the judges and prosecutors and say this is the law on the books and it’s not antiquated,” Pitts said. “This is not Sodom and Gomorrah. You need to enforce the laws.”

So on one side, we see opponents of the law arguing that the law should be repealed because it would be unseemly to enforce it, while on the other side we see proponents of the law arguing that, no matter how hard it would be to enforce, Jesus is on their side.

As to the opponents of the law, their better argument (although maybe not as politically “sexy”) would be that, no matter how much Jesus might get behind Van Zant’s crusade against unsanctioned coitus, Van Zant’s cause is baldly unconstitutional.

That’s not because unrelated people have some kind of fundamental constitutional right to cohabitate (or “shack up”), but rather because the state lacks any legitimate interest in support of its law.

In Lawrence v Texas (1996), the US Supreme Court considered the constitutionality of a Texas law that criminalized homosexual sodomy. Although social conservatives on the Court (most notably Antonin Scalia) wanted to ruminate on (and fantasize about?) the merits of man-on-man fanny play, Justice Anthony Kennedy (a small-government conservative) thought that fanny fun was not the issue. Kennedy didn’t want to discuss the interest of individuals in undertaking certain conduct, but rather the authority of the government to regulate it.

I always tell students that the outcome as to any issue depends on how you frame it. If you ask, “Did the Constitution’s authors have man-on-man fanny play in mind when they cogitated about those activities that were the impermeable province of the people alone?” the answer would likely be no. But were you to ask, “Did the Constitution’s authors mean to establish a government that would have, among its limited powers, the authority to regulate fanny play?” the answer would again likely be no: same answer, opposite result.

Kennedy asked the latter question, with a majority of his brethren in tow. That’s why Scalia (who asked the first question) lost.  Official Photograph of Justice Anthony Kennedy

Along the way, Kennedy made one thing clear. He wrote the majority opinion in Lawrence, and in it, he explained that Texas’ law could not pass muster even under the most lenient test a court can apply to a state’s law. Because he never concerned himself with whether homosexual sodomy was in any way a fundamental right, he also never concerned himself with whether some more rigid standard of review should apply to the law. He said, why bother? We needn’t apply some rigid standard when the law can’t survive under any standard.

Put simply, all Texas had to do was show that it had a legitimate interest underlying its law. What Texas argued was that its law was based on morals: the majority of Texans found homosexual sodomy to be, well, icky.

Kennedy said that, having proffered nothing but a moral objection to the law, Texas had failed to provide any legitimate interest. In other words, any law based on nothing more than a moral objection to certain conduct is constitutionally invalid.

Apply that to Florida’s law and see what you come up with.

by Brendan Beery

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