With all of the attention understandably being paid to the indictment of Donald Trump, a major district court decision announced yesterday was likely overlooked. The ruling in ACLU of Ark. v. Griffin concerns a lawsuit against the Arkansas Attorney General. The ACLU of Arkansas sued to block enforcement of SB 4592, the state law enacted last month that forbids (and authorizes felony imprisonment for up to five years for) "deviant sexual practices that were constitutionally proscribable in 1791, 1836, and/or 1868" (the respective dates of ratification of the Bill of Rights, Arkansas statehood, and the ratification of the Fourteenth Amendment). The complaint alleged that "deviant sexual practices" is unconstitutionally vague and that, if construed to include all sexual practices deemed deviant at any or all of the dates listed in the statute, would encompass clearly protected practices such as same-sex sodomy.
In an opinion partially granting and partially denying the ACLU's motion for a preliminary injunction, U.S. District Lee Rudofsky agreed with the plaintiffs that SB 4592 could not be constitutionally applied to "practices such as sodomy that the Supreme Court has (whether rightly or wrongly) already deemed constitutionally protected," citing Lawrence v. Texas, but "remains valid with regard to those practices that were clearly constitutionally proscribable at the relevant dates." By including "clearly" in that aspect of his denial of injunctive relief, Judge Rudofsky wrote, "today's order protects against any potential for unconstitutional vagueness."
According to the district court opinion, what practices does SB 4592 validly proscribe? Judge Rudofsky's "not-necessarily-exhaustive catalogue" listed: "bigamy, incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity." Does that list sound familiar? It should. The judge expressly borrowed it from Justice Scalia's dissent in Lawrence. Justice Scalia's list also included same-sex marriage, but Judge Rudofsky explained that, "in light of the Supreme Court's not-yet-overruled holdings in [Lawrence] and Obergefell v. Hodges, 576 U.S. 644 (2015), sodomy and same-sex marriage cannot constitutionally be proscribed, even though they fall within [the statute's] proscription of deviant sexual practices that were proscribed at all relevant times."
Although the ruling would seem to imperil not only masturbators, that aspect of the law and ruling have drawn the most attention, perhaps because of public statements by Arkansas Governor Sarah Huckabee Sanders. When asked whether, and if so, how the state would enforce the prohibition, the governor (who recently signed the legislation at a ceremony at which she was flanked by anti-masturbation activists) answered a different question, namely what purpose the law serves. "Just as I'm grateful to my mother for not aborting me and therefore we ban abortion, I'm equally grateful to my daddy for not spilling his seed and preborting me."
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