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Notes -
STATUS GAMES
When people talk about "status games" 'round these parts, they're normally referring to our obsession with relative social status and the games that we play in order to increase it. However, this morning, I listened to oral arguments in City of Grants Pass v. Johnson, a case about a municipal ordinance, from a town in Oregon, prohibiting people from sleeping in public, at least with some 'aggravating' factor, like having a blanket. Of course, as is probably traditional for me at this point, I hardly even want to talk about the specifics of this case, at least not concerning homelessness. Instead, I'd like to jump off into questions of categories (which, uh, I guess are made for man?), agency, and the games we play with categories like 'status'.
The background is a 1962 case, Robinson v. California, referred to in all blockquotes from the Court as just "Robinson", which considered
SCOTUS held:
Details aren't the most important, but a vague sense of that backdrop is. If someone is "addicted to narcotics", that's considered just a "status", not actual behavior or conduct that can be regulated by the state.
This status/conduct categorical divide has a long history of being quite confusing, and this confusion was on full display at the Court. A Ctrl+F of the transcript shows 121 mentions of the word "status", and many of them are trying to figure out what counts. I collected more blockquotes than I could possibly clean up or feel comfortable bombarding TheMotte with, so I'll try to be sparing. First off, Justice Kagan asking questions of Ms. Evangelis, who is arguing on behalf of the city:
There is a bit of meandering that I'll omit, but it comes back to:
and finally:
Kagan may be the smartest of the liberal Justices, so it's probably no surprise that I think she got the closest to a conceptualization of status that is friendly to the left in this case. Unsurprisingly, though, "Republicans Pounce". Justice Gorsuch said that, "[T]he distinction between status and conduct is a slippery one and that they're often closely related," and had what was perhaps the most comprehensive exchange on the topic with Mr. Kneedler, who is the Deputy Solicitor General, weighing in on the case on behalf of the federal government, who was technically supporting neither party, but is obviously in practice representing the equities of the Biden administration portion of the left.
Oof, that was long and covered a lot. Gorsuch would go on to suggest that the Court should just push the case back the State for a "necessity" analysis and not "get into the status/conduct stuff that -- that Robinson seems to invite." Roberts, meanwhile, went after immutability in a colloquy with Ms. Corkran, representing the class of homeless people challenging the law.
But it would take Justice Jackson to blow up our first real bombshell of the argument, following up on the Roberts' discussion of immutability:
In summary, the Robinson Court was actually wrong on the facts. They thought that people could go from being addicted to drugs to not being addicted to drugs. So, they clearly didn't care all that much about permanency. But BOOM goes the claim that, apparently the New Correct Lefty Science has determined that people don't ever transition from being addicted to drugs to not being addicted to drugs. I guess I heard it here first. My years of shouting at clouds that Scott pointed out that basically all honest alcoholism rehabilitation studies fail to outperform a placebo and that narcotics rehabilitation studies don't even use measures like "stops taking narcotics" in favor of measures like "causes trouble for other people while using narcotics somewhat less often" is finally being adopted! (Frankly, in far stronger form that I would have even stated. I wouldn't say that people can't stop being addicted to drugs; just that we can't magically impose a "treatment" regime that is going to result in them stopping.) Wow! Was the failure of Oregon's decriminalization experiment so spectacular that we're no longer going to have endless claims that we can make everything completely legal, so long as we pray to the god of providing "treatment" (without any serious consideration of how this is going to happen or whether it will actually do anything)? I can hardly believe it.
As amazing as this concession to Justice Jackson was, Alito somehow at least comes close:
What's this?!?! A distinction between "having an urge" and conduct?!? In the realm of sexuality? Say it isn't so! How many times can The Lefties That Be just boldly admit that the entire slew of homosexual behavior to gay marriage cases were based on a fundamental lie?!
The more cynical among us might observe that status/conduct games seem to be yet another way that folks run away from agency, shielding anything that they like in terms of it "being who you are" or things that just "happen to you". There is no real theory here, and most attempts to justify it are pretty philosophically incoherent. It doesn't seem like the Court is going to buy this particular extension of The Game, but why wouldn't they try? They've had all these other victories, including effectively banning Christian groups from campuses, by substituting "status" in for "conduct/belief". Why are the Status Games so powerful?
I'm a little confused what the lie is supposed to be. In both Lawrence and Obergefell the state was discriminating against people because of their status. If two people of the opposite sex wanted to engage in some conduct they could, but if the two people were of the same sex they couldn't. The conduct wasn't at issue, the status of the participants was. Unless the idea is being a particular sex is conduct rather than a status? Or that the conduct is different if different people are doing it?
Mostly what @gattsuru said. We could have gotten a string of cases that treated sex as the status in question and then applied standard 14A intermediate scrutiny, but we didn't. Don't forget that it's not just Lawrence and Obergefell. It's Lawrence, Romer, CLS, Windsor, and Obergefell. They made an absolute hash out of the whole mess, and they certainly did not rest simply on distinctions being made based on the status of sex.
Would be the absolute peak of irony, however, in an alternate universe, to hear KBJ interrogate counsel with a frank and straightforward, "Can a person go from being the male sex to being the female sex?"
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Judith Butler certainly seemed to think so. Performative gender identity and all that good stuff.
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I challenge any gay man to have sex with his husband by inserting his penis into his husband's vagina.
More seriously, I've never read Lawrence, and don't particularly feel like subjecting my eyes or brain to tortured legal reasoning at the moment. Is it written in a way that would allow a state to criminalize anal sex in general without regard to the sex of the persons?
The law in question for Lawrence specifically only applied to homosexual sodomy.
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But approximately nobody wants to ban the penis-in-vagina conduct, and generally nature conspired to make the straight option the one that has the most unique options available. To get a purely conduct-based rule that prevents same-sex activity, you'd have to write something tortured like "you must not let two penises come in contact", and this would not only give lawmakers the vapours just having to put these words to paper but would also only capture some subset of same-sex activity (and the state would struggle to dispute a claim by a gay couple that they fastidiously avoided that particular act).
Maybe you could criminalise all sexual conduct that is also possible for same-sex couples; good luck with convincing a majority to make that sacrifice just to get at those pesky gays at last, or else to convince the higher courts that any selective enforcement is purely accidental.
I believe the sodomy laws common until 2003 actually did this. It was hypothetically just as illegal for a man to get his dick sucked by his wife as by another man.
But then those laws were almost never enforced against openly gay men and truly never enforced against straight couples using their mouths or butts.
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No tortured constructs needed, just prohibit penile stimulation of prostate.
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)?
"Constructive Possession" should create lots of hilarious edge cases as well. They become less hilarious when the government simply deploys a YesChad.jpg.
To be clear, this is not an endorsement, but rather an attempt to highlight the fact that the "struggle" inherent in law enforcement is not an innate feature of law enforcement, but rather a choice the enforcers are making. The truth value of the statement "This would be impractical to enforce" often smuggles in a number of assumptions about the nature of enforcement.
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.
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For the first type of edge cases, the same thing as sucking at marksmanship or having an insufficient weapon to penetrate the target. For the second type, are you arguing that piv sex in condom is not piv sex?
eta: chastity cages should be outlawed separately, for the reasons of their misandristic nature.
Charging someone with attempting sodomy, if we're taking the metaphor that direction, kinda just makes it funnier.
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.
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Again, how would the state prove that this happened, against a claim by a gay couple that they didn't do that? My understanding is that anal penetration as the sine qua non of gay sex is largely a product of the imagination of homophobes in a narrow sense, as it lives at some sweet spot of triggering their disgust reflex and being easy to describe.
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Are you familiar with the gun-law term "constructive possession"?
The "struggle" involved in proving a crime exists because the authorities in question want it to be a struggle. if they decide they don't feel like struggling any more, they can simply remove the struggle and go straight to enforcement.
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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:
(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.
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:
((Probably not helped by the guy in that case probably being a douchebag.))
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Technically no, but that's because the logic of Lawrence would extend Griswold and similar right-to-privacy cases to prevent the state from criminalizing sodomy between consenting adults of either the same or opposite sex. Quoting Lawrence:
The opinion then goes on to discuss various right to privacy cases and ultimately come to the conclusion a prohibition on sodomy would likely be unconstitutional applied to basically anyone. Quoting Lawrence again:
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