gattsuru
1d ago
That letter and five bucks won't buy you a cup of coffee, these days.
I'm very far from sure what Abbott intends for the Texas Education Agency to do/not do, but one important thing to remember is that, for states and federales, the law saying "shall" means absolutely squat without a directly connected enforcement mechanism and someone who can actually press the button on it. This letter might trigger ESEA compliance review stuff, since ESEA state plans have to comply with federal law in general (though it might not trigger until the next review?), but that ends up with a bunch of meetings before the feds can refuse to provide state funding. Title IX proper is supposed to depend on complaints filed regarding specific acts of discrimination (within 180 days of the act, not adjudicated by other bodies, yada), after which the DoE meets with, which (excluding criminal cases not relevant here) if refused can result in "initiate proceedings to suspend, terminate, or refuse to grant or continue Federal financial assistance to the recipient".
I expect Abbott's more relying on unrelated stays slowing any enforcement -- which seems a mediocre bet, since on one hand you've got the Fifth Circuit, but on the other it's this has been the writing on the wall since Bostock -- but barring that he's playing chicken.
(no, blue states have not denied federal forces the ability to operate, their examples of arguable nullification are more noncooperation than open defiance and resistance)
The line gets murky: refusing to honor an ICE detainer is probably noncooperation from a non-commandeering sense, but literally sneaking an illegal immigrant out the back door to help evade an ICE officer... well, there's a lot of metaphors where the Little People doing unfavored things would be sitting in jail.
gattsuru
20hr ago
I would... not be so sure the administration can avoid it if Biden wanted. See the Kincaid v. Williams denial of cert (starts at page 39) from last year as an example of what's going to start coming down the pike in earnest: a very broad law with expansive reads of standing, on a matter extremely sympathetic to progressive-leaning and left-leaning judges, and where individual private actors can bring a private right of action with staggeringly high penalties, and a ton of opportunity to forum shop.
Philosophically, there's a fun question about the difference between sending in the troops and charging 150k for each violation, but there's a point where the practical difference gets pretty small, and it happens pretty quick when the target's main assets will also be the tools necessary to not comply.
gattsuru
5d ago
For the first type of edge cases, the same thing as sucking at marksmanship or having an insufficient weapon to penetrate the target.
Charging someone with attempting sodomy, if we're taking the metaphor that direction, kinda just makes it funnier.
For the second type, are you arguing that piv sex in condom is not piv sex?
Dunno. There are sheathes that are like condoms in being full-enclosed (still not rated or tested as contraceptives, though I'd expect that regulatory reasons drive that more than practical ones), but most of them range from an eight-inch to more than a quarter-inch of silicone all around. Their point is to alter texture, appearance, and/or girth/length, but especially since some are dual-use as dildos or even intended for women or trans men to wear, the line between stimulating the prostate with a sex toy and stimulating it with the top's dick isn't very clear.
At least to my intuitions, a condom is very much the same underlying sex act, but there's a point where a gal wearing the same sex toy can hit the same button that makes it a lot harder to call the penis doing the stimulation. But my intuitions aren't anywhere near yours.
gattsuru
5d ago
Yeah, that's absolutely fair, and 'constructive possession' is in many ways just the tip of the iceberg, as bad as the shoestring machine is. Stuff like autokeycard, the various recent regulatory changes, Abramski, so on, very much show the limits of textual formalism as a control protecting the actually disfavored, even to the point of blocking defendants from raising the text.
gattsuru
6d ago
Texas' law was somewhat unusual in that it had originally had prohibited heterosexual sodomy, but had been revamped, possibly by accident, such that only same-sex sodomy was actually punishable. Anal sex, among other things, was defined as "deviate sexual intercourse" regardless of who did it with whom, but it was only an offense if done with "another individual of the same sex".
((It also restricted homosexual oral sex, and possibly using a dildo or a sounding rod on someone else, though I've not seen any evidence of it actually being used in this way.))
And O'Connor's concurrence pushed on this hard: she held that it mattered that the state was expressed moral disapproval not of an act, but of an act being done by a group:
This case raises a different issue than Bowers: whether, under the Equal Protection Clause, moral disapproval is a legitimate state interest to justify by itself a statute that bans homosexual sodomy, but not heterosexual sodomy. It is not. Moral disapproval of this group, like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause. See, e. g., Department of Agriculture v. Moreno, 413 U. S., at 534; Romer v. Evans, 517 U. S., at 634-635. Indeed, we have never held that moral disapproval, without any other asserted state interest, is a sufficient rationale under the Equal Protection Clause to justify a law that discriminates among groups of persons.
(emphasis added)
But only O'Connor signed onto that concurrence, which even at the time came across as a nitpick. The majority opinion, which received five votes but not O'Connors, didn't rest on it being a status-based offense, in no small part because the courts were still trying avoid committing to treating homosexuality as a special status, with even status-based SCOTUS matters like Romer hiding behind rational basis. Lawrence argued certain types of 'intimate contact' outside the scope of the general police power, so it invalidated not just bans on (consensual private non-commercial adult) sodomy, but also a wide variety of other private behaviors.
The laws involved in Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.
This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects. It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons.
In theory. Like a lot of that era of SCOTUS jurisprudence, there's a decent chance that these lofty principles get smothered under balancing tests. It's not clear how this applies to situations like extreme BDSM; so far, the only relevant cases have generally alleged consent violations, sometimes pretty credibly. But where courts have had cause to evaluate restrictions under the assumption they would be applied in a consenting framework, they often do so by reframing Lawrence post-hoc, generally by promoting the O'Connor concurrence:
Under the Lawrence methodology, history and tradition continue to inform the analysis. See id. at 2598 (“History and tradition guide and discipline [the implied fundamental liberty interests] inquiry but do not set its outer boundaries.”). Yet, courts must consider not only the history and tradition of freedom to engage in certain conduct, but also any history and tradition of impermissible animus that motivates the legislative restriction on the freedom in order to weigh with appropriate rigor whether the government's interest in limiting some liberty is a justifiable use of state power or an arbitrary abuse of that power. In this respect, the conclusion reached here under the Glucksberg line of reasoning that there is no deeply rooted history or tradition of BDSM sexual activity remains relevant and important to the analysis. Also relevant and important to the analysis is the absence of a history of impermissible animus as the basis for the restriction at issue here. Sexual activity that involves binding and gagging or the use of physical force such as spanking or choking poses certain inherent risks to personal safety not present in more traditional types of sexual activity. Thus, as in Cruzan and Glucksberg, a legislative restriction on BDSM activity is justifiable by reference to the state's interest in the protection of vulnerable persons, i.e. sexual partners placed in situations with an elevated risk of physical harm. Accordingly, consistent with the logic of Lawrence, plaintiff has no constitutionally protected and judicially enforceable fundamental liberty interest under the Due Process Clause of the Fourteenth Amendment to engage in BDSM sexual activity.
((Probably not helped by the guy in that case probably being a douchebag.))
There's a lot of hilarious edge cases that proposal invokes -- could a gay man defend his partner's honour by claiming he just sucked at topping, missed the button every time? Was too short, just let the tip in? The Texas law in question prohibited stimulation with a sex toy (by a same-sex partner), but I've never seen evidence it was enforced; are we just giving up on that here? What happens with a penis sheathe? Strap-on over chastity cage (50+ images on e621)?
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