Swingers Clubs ruled legal in Canada

December 22, 2005 10:20 AM

Newsfilter: Sex Clubs OK in Canada ruled the Supreme Court yesterday in a 7-2 decision that drastically alters the definition of indecency in this country. What will be the results of this far-reaching change? Will gay bathhouses and marijuana growing be affected? Will there be anti-social behaviour? "Now harm, rather than community standards, is the key yardstick that will be used to measure the point at which constitutional freedoms can be limited".
posted by stinkycheese (213 comments total)

Road trip!
posted by R. Mutt at 10:24 AM on December 22, 2005

Well, now that it's legal I think Mrs. Turtles and I are going to have to try out one of these establishments! Is there a weight limit, does anybody know?
posted by Turtles all the way down at 10:26 AM on December 22, 2005

Man... the US just keeps getting worse and Canada just keeps getting better!

Once they build a retractable roof over the entire country, so it's not cold as BALLS all the time, I'm there!!
posted by BobFrapples at 10:26 AM on December 22, 2005

Heh. The Globe and Mail has an alarmist editorial this morning moaning how the next thing we see will be folks renting hockey arenas for giant (private) mass orgies, or, bizarrely, they paint a picture of a business setting up in Red Deer (uh, Red Buck maybe) Alberta offering (private) orgy-tourism to the dismay of the local Mennonites.

Meanwhile, they don't really offer much rationale why anyone not involved in the circle jerk should give a flying fuck.

I'm not involved in the circle jerk and I don't give a flying fuck
posted by Rumple at 10:30 AM on December 22, 2005

Canada: Fuck? Yeah!
posted by Faint of Butt at 10:30 AM on December 22, 2005

So, in Canada, if you're not harming anyone you can do whatever you want? What are this judges, sane? Where is the irrationality? Where the hell this guys got the notion this kind of civilized behavior is somehow acceptable?
posted by nkyad at 10:31 AM on December 22, 2005

Metafilter: I'm not involved in the circle jerk and I don't give a flying fuck.
posted by nkyad at 10:32 AM on December 22, 2005

Oh, *that* supreme court!!? Shit.

Well, y'all have fun now, ya'hear? Down here community standards reign, unless we can import somebody else's even more strict community standards to use local yokel laws to shut down internet sites.
posted by zpousman at 10:33 AM on December 22, 2005

Alarmist indeed. Maybe the Mop and Pail didn't actually read the judge's exact wording:

"Consensual conduct behind code-locked doors can hardly be supposed to jeopardize a society as vigorous and tolerant as Canadian society."

I wish I lived in a vigorous and tolerant society.
posted by chuq at 10:34 AM on December 22, 2005

Meanwhile, Tim LaHaye has just started writing his next book, in which Moses makes his way down Cascade Mountain with a pair of stone tablets, just itching to throw them against something hard. Oh, and Bill Clinton and Kofi Annan have just commissioned the creation of a Golden Calf. Dude, God is going to be so pissed. But hey, at least the rapture is getting closer every day!
posted by billysumday at 10:39 AM on December 22, 2005

Oh Canada!
Our fit and sexy land!
Free swinger love is all thy sons command.

With growing parts we see thee rise,
The True North clothing free!

From thin to wide,
Oh Canada, your swingers can swing free.

All people can sleep with who they may!
Oh Canada, your swingers can still play.

O Canada, your swingers can still play.

...

Thenkyew, thenkyew...I'll be here all week.

(it just struck me that God is in the Canadian anthem and no one gives a rats ass, pretty much.)
posted by Kickstart70 at 10:42 AM on December 22, 2005

Is it just me, or has the Globe and Mail become just about unreadable recently? And does this mean that if something goes wrong up here, then we can't expect God to help?
posted by Elpoca at 10:43 AM on December 22, 2005

Now Windsor will be for something other than 19-year-olds drinking!
posted by klangklangston at 10:46 AM on December 22, 2005

This is good news for more than just swingers clubs. Essentially, consenting adults have been given permission to do whatever they want behing closed doors, as long as nobody is harmed.
The problem with the previous 'community standards' test for decency is that community standards are set by the loudest complainers, who are often the least tolerant, and not representative of the overall community at all.
posted by rocket88 at 10:47 AM on December 22, 2005

In an unrelated story, 3000 men in leather diapers and fishnet stockings were seen swimming across the Great Lakes this morning. Authorities are baffled.
posted by jonmc at 10:47 AM on December 22, 2005

I saw that too, jonmc, but I assumed it was the drugs taking hold.
posted by joe lisboa at 10:55 AM on December 22, 2005

And boy are my arms tired!
posted by maxsparber at 10:57 AM on December 22, 2005

gee, in seattle we have this really neat place called 'the wet spot' that's . . . *really* interesting . . . I went once out of curiosity with a friend . . . A whole 'nuther aspect of society that was.
posted by mk1gti at 11:02 AM on December 22, 2005

Once they build a retractable roof over the entire country, so it's not cold as BALLS all the time, I'm there!!

It's a balmy 58.1 Fahrenheit today in Vancouver, Jewel of the Pacific. That old canard about it being cold as BALLS in Canada is just homeland security bushwa...
posted by 327.ca at 11:03 AM on December 22, 2005

It's a balmy 58.1 Fahrenheit today in Vancouver, Jewel of the Pacific. That old canard about it being cold as BALLS in Canada is just homeland security bushwa...

Oh shit... they got to him!!
posted by BobFrapples at 11:06 AM on December 22, 2005

Prime Minister Trudeau invoked the "harm-based" test when he made gay sex legal.

"The state has no business in the bedrooms of the Canadian people"

A quote from the Globe and Mail article: Essentially, the court has ruled "when you close the door and only have invited guests who know exactly what's going on in the premises, then the law does not extend behind that closed door," Prof. Young said.

I like this new harm-based test. It seems like social progress to me.

Re: Globe and Mail being unreadable - haven't noticed yet, but I'm dropiing my subscription to Maclean's - since the National Post editor took over, its essentially become a Conservative Party rag.
posted by SSinVan at 11:09 AM on December 22, 2005

Now harm, rather than community standards, is the key yardstick that will be used to measure the point at which constitutional freedoms can be limited

So is this an attempt to field test Freud? Or is it an attempt to make Plato cry?
posted by dios at 11:09 AM on December 22, 2005

Another little step forward for sanity.
posted by lupus_yonderboy at 11:11 AM on December 22, 2005

Also, does this mean that seat belt laws are now unconstitutional? They fail the harm analysis.
posted by dios at 11:11 AM on December 22, 2005

Hooker goes into an old age home, asks for ol' man Waldo, who's celebrating his 95th birthday today and whose friends thought he'd just love the chance to have another go.

When the receptionist steers the comely wench to Waldo's room, she bursts in the door, flings open her coat to reveal nothing but the body that God and some really fine tummy-tuckin' surgeons have created.

"I'M HERE TO GIVE YOU SUPER SEX!" she smiles.

Waldo looks up from his crossword puzzle -- eyes her up and down -- looks wistfully over at his windowledge where there are about a million "Happy 95th!!!" cards decorating it, gives his head a gentle shake, smiles right back and says, "If it's alright with you, ma'am, I'll take the soup."
posted by Mike D at 11:12 AM on December 22, 2005

327.ca, HFS! That's three times the temperature here in Milwaukee (Siberia of the South), Wisconsin.
posted by drezdn at 11:12 AM on December 22, 2005

327.ca probably just got dragged off to an orgy. I'm in Vancouver too... it's rainy but warm, probably because of all the heat generated by the orgies, dontchaknow.
posted by Zack_Replica at 11:22 AM on December 22, 2005

327.ca, HFS! That's three times the temperature here in Milwaukee (Siberia of the South), Wisconsin.

You can't multiply temperatures measured in celsius or fahrenheit. To multiple, convert to Kelvin. Assuming it's 19.3F in wisconsin, that's 266 Kelvin versus 287 Kelvin in BC. So it's only 7% warmer in BC than in Wisconsin.

As for seatbelts, it's never been indecent (except in the moral sense) to not wear your seatbelt.
posted by duck at 11:23 AM on December 22, 2005

Although I feel the moral obligation to stick around the Deep South and "fight the power" with my whopping one vote, Vancouver is looking better and better every day.
posted by LordSludge at 11:24 AM on December 22, 2005

Also, does this mean that seat belt laws are now unconstitutional? They fail the harm analysis.

How so? You'll never find an actuary who will agree that it's safer to not use a seat belt.
posted by solid-one-love at 11:25 AM on December 22, 2005

dios : "So is this an attempt to field test Freud? Or is it an attempt to make Plato cry?"

dios : "Also, does this mean that seat belt laws are now unconstitutional? They fail the harm analysis."

Looking for a fight, dios? I understand this sort of extreme foreign rationality may be painful, but you must learn to relax.
posted by nkyad at 11:25 AM on December 22, 2005

Looking for a fight, dios? I understand this sort of extreme foreign rationality may be painful, but you must learn to relax.

Actually, Dios has an interesting point. If law is based solely on harm to the community, are seat belt laws valid? You're not risking anyone but yourself.
posted by unreason at 11:28 AM on December 22, 2005

The problem with the previous 'community standards' test for decency is that community standards are set by the loudest complainers, who are often the least tolerant, and not representative of the overall community at all.

Truthful

Essentially, consenting adults have been given permission to do whatever they want behing closed doors, as long as nobody is harmed.

There will be some work to do on the definition of harm and consensual behavior..but certainly, it's better to have law enforcement concentrated on harm then on expressions of sexuality

And from the article

"What makes it wrong to exchange money to buy the sex?"

From a gratification point of view, nothing. It's also a possible transaction , but it's not an ordinary one in the sense that buying an orgams isn't like sipping some liquor or smoking a cig to obtain gratification.

Alcohol gratifies by removing some superificial inhibitions and by altering the state of mind and I guess it also acts as an antidepressant ? Similarly, cigarettes work at dopamine receptor level, causing dopamine highs = peaks of pleasure .

Sex ? I guess another big dopamine high but I don't know the underlying chemistry , at least it's not intoxicating in the chemical sense of the term..meaning sex doesn't cause intoxication unlike alcohol or nicotine (which was also used as a pesticide, being a poison).

So why shouldn't one buy sex to obtain gratification as buying cig or alcohol or drug ?

Because it should come for -free- as it's the "reward" for succesful interaction with another human being the other sex ...which brings more rewards expecially under the form of increase social skills, possibily dispelling fears and learning to get along with others. Promoting orgasm as a pay-for candy would probably have negative consequences.
posted by elpapacito at 11:28 AM on December 22, 2005

Ignoring seatbelts leads to all sorts of secondary harm. It is definite harm if parents neglect to belt minors and there is an accident. It is a secondary harm if someone rides without a seatbelt and becomes injured to the point where family has to make severe economic sacrifices based on negligent behavior. Or a parent rides without seatbelt and dies as a result therefore causing harm to child.

whereas privet sex between consenting adults that take the basic precautions is pretty risk free. There are/will be cases of STD transmission, but the overwhelming majority of those will be through neglect which would seem to be an actionable offense.

It (seatbelt) may be an interesting case, but I don't see how the two things relate directly, one is talking about morals and privacy the other about safety while operating a vehicle which is not a right but a privilege..
posted by edgeways at 11:30 AM on December 22, 2005

Are Canadian sex clubs as clean and friendly as Canadian cities? That might take the thrill out of it for me. But the decision is a good one.
posted by bardic at 11:30 AM on December 22, 2005

Re: Globe and Mail being unreadable - haven't noticed yet, but I'm dropiing my subscription to Maclean's - since the National Post editor took over, its essentially become a Conservative Party rag.

And have you seen the redesign? Hideous. It looks like Omni magazine c. 1984, only much more cluttered and confusing.
posted by Evstar at 11:31 AM on December 22, 2005

dios & unreason: Also, does this mean that seat belt laws are now unconstitutional? They fail the harm analysis.

First of all, as duck points out, this "harm" test is only relevant to Canadian obscenity analysis, seatbelts don't fall under this rubric (unless...).

Secondly, no, seatbelt laws do not fail the harm analysis. As long as emergency rooms are open to all comers, you increase the risk of harm to the commonwealth by increasing the chances that you'll need emergency room treatment. Since sealtbelts are a very non-intrusive way to reduce this chance, requiring them easily passes any harm/benefit analysis.
posted by rkent at 11:33 AM on December 22, 2005

private, always have trouble with spelling that word for some reason
posted by edgeways at 11:33 AM on December 22, 2005

elpapacito : "Because it should come for -free- as it's the 'reward' for successful interaction with another human being the other sex"

I don't know if I follow you. I would understand "Because optimally it should... ". But I don't see why it would follow that either the supplier or the consumer of paid sex should be criminalized (in the event the sex for money offer comes "without harm", from a consenting adult that has not been forced into the situation by someone else).
posted by nkyad at 11:35 AM on December 22, 2005

From a gratification point of view, nothing. It's also a possible transaction , but it's not an ordinary one in the sense that buying an orgams isn't like sipping some liquor or smoking a cig to obtain gratification.

Actually the article doesn't mention this, but adults exchanging money for sex is legal in Canada. What's illegal is pubic solicitation (street walking), brothels, and living off the avails of prostitution (pimping).
posted by bobo123 at 11:35 AM on December 22, 2005

By not wearing a seatbelt, you're risking the insurance liability of anyone who gets in a accident with you.
Legislation requiries liability insurance for all drivers, so the government has a responsibility to do everything in it's power to lower your risk, including limiting driving speeds and requiring seatbelt use.
posted by rocket88 at 11:36 AM on December 22, 2005

By not wearing a seatbelt, you're risking the insurance liability of anyone who gets in a accident with you.
Legislation requiries liability insurance for all drivers, so the government has a responsibility to do everything in it's power to lower your risk, including limiting driving speeds and requiring seatbelt use.

Couldn't the same rationale be used by the government to regulate private sexual activity with the excuse of preventing the transmission of STDs in light of nationalized healthcare?
posted by gyc at 11:44 AM on December 22, 2005

I would like to point out that I live right beside this club (NSFW), that is understandably overjoyed by the ruling. It's quite a scene on Saturday nights. Unexpectedly, the clientele (outside smoking, of course, I wouldn't know what the inside looked like) looks quite attractive, and not at all what I thought the swinger stereotype was.
posted by loquax at 11:44 AM on December 22, 2005

In the east they have opium. In the middle east they have hashish. In the west we have women. (paraphrase from the "opium" fpp yesterday)
posted by stbalbach at 11:48 AM on December 22, 2005

gyc: Couldn't the same rationale be used by the government to regulate private sexual activity with the excuse of preventing the transmission of STDs in light of nationalized healthcare?

From the second link: The only real danger to participants was that they might catch a sexually transmitted disease, but this is "conceptually and causally unrelated to indecency," Judge McLachlin wrote.
posted by stinkycheese at 11:49 AM on December 22, 2005

Secondly, no, seatbelt laws do not fail the harm analysis. As long as emergency rooms are open to all comers, you increase the risk of harm to the commonwealth by increasing the chances that you'll need emergency room treatment. Since sealtbelts are a very non-intrusive way to reduce this chance, requiring them easily passes any harm/benefit analysis.
posted by rkent at 1:33 PM CST on December 22

Secondly, no, public sex laws do not fail the harm analysis. As long as emergency rooms are open to all comers, you increase the risk of harm to the commonwealth by increasing the chances that you'll need emergency room treatment for sexual transmitted diseases. Since public sex laws are a very non-intrusive way to reduce this chance, requiring them easily passes any harm/benefit analysis.


Look, here is my point: the same argument that can be made regarding secondary harm can be made for every law on the books. That is, after all, why those things are against the law. At some point society deemed them to "harm" something.

The Canadian Supreme Court seems to be adopting Mills harm analysis, and the classic example of a paternalistic law that fails Mills harm analysis are seatbelts. Now if they are limited only to sexual matters, then the seatbelt issue doesn't apply. But if that is the direct Canadian law is going to take, at some point you have to quesiton whether paternalistic laws are accpetable and whether a democracy has any right to establish laws based on morality.
posted by dios at 11:54 AM on December 22, 2005

gic - The logic could be used that way, but the activities are fundamentally different. Driving is a privilege which is performed in the public sphere, and obviously isn't a fundamental human activity since it's only been around a hundred years. Sex is a basic human activity, like eating, breathing, thinking , and expressing one's self, and it's done in the private realm.

Governments have a lot more right to regulate activities like the former than activities like the latter

Note that I don't think this has much to do with what this thread is about, it's just about your question about private sexual activity.
posted by spira at 12:02 PM on December 22, 2005

Does anyone here honestly believe seatbelt laws are "based on morality?" Anyone? No, I didn't think so.

Seatbelt laws: utilitarian application of a restriction "behind closed doors" that effects a great reduction in death and injury in exchange for a very modest encumberance. We are in agreement, I believe, that there is no significant sense of outrage or oppression on the part of the seatbelted.

No-sex laws: morals-based (or "taste-based") application of a restriction "behind closed doors" that effects a nonexistant-to-moderate reduction in death and injury in exchange for a potentially huge and significantly happiness-restricting encumberance. This, I'd say, exchanges the happiness of one person for that of another (and not necessarily in an exact ratio)

I hope you'll find it's more useful to compare these in an honest way, rather than simply trying to jam them into some formula about "telling people what to do is wrong" or "all current US laws are good and let's not hear of any objection to them."
posted by rxrfrx at 12:06 PM on December 22, 2005

The Globe and Mail has an alarmist editorial this morning moaning how the next thing we see will be folks renting hockey arenas for giant (private) mass orgies

Is Jeffrey Simpson (an American) still in charge of writing the editorial column?
posted by clevershark at 12:06 PM on December 22, 2005

I assume that dios knows that good libertarians (i'm not one) don't support seatbelt laws. Laws in a country are inconsistent?! Hells bells. Let's fuck.
posted by zpousman at 12:11 PM on December 22, 2005

Once they build a retractable roof over the entire country, so it's not cold as BALLS all the time, I'm there!!

Come on now, it was a whole 5 degrees (F) when I headed to work this morning, it's not *that* cold!

In January, THEN it'll be "cold as balls".
posted by clevershark at 12:12 PM on December 22, 2005

dios is always an expert at derailing threads into oblivion. There's no right to drive a car in the first place. The state could require you to wear a purple vest and yellow hat at all times behind the wheel if it wanted to.
posted by kjh at 12:12 PM on December 22, 2005

The seatbelt comparison is practically idiotic, but what about a comparison with smoking. Could you open an establishment with the express purpose of allowing consenting adults the opportunity to smoke in one another's presence?
posted by Chuckles at 12:15 PM on December 22, 2005

Also, seatbelt laws only apply to public roads, you can/should drive however you want on your backyard track, etc etc
posted by rxrfrx at 12:15 PM on December 22, 2005

I'm glad we here at Metafilter can so easily see past one of the classic debates of Philosophy of Law and quickly answer firmly questions which plagued lesser thinkers like HLA Hart, Lord Devlin, John Stuart Mill, Joel Feinburg, etc.
posted by dios at 12:15 PM on December 22, 2005

Dios: Emergency room treatment for STDs? Did you even read what you wrote?

Doctor, Doctor! My wang has a wart! I demand you operate immediately!
posted by Sparx at 12:17 PM on December 22, 2005

appeal to authority 9,999,993
posted by rxrfrx at 12:17 PM on December 22, 2005

I am vehemently opposed to people having group sex in moving vehicles without wearing seatbelts.
posted by Faint of Butt at 12:18 PM on December 22, 2005

One is regulatory the other is morality. If they only focused strictly on No Harm they would have to close down factories that produced pollution, the army, hell even taxation. I believe this is a narrow ruling in the area of privacy, there is no reason to believe it has anything to do with anything else other then what it addresses. sheesh
posted by edgeways at 12:19 PM on December 22, 2005

Are Canadian sex clubs as clean and friendly as Canadian cities? That might take the thrill out of it for me. But the decision is a good one.

This brings to mind all kinds of amusing scenarios:

"Oh, hey, you're a dirty hoor arencha there eh? But, like in a nice way, eh? Excuse me! Sorry!"
posted by Turtles all the way down at 12:19 PM on December 22, 2005

dios: ... Or is it an attempt to make Plato cry?

That works for me.
posted by lodurr at 12:19 PM on December 22, 2005

Could you open an establishment with the express purpose of allowing consenting adults the opportunity to smoke in one another's presence?

In Boston, the rule is that you can only have smoking in a "cigar bar" or similar thing if it gets at least 60% of its revenue from tobacco-related stuff.
posted by rxrfrx at 12:19 PM on December 22, 2005

I simply don't think the matter of "if it's right in this situation, it's also right in this other situation regardless of the circumstances or differences" ever realistically applies.

It's like comparing apples and oranges and then peeling apples with the same method you would use to peel oranges.

Determining the situation, the similarities to other situations, and then judging what applies and what doesn't is a job of the courts - particularly in the cases of constitutionality.

When seat belts (or some other such) become an issue for the courts, then perhaps we will see them challenge this ruling with all due consideration. Until that time, saying that this brief snippet from the overall ruling invalidates such-and-such because of some hackneyed opinion about Canadian legal matters is a gross oversimplification and will only lead to much nonsense and gnashing of teeth.
posted by C.Batt at 12:20 PM on December 22, 2005

dios: the correct analogy is not between group sex and wearing seatbelts. We demand seat belt use, but don't expect people to stop driving. The correct analogy is to demand people at group orgies wear condoms. And, honestly, I expect this to become a law in short order; otherwise it will become a public health risk, and condoms will prevent most of that risk.

But, man, I'd love to see the equivalent to police seat-belt checks that this would entail.
posted by freedryk at 12:20 PM on December 22, 2005

dios: Look, here is my point: the same argument that can be made regarding secondary harm can be made for every law on the books. ...

Only if you assume that all harms are equal. And only a fool would do that.
posted by lodurr at 12:21 PM on December 22, 2005

... for every law on the books. That is, after all, why those things are against the law. At some point society deemed them to "harm" something.

You were honestly doing pretty good up to this point, then you ran into the "well surely it's against the law for a good reason - I mean it wouldn't be against the law if it wasn't bad" kind of thing, which is certainly a naive position to take. After all, slavery was legal for quite awhile, and we all know what a great idea that was.

Have you considered even trying to look at this from a detached perspective for once? That is, without letting your obvious personal distaste influence your otherwise semi-logical thinking?
posted by odinsdream at 12:22 PM on December 22, 2005

The Canadian Supreme Court seems to be adopting Mills harm analysis, and the classic example of a paternalistic law that fails Mills harm analysis are seatbelts.

Not in a country with socialized medicine, it doesn't.

I'm glad we here at Metafilter can so easily see past one of the classic debates of Philosophy of Law and quickly answer firmly questions which plagued lesser thinkers like HLA Hart, Lord Devlin, John Stuart Mill, Joel Feinburg, etc.

Whereas I think of you as being a lesser thinker than, say, at least seven of the justices of the Supreme Court of Canada, at least speaking from the perspective of Canadian jurisprudence.
posted by solid-one-love at 12:27 PM on December 22, 2005

Just from reading the article, it appears that what was at issue was the definition of Indecency. The courts ruled that indecency was defined not by "community standards" but by some evaluation of "harm." It doesn't look like an attempt to apply this to all law, but only laws concerning indecency. It doesn't seem relevant to seatbelt laws, or other broad applications.

That said, I would argue that governmental regulation of private consensual sexual behavior is more paternalistic than not.
posted by elwoodwiles at 12:28 PM on December 22, 2005

As long as emergency rooms are open to all comers, you increase the risk of harm to the commonwealth by increasing the chances that you'll need emergency room treatment for sexual transmitted diseases.

added to thingsdiosdoesntknowaboutsex.txt
posted by Optimus Chyme at 12:29 PM on December 22, 2005

But if that is the direct Canadian law is going to take, at some point you have to quesiton whether paternalistic laws are accpetable and whether a democracy has any right to establish laws based on morality.

True. I don't know if I follow you on the secondary harm point, dios (because it requires making a causal link between lack of sex laws and increase in STD's, which seems difficult) but this ruling raises some very fundamental questions about the role of government in Canada.

Here, we're seeing once again the clash of Act Utilitarianism vs. Rule Utilitarianism, with the government of Canada adopting a decidedly Act Utilitarian POV in this case. Any given act of two or more consenting adults that brings them pleasure, when it does not harm another individual, is deemed OK by the Canadian Supreme Court. The effects of instituting a rule based on this policy seem to not be a factor in the decision.

Like stbalbach, I too am thinking back to the Opium link from yesterday. Much of what is said in that link is true: the act of smoking Opium cannot be said to cause harm to anybody but the individual. It, in fact, produces pleasure in the individual. But, instituting a rule of law in which Opium is fully legal has all kinds of reprecussions for the economy, productivity, the long-term health of the individual, etc.

Personally, I say Paternalistic laws be damned, but I say this fully understanding that a libertine society is likely to succumb to other, more regimented societies in the long term. But, I don't care.

Eat, drink and be merry, for tomorrow we shall die!
posted by rockabilly_pete at 12:30 PM on December 22, 2005

rockabilly_pete: What are you, some kind of communist? Have you no decency, man? Know you not wright from wrong?
posted by lodurr at 12:35 PM on December 22, 2005

elwoodwiles: The courts ruled that indecency was defined not by "community standards" but by some evaluation of "harm."

Sure, but which form of "indecency" causes harm in any quantifiable way? (please, lets not get bogged down in talk of STDs)

My question about smoking is quite misguided, I guess. Not "practically idiotic" though, like that seatbelt stuff...
posted by Chuckles at 12:35 PM on December 22, 2005

rockabilly_pete, this just puts the weirdos on the same playing field as the happily married couples who can screw 3 times a day if they like.
posted by Space Coyote at 12:38 PM on December 22, 2005

Chuckles: That's a good question. I'm not a lawyer, much less versed in Canadian constitutional law, but according to the article:

Acts must be shown to be harmful to the point where they "interfere with the proper functioning of society" before they can be labelled indecent, Chief Justice Beverley McLachlin wrote.

So I think an indecent act much be shown to have harmful effects to be illegal. No harm can be assumed, it must be proven.
posted by elwoodwiles at 12:41 PM on December 22, 2005

dios, in Canada knowingly having sex with an STD without warning your partner has been construed (several times) as criminal assault, so your particular argument is a bit of a nonstarter. I can't imagine these clubs operating without either requirements for clean bills of heath or latex barriers.

If you are trying to argue that not everything should be put to the harm test, then why not? I fail to see how the seatbelt example holds. If one is injured in a traffic accident, that person harms society by consuming police, rescue and healthcare resources that could be directed elsewhere. Harm has a collective sense here as well as a strictly individual one. I really don't understand your argument.
posted by bonehead at 12:42 PM on December 22, 2005

rockabilly_pete: Here, we're seeing once again the clash of Act Utilitarianism vs. Rule Utilitarianism, with the government of Canada adopting a decidedly Act Utilitarian POV in this case.

The act/rule distinction can only apply if you make some assumption about the effect of group sex on individuals and/or society. However, we don't have any knowledge of the actual effects of group sex on either - beyond the immediate, of course. So, I can't see how you can draw any such conclusion. Maybe I am just poking holes in Utilitarian philosophy...

Or as elwoodwiles just put it: So I think an indecent act much be shown to have harmful effects to be illegal. No harm can be assumed, it must be proven.
posted by Chuckles at 12:54 PM on December 22, 2005

There is a philosophic question here that is being glossed over, and it is one that I have tried to suggest. There has been a long and historical debate about the right of democracies to establish laws based on anything other than the harm principle. Most (all?) democratic societies have not adopted the harm principle as the basis for democratic will. That is, the democratic people retain authority to establish laws within its sphere of authority (the limitation of that sphere being the individual rights of citizens). This ruling alters that balance. It presents serious questions regarding the direction of Canadian law: will this principle be expanded by the Court?

It is important to note that Canadians did not pass a law permitting this. This was a judicial decree overturning democratic prerogatives. Had Canadians wanted the law to be thus, they could have passed the law allowing it. But democratic prerogative to regulate areas that society deems indecent has been supplanted by an undefined (and sure to be litigated) harm principle. The Court stepped in and weighed in on the Hart-Devlin debate and ruled that Canada must now follow the harm principle on this matter. Where does that authority to make such a ruling derive from? How does the Court define individual rights? Is having sex in public an individual right?

Either society can establish community standards or it can't. This Court says they can't (though, as some note, the opinion seems limited to the question of "decency").

What of public nudity? Is is unconstitutional to ban public nudity? Should the Court authorize walking around naked as the day one is born right through the public square? What of hate speech? What of urinating in public?

These are hard questions which must be asked and answered regarding the proper role of democratic majorities to govern.

Look, I haven't made any moral judgment about this law. To be honest, I don't really care. I am just more concerned on the effect and direction of such thought. I have already said I several times on this site that I am a libertarian authoritarian. That is, I don't care where democratic majorities set the line, but wherever it is, you better damn well follow it. For all I care, a democratic majority could authorize public pedophilia sex while smoking crack in public squares as long as one doesn't wear a purple shirt (and if one does, its a life sentence). And I wouldn't have a problem with the person smoking crack and nailing a 5 year old in public, but if that fucker wears that purple shirt, his ass needs to go to the clink for life.

So I really don't have an negative opinion on whether public sex should be allowed. But that doesn't mean this ruling presents some serious questions about the right of democracies to establish laws it deems reasonable. And as much as some of you can't stand the fact that I might question this ruling, serious philosophic questions exist.
posted by dios at 12:56 PM on December 22, 2005 [2 favorites]

What of public nudity? Is is unconstitutional to ban public nudity? Should the Court authorize walking around naked as the day one is born right through the public square? What of hate speech? What of urinating in public?

These are hard questions which must be asked and answered regarding the proper role of democratic majorities to govern.

Why?
posted by Faint of Butt at 12:59 PM on December 22, 2005

...whereas privet sex between consenting adults that take the basic precautions is pretty risk free.

'cept for the splinters.
posted by fish tick at 12:59 PM on December 22, 2005

Because either it is a ruling limited to the facts, or it is a ruling that establishes a test that all other decency laws must comply with. And if other laws must comply with it, public nudity regulations, urinating in public, hate speech and all other "public decency" questions are now subject to a requirement of establishing actual harm.
posted by dios at 1:01 PM on December 22, 2005

Dios, why not play your little slippery slope implications game with the old standard of 'ickyness' as legal yardstick?
posted by Space Coyote at 1:03 PM on December 22, 2005

Because either it is a ruling limited to the facts, or it is a ruling that establishes a test that all other decency laws must comply with. And if other laws must comply with it, public nudity regulations, urinating in public, hate speech and all other "public decency" questions are now subject to a requirement of establishing actual harm.

So?
posted by Faint of Butt at 1:03 PM on December 22, 2005

dios, you are completely ignoring the distinction between private and public acts. Sorry, leaving it up to someone else to find a place in law where the distinction is drawn... It was a basic principal of the man responsible for coding the charter of rights though, so I'm sure it is there.
posted by Chuckles at 1:07 PM on December 22, 2005

dios, I'm not sure if what the ruling is saying is that the government (or a society for that matter) can or cannot establish community standards.

I see the ruling as a reflection of a state of affairs where there is no such reasonable interpretation of current laws that PREVENTS these acts if they are carried out in private between consenting adults.

I do not see how this stops the society from establishing a law, or changing its constitution (an extremely strong action for sure) in order to outlaw such activity.

Please clarify.
posted by C.Batt at 1:09 PM on December 22, 2005

It is important to note that Canadians did not pass a law permitting this. This was a judicial decree overturning democratic prerogatives.

And thus we further see that you have no understanding of Canadian law. First, read the Constitution and Charter. When you understand the role of the judiciary in Canada, get back to us.

Hint: There was no prerogative overturned.

Hint #2: Upholding the Charter is exclusively the responsibility of the Supreme Court of Canada.
posted by solid-one-love at 1:10 PM on December 22, 2005

dios: Either society can establish community standards or it can't.

True enough, but you haven't established that this negates the ability to establish community standards. In fact, I would argue that the ruling is made in cognizence of a basic distinction between public and private spaces. From the article in the Star:

Under the ruling, public sex would meet the test of indecency, but orgies and partner swapping among adults in private do not. Acts must be shown to be harmful to the point where they "interfere with the proper functioning of society" before they can be labelled indecent, Chief Justice Beverley McLachlin wrote. [emph added]

All of your examples concern public spaces. Thus, they don't really apply.
posted by lodurr at 1:12 PM on December 22, 2005

The act/rule distinction can only apply if you make some assumption about the effect of group sex on individuals and/or society. However, we don't have any knowledge of the actual effects of group sex on either - beyond the immediate, of course. So, I can't see how you can draw any such conclusion.

Well, yeah... I don't want to come off as sounding like I know what the effects of legalizing these kinds of sex clubs will be. It's just that the judges' ruling is more interested in the immediate outcomes of particular sex acts, which (all other things being equal) seem to be good for the individual, should she or he choose to participate in them.

There's no mention of the wider impact on society, which I think is a good thing. Because, as you said, who the hell knows at this point. It's a refreshing change from the reactionary bullshit we have to put up with here in the US, where people come out of the gate assuming they know what the wider impact will be.

I'm just saying that, from personal experience, liscence to indulge gives rise to all kinds of degeneracy and sloth. It will probably doom us all. But, it's a good time, so fuck it.
posted by rockabilly_pete at 1:13 PM on December 22, 2005

I am a libertarian authoritarian. That is, I don't care where democratic majorities set the line, but wherever it is, you better damn well follow it. For all I care, a democratic majority could authorize public pedophilia sex while smoking crack in public squares as long as one doesn't wear a purple shirt (and if one does, its a life sentence). And I wouldn't have a problem with the person smoking crack and nailing a 5 year old in public, but if that fucker wears that purple shirt, his ass needs to go to the clink for life.
posted by dios at 12:56 PM PST on December 22

what the fuck
posted by Optimus Chyme at 1:14 PM on December 22, 2005 [1 favorite]

solid-one-love:
You are right, I do not have any expertise on Canadian law. I never proclaimed to. If you think something I said was inconsistent with Canadian law, please let me know why. I would be interested to understand it. My understanding is that laws are passed by legislative bodies, not judicial ones. So if a law existed prohibiting something, that would be a legislative act of democratic will. If the judiciary overturns it, it is overturning democratic perogatives. If that is not the case in Canada, please explain. It would add much more to the conversation than snark or insults.
posted by dios at 1:14 PM on December 22, 2005

dios: What of public nudity?

From The Federation Of Canadian Naturalists website (note: some nudity at the top of the page; may be NSFW):

The Canadian Criminal Code and Public Nudity
Section 173
(1) Every one who willfully does an indecent act (a) in a public place in the presence of one or more persons,or (b) in any place, with intent thereby to insult or offend any person, is guilty of an offense punishable on summary conviction.
(2) Every person who, in any place, for a sexual purpose, exposes his or her genital organs to a person who is under the age of fourteen years is guilty of an offense punishable on summary conviction.

Notes:
Sunbathing - Mere nude sunbathing is not of sufficent moral turpitude to support a charge for doing an indecent act. (Beaupre(1971)) British Columbia Supreme Court

"Willfully" means "deliberate" or "intentional" as opposed to "accidental" or "inadvertant" and it is not further necessary to show that the accused knew and intended to perform the indecent act in the sight of others. (Miceli(1977)) Ontario Provincial Court

Section174
(1) Every one who, without lawful excuse, (a) is nude in a public place, or (b) is nude and exposed to public view while on private property...is guilty of an offence...

(2) For the purpose of this section, a person is nude who is so clad as to offend against public decency or order.

Notes:
This offence is not aimed at conduct such as swimming nude at an isolated beach, even where the accused misjudges the loneliness of the beach. (R.v.Benolkin et al. 1977)

(3) No proceedings shall be commenced under this section wothout the consent of the Attorney General.

I also found this site which provides an interesting overview of "Canada's silly sex laws". Particularly interesting was this bit on the charges against Gwen Jacob who had been arrested for toplessness:

Jacob was initially convicted, but in 1996 the Ontario Court Of Appeal ruled that her “indecent exhibition” did not pose any risk of harm, and was thus not properly the subject of criminal charges.
posted by stinkycheese at 1:15 PM on December 22, 2005

does this mean that seat belt laws are now unconstitutional? They fail the harm analysis

This doesn't discard paternalism at all. But bible-based morality != state paternalism.

As a lawyer dios should be aware of the "undue burden" test.

Seatbelts are not an undue burden on the individual's liberty, given the balancing of societal concern for the health of the individual.

If AIDS or other untreatable STDs become commonplace in these venues, or these activities result in associated harms like people becoming unproductive addicts, or child molesters, then the state would need to revisit the legalization of these facilities.

The state could require you to wear a purple vest and yellow hat at all times behind the wheel if it wanted to.

At the federal level, there is a "necessary and proper" test, not to mention "due process" that the judiciary applies to statutes.

No mention of the Texas sodomy case? In that decision, the SCOTUS held that:

Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.

In the Bowers case that Lawrence overruled, Burger stated:

"Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization. Condemnation of those practices is firmly rooted in Judeao-Christian moral and ethical standards."

Conservatives want to keep age-old "Judeo-Christian standards" while Liberals say "fuck that shit, show me the harm".

Stevens, in his Bowers dissent:

"Our prior cases make two propositions abundantly clear. First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack. Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of "liberty" protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons."

The three conservative asshats that were on the court: Scalia, Rehnquist, and Thomas, disagreed.
posted by Heywood Mogroot at 1:15 PM on December 22, 2005

Optimus Chyme: what the fuck

Of course he doesn't really believe that. But the rules of civil discourse require that we pretend he does.
posted by lodurr at 1:17 PM on December 22, 2005

As a lawyer dios should be aware of the "undue burden" test.

dios doesn't seem to believe in relying upon the exercise of judgement. He tends to require absolute rules that don't permit any wiggle-room.
posted by lodurr at 1:18 PM on December 22, 2005

that would be a legislative act of democratic will. If the judiciary overturns it, it is overturning democratic perogatives

"democratic perogatives" cannot restrict individual rights without due process!

Furthermore, Congress only has powers granted to it via the "necessary and proper" clause.

State constitutions are different, but the 14th Amendment jurisprudence holds that we enjoy our rights, protected by the due process.

What the fuck x 100, dios. Your thoughts as expressed above are repulsively unamerican. We have common-law rights to be let the fuck alone, we instituted government to protect our rights, not arbitrarily limit them via majoritarian bullshit.
posted by Heywood Mogroot at 1:20 PM on December 22, 2005 [1 favorite]

Er, not quite. The case for/against seatbelts is not comparable. Society already reserves the right to require users of the public roads to meet several criteria, i.e. getting a license, and seatbelts is just one of many criteria. If you want to drive around on your own property you can speed, not wear a seat belt, and even drive drunk. Comparing consensual sex behind closed doors to driving on public roads is a bit silly because the key point here, again, is that it's happening on private property, behind closed doors, and nobody's rights are being violated.
posted by nixerman at 1:20 PM on December 22, 2005

How the harm analysis would work: Some hypotheticals, go ahead and tinker away.

Group sex behind closed doors: Okay, that's the case. No evident harm. Some underlying assumptions: Everyone's a consenting adult and has taken reasonable precautions against the spread of disease or against unwanted pregnancy. I would guess that if you don't have consenting adults, or if someone's health is in jeopardy (and you could define that pretty broadly), the state could interfere.

Group sex outdoors in a public space: The public hasn't consented, so some potential harm there. More importantly, there's a risk that children might be around. Most people (all I hope) would agree that exposure of children to sexually explicit materials is a big harm.

Urinating in a public space: Again no consent. Interfering with the ability of others to use and enjoy public space, that's a harm. (Reverse application of the "don't shit where you sleep" principle.) And there's a public health issue (yes, I know, it's sterile, but still).
posted by Scooter at 1:24 PM on December 22, 2005

Heywood Mogroot:What the fuck x 100, dios. Your thoughts as expressed above are repulsively unamerican. We have common-law rights to be let the fuck alone, we instituted government to protect our rights, not arbitrarily limit them via majoritarian bullshit.

They're also a little inconsistent with his positions on presidential authority, methinks. The president operates in a clear minority (one in three hundred million), and yet has prerogative to do whatever he deems appropriate in a time of "war". The only way to justify that is via a "harm test": It would harm the nation to place restrictions on presidential action.

(It seems clear to me that as congressional representatives may be elected more recently and, since elected at a finer grain, more closely represent "democratic" will, their authority ought to trump the President's. But then, IANAL.)
posted by lodurr at 1:24 PM on December 22, 2005

Scooter: Sterility of urine is a myth. So there you go, you're golden.
posted by lodurr at 1:26 PM on December 22, 2005

Dios,

it appears that you (and probably the rest of us) are assuming that there is a law on the books that prohibits this kind of behaviour.

This ruling basically says one of two things:

1) there is no existing law prohibiting this activity

or

2) if there is a law prohibiting this, then it is in conflict with the constitution/charter of rights and freedoms, that the constitution/charter supercedes the law, and that the law is therefore unconstitutional and is thus over-ruled.

In either case, they are not making up a law. They are interpreting and applying the existing body of law.
posted by C.Batt at 1:26 PM on December 22, 2005

Either society can establish community standards or it can't

Community standards of what?

I think we also have rights to live in a "decent" society, to be free from "nuisance" in our daily affairs, to be able to raise kids without having potentially dangerous or disagreeable temptations thrown at them.

Individual acts that contribute to a climate of indecency and nuisance, like masturbating in public, should be restricted via legislation.
posted by Heywood Mogroot at 1:28 PM on December 22, 2005

I am a libertarian authoritarian.

Not sure how this example incorporates libertarianism. If dios truly believe what he wrote he is an outright authoritarian, at which point there is no point in continuing the discussion as he will fall back on consistent appeal to force argument (only as long as the masses approve it mind you).

which may explain a lot about why dios and metafilter-in-general tend to be so at odds.

That quote might have been a poor move as I expect it will be referenced to death, much as the famous PP quote that gets floated about so much.
posted by edgeways at 1:30 PM on December 22, 2005

My understanding is that laws are passed by legislative bodies, not judicial ones.

And the Charter of Rights and Freedoms trumps all. The Supreme Court's job is to interpret and uphold the Charter. This is not the role of the legislature, the government or the citizens.

Section 1 of the Charter makes it clear that limits to freedoms (such as the fundamental freedom of association outlined in Section 2) can only exist if they can be demonstrably justified in a free and democratic society. The Supreme Court, however, as the sole interpreter of the Charter, gets to decide what is justified.

They didn't pass a law; they overturned a law. That's their job.

If the judiciary overturns it, it is overturning democratic perogatives.

It is doing no such thing. When the Constitution was enacted in 1982, it effectively and retroactively eliminated any prerogative for the legislature to pass any law that contravened the Charter. Aside from that, there is not and never has been any democratic prerogative to pass illegal legislation.
posted by solid-one-love at 1:32 PM on December 22, 2005

Sex clubs ok in Canada?

I thought they were GREAT!
posted by mazola at 1:32 PM on December 22, 2005

dios, you're missing the Canadian context. There's an explicit balance in the Canadian charter of rights and freedoms between how laws can regulate society and the individual (rights). It's enshrined in our carter of rights as "rights and freedoms set out... subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society". That's the line the judge was skirting here. The harm standard is the yardstick the judge used to determine that balance. A legislature can pass any law it likes, but those laws must be "justifiable in a free and democratic society". The harm metric is this judge's method of interpreting that balance.

And yes, hate speech and obscenity decisions are usually framed in "harm-based" arguments in Canada (at least from my nonlawyer perspective).
posted by bonehead at 1:35 PM on December 22, 2005

Comparing consensual sex behind closed doors to driving on public roads is a bit silly because the key point here, again, is that it's happening on private property, behind closed doors, and nobody's rights are being violated.

I believe the state has a rightful interest in protecting people from their own stupidity. I haven't fully hashed out this doctrine, but I have no problem with eg. motorcycle helmet laws, even though they are a significant limitation of the freedom to have the wind in one's hair (and/or brains), and the actual damage to society is only your own increased medical expenses should you wreck (and that could be addressed, I guess, by higher insurance premiums for those desiring to go helmet-less).

Nobody's rights are being violated by people not wearing their seatbelts. It's a more subtle argument that it's a damn-fool stupid thing to do to not wear a seatbelt, and the aggregate behavior of this stupidity costs societal support service money to take care of these idiots, when such a simple protective device at minimal cost of liberty, saves us the hassle.

I am aware that similar logic can be applied to smoking bans, but I believe there is no "undue burden" that a smoker can take to limit the costs to society of his exercising his freedom to smoke. Simply taxing cigarettes to recoup the costs to society should be sufficient to cover the costs to society of people engaging in this activity.
posted by Heywood Mogroot at 1:37 PM on December 22, 2005

Also seatbelts are meant to protect other occupants of the car. The rear belts (I believe) were introduced mainly to prevent back seat passengers from impacting and injuring those in the front.
posted by mazola at 1:40 PM on December 22, 2005

(in Canada it is not uncommon to see more than 1 person/vehicle).
posted by mazola at 1:41 PM on December 22, 2005

Use of seatbelts dramatically improves your ability to respond to unexpected events such as loss of control or violent manouvers. Without the seatbelt, you can be thrown around in your seat, and lost the ability to control the car. With a three-point seatbelt, you will generally retain the ability to work the wheel and the pedals.

Thus, seatbelts directly improve safety. You don't need to talk about insurance premiums or reduced health care costs to argue for requiring seatbelts.
posted by lodurr at 1:44 PM on December 22, 2005

Can we get away from the vehicular bondage discussion and back to the canuck-humping?

Cheers.
posted by longbaugh at 1:46 PM on December 22, 2005

Dios Writes: Also, does this mean that seat belt laws are now unconstitutional? They fail the harm analysis.

Numerous studies have proven that wearing seat belts not only increases your chances of surviving or not being hurt in an accident, but also lowers number of secondary accidents by helping the driver to maintain control of the car after the initial impact. Not wearing a seatbelt increases the chance of you doing harm to others.
posted by jba at 1:46 PM on December 22, 2005

arg, what lodurr said.
posted by jba at 1:47 PM on December 22, 2005

Um dios, I would reprint your opinions on drug induced pedophilia, but it would just make me feel even dirtier. What really struck me though is you are basically saying you don't believe in anything. You give power to the authority, and whatever the authority says should be followed. We have no rights, no moral value or really any reasonable personhood under your view - which I find pretty absurd. I do have a better understanding of why you do what you do - you lack the basic respect people have for one another. Just my opinion, I guess. Take that as you will.
posted by elwoodwiles at 1:48 PM on December 22, 2005

It seems clear to me that as congressional representatives may be elected more recently and, since elected at a finer grain, more closely represent "democratic" will, their authority ought to trump the President's

George Will had the interesting observation that Congress has pride-of-place as Article I in the constitution, the Executive being Article II.

The Bushies argue that the Executive enjoys "plenary" and other high-falutin' powers that are inherent in the very limited Article II language making the President the Executive and giving him CinC responsibilites.
posted by Heywood Mogroot at 1:48 PM on December 22, 2005

Well, we could go back to helmet laws. Helmet requirements are simply state paternalism.
posted by Heywood Mogroot at 1:51 PM on December 22, 2005

Are you in the right thread, Heywood? :-)
posted by C.Batt at 1:52 PM on December 22, 2005

I think he wanted the one about the detachable foreskin.
posted by longbaugh at 1:55 PM on December 22, 2005

You give power to the authority, and whatever the authority says should be followed.
posted by elwoodwiles at 3:48 PM CST on December 22

Yeah. It's called being a citizen of a representative democracy. As a citizen in a representative democracy, the majority has the right rule within the sphere of its authority (that is, it is limited by individual constitutional rights). Within that sphere, I submit to the right of majorities.

Perhaps you find such a view to be abhorrent. I call it being a democrat and find kindred spirit with James Madion, chief architect of the Constitution.

Majorities rule in democracy. Is that such a revolutionary concept here?
posted by dios at 1:58 PM on December 22, 2005

nkyad: I don't see why it would follow that either the supplier or the consumer of paid sex should be criminalized

Neither do I and indeed I didn't say that they should be criminalized, did I ? Oh wait, if by criminalized you mean "making sexual transaction illegal" I didn't say it should. Yet I think that sale of sexual acts (and I mean primarily by sexual acts vaginal, anal or oral intercourses ) shouldn't be promoted (advertised)

To keep it very short, it should NOT be illegal to smoke, or drink (unless you're driving or about to drive) or to pay for sex BUT they shouldn't be promoted activities. The first two because they're actually harmful for physical and psycological health the third because sex without proper protections can be very dangerous and also because in my opinion sexual act should optimally come for FREE, sex being the payment of sex.

Paying for sex, while possible, doesn't encourage people to find their own sexual mate and therefore don't encourage the human interactions that would make intercourse more likely to happen. It's a shortcut and not an healthy one, in my opinion.
posted by elpapacito at 2:01 PM on December 22, 2005

their authority ought to trump the President's

As I attemped to argue in another thread, the Constitution trumps both Congress and the Executive. (But it doesn't trump the SCOTUS since it gets to say what the Constitution means, subject to the Executive simply ignoring it should the SCOTUS become abusive).

Congress has legislative authority, but this power cannot (Constitutionally) limit the Constutional powers of the Executive. Though Article II, where these powers are described, is remarkable terse as to what, exactly, these powers are.

Firstly, the President is the Executive. Constitutionally, this means Congress hands off the execution and administration of the legislative acts it enacts.

Additionally, there is a Constitutional responsiblity as Commander In Chief. Roosevelt initially used this power to have the military round-up Japanese-American citizens on the West Coast, which was pretty deleterous to their civil liberties.

That Congress ratified this action is good enough for dios, apparently. Geez.
posted by Heywood Mogroot at 2:06 PM on December 22, 2005

Umm... Heywood, dios, what the fuck? We're talking about CANADA. You get to blither about your Supreme court all day everyday. Take it outside, thanks.
posted by raedyn at 2:08 PM on December 22, 2005

Majorities rule in democracy. Is that such a revolutionary concept here?

And as Republicans are fond of reminding us, the United States is not a democracy. Is Canada? I honestly don't know.

Once again, dios, you've derailed the thread into an argument completely unrelated to the topic of the FPP, and we've gone right along with you like...

...like...

I've just figured out the perfect term to describe people who follow trolls and do whatever they say. It's so apropos I can't believe it's never come up before. Ladies and gentlemen of MetaFilter, dios has played us all for a bunch of billygoats.
posted by Faint of Butt at 2:09 PM on December 22, 2005

Sex clubs and billygoats. Good times, good times.
posted by mazola at 2:12 PM on December 22, 2005

Majorities rule in democracy. Is that such a revolutionary concept here?

oh fuck, Ironies of Ironies.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. --That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness

While the DoI is not controlling law, its ideals are what launched the revolution and establishment of the present goverment.

And of course, dios, we are a Constitutional Democratic Republic, not just a "democracy". Each of those words means something.
posted by Heywood Mogroot at 2:12 PM on December 22, 2005

And as Republicans are fond of reminding us, the United States is not a democracy. Is Canada?

It isn't. We're a constitutional monarchy.

And I don't think that dios is trolling. He is making well-reasoned points. It's just that those points are completely ignorant of Canadian jurisprudence, irrelevant to the situation (citing US law) or strawmen (seat belts).
posted by solid-one-love at 2:13 PM on December 22, 2005

raedyn, point taken :)
posted by Heywood Mogroot at 2:13 PM on December 22, 2005

BTW, no law was overturned. People can still be charged with "indecency". What qualifies as "indecency" has changed. Now the court has said if it's consensual, and in private, not harming anyone, it can't be considered indecent. Fucking in the park is still indecent.
posted by raedyn at 2:13 PM on December 22, 2005

raedyn, point taken :)
posted by mazola at 2:17 PM on December 22, 2005

Umm... Heywood, dios, what the fuck? We're talking about CANADA. You get to blither about your Supreme court all day everyday. Take it outside, thanks.
posted by raedyn at 4:08 PM CST on December 22

Um, Heywood is the one that is talking about American government. Not me. I was talking about Canadian law and actually asking about it. So please properly direct your outrage.

And of course, dios, we are a Constitutional Democratic Republic, not just a "democracy". Each of those words means something.
posted by Heywood Mogroot at 4:12 PM CST on December 22

Do you think pointing that out somehow corrects or alters anything I previously said? Do you think I am unaware of this fact? Did you miss the part that I referred to individual rights and the Madisonian system?
posted by dios at 2:17 PM on December 22, 2005

It's just that those points are completely ignorant of Canadian jurisprudence

US jurisprudence too.
posted by Heywood Mogroot at 2:18 PM on December 22, 2005

Gah. I stepped away for a bit and see there are numerous questions directed to me. Please e-mail me or direct a question to me again if you are waiting for answer. I can't go back and respond to each person who was directing something to me.
posted by dios at 2:20 PM on December 22, 2005

So -- what were we talking about?
posted by ericb at 2:21 PM on December 22, 2005

dios is funny
posted by mr.marx at 2:22 PM on December 22, 2005

So -- what were we talking about?

Porn. Sweet, sweet porn.
posted by solid-one-love at 2:22 PM on December 22, 2005

I dunno, dios -- is US jurisprudence driven by the Federalist Papers, or by the Constitution?

And what is the relationship of any of them with the concept of the tyranny of the majority?

In any case, what you're talking about isn't law or right -- it's what you think is right. You clearly feel very strongly about this rigidly rule-driven society. I find that ironic, since you spend so much time agitating against the local majority and its (implicit) rules.
posted by lodurr at 2:24 PM on December 22, 2005

Two things:

1. Even given the explanation of Canadian constitutionalism, I don't see how that effects the Hart/Devlin debate. That is, what is being argued is that the Canadian constitutional rights can't be abridged. The question is, of course, who defines those rights? The Supreme Court. Well, then as a practical matter, could they not define any right broad enough to limit legislative authority? If you protect something as nebulous as "freedom" that term can be tortured to take everything out of legislative authority. Or is privacy a right under Canadian law? So are legislature forbidden from passing all laws which might limit that?

I understand the technical point solid-one-love is making. But as a practical matter, does it answer whether Canada can make paternalistic laws or moral laws?

2. The sealtbelt issue. I did not bring it up because it is a direct analog. I brought it up because it is the classic paternalistic law that is often brought up in discussions of the right to make paternalistic or moral based laws. It is a broad picture question regarding the extent the harm principle can be pushed.
posted by dios at 2:27 PM on December 22, 2005

I'm surprised to hear all the interest from the Americans. I'm constantly hearing about 'swing states' in the US press, I didn't think this would be a big deal.
posted by mazola at 2:28 PM on December 22, 2005

I dunno, dios -- who defines any rights, anywhere?

Presumably, Canadians familiar with their Charter and Constitution would say that the rights in question were defined therein, and then interpreted by the Court -- just as they would be in the United States.

It seems to me that what you have a problem with is the concept of interpretation.
posted by lodurr at 2:35 PM on December 22, 2005

Apparently, orgies save lives:

In the cold northern climates of Canada, orgies also provide several important benefits to society. “Orgies provide a socially acceptable venue for adults to gather and cuddle for warmth” Mr. Blankman explained. “It should also be noted” continued Mr. Blankman, “that large, grunting masses of flabby white people are an excellent deterrent against polar bear attack. Bottom line: orgies save lives.”

posted by Davenhill at 2:39 PM on December 22, 2005

And what is the relationship of any of them with the concept of the tyranny of the majority?

Well, Madison, in the Federalist papers and in formulating the Constitution of the United States tried to suggest an answer to the tyranny of the majority question. It is often called the Madisonian dilemma. The United States was founded as a Madisonian system, which means that it contains two opposing principles that must be continually reconciled. The first principle is self-government---there are areas of life in which majorities are entitled to rule because they are majorities. The other principle is that of minority rights; there are some areas where majorities cannot effect minority autonomy. The "dilemma" part of the "Madisonian dilemma" is that neither minorities nor majorities get to define the proper sphere of majoritarian authority or minority individual liberty. If the balance shifts in either direction, either tyranny of the minority or tyranny of the majority results. So we have a complex system set up to define rights, balance power and diffuse it, by holding regular elections, and establishing constitutionally protected rights. If a tertium quid enters the picture to tilt the balance in one way or another; if a power does not protect properly-understood individual rights or if it is not scrupulous enough in its respect for the right of majorities to govern, tyranny will be abetted---either tyranny of the minority or majority. So its the structure itself of the limiting government which resolves the dilemma.

I don't know if Canada followed that example, but it sounds like a lot of discretion to define rights has been left to the Canadian judiciary. Thus it would seem to me that the same problem would exist as exists in the US: the key and ultimate question is how neutrally rights are derived, defined and applied.
posted by dios at 2:41 PM on December 22, 2005

So there's no problem. The Canadian Supreme Court is simply helping to adjust the balance between majoritarianism and the rights of the individual. Right?
posted by lodurr at 2:47 PM on December 22, 2005

Madisonian system

We don't live in a Madisionian system of government. Madison was not the sole arbiter of what went into the constitution.

Did you miss the part that I referred to individual rights

yes, I did, because you yourself seem to be not cognizant the legislative power of the majority being bound by the "necessary and proper", "due process", and "rational basis" tests of the independent judiciary.

Here's what you wrote:

"As a citizen in a representative democracy, the majority has the right rule within the sphere of its authority (that is, it is limited by individual constitutional rights). Within that sphere, I submit to the right of majorities."

That's close, though I would change that to Constitutional Democratic Republic to more precisely describe our form of government.

You continue:

"Perhaps you find such a view to be abhorrent. I call it being a democrat and find kindred spirit with James Madion, chief architect of the Constitution."

with an passive-aggressive insult.

And then topped it off with a non-sequitur:

"Majorities rule in democracy. Is that such a revolutionary concept here?"

that erroneously stripped off the Constitutional limitations of majoritarian rule.

As does Justice Thomas in his Lawrence dissent, I might add:

"Notwithstanding this, I recognize that as a member of this Court I am not empowered to help petitioners and others similarly situated. My duty, rather, is to "decide cases 'agreeably to the Constitution and laws of the United States.' " Id., at 530. And, just like Justice Stewart, I "can find [neither in the Bill of Rights nor any other part of the Constitution a] general right of privacy," ibid., or as the Court terms it today, the "liberty of the person both in its spatial and more transcendent dimensions," ante, at 1."

It's not a matter of finding individual rights in the Constitution -- they are plenary as described by the 9th Amendment -- it's a matter of finding powers that can justify, by substantive due process and rational-basis tests, legislative acts that restrict individual liberty.
posted by Heywood Mogroot at 2:48 PM on December 22, 2005

But I stress, that is just one interpretation of how the tyranny of the majority is protected against. There is also Dean John Hart Ely's theory about how to protect against tyrannies of the majority. He would disagree with a Madisonian (or originalist or constitutionalist). He would argue that the key is to protecting against tyrannies of the majority through the voting process. When minorities are at a distinct disadvantage and are being trampled on, we engage in representation re-inforcement to protect insular minorities.

My point is that there a lot of ways to protect against tyranny of the majority and different theories on how to do it. But in the end, taking the power away from them in areas that doesn't effect individual rights seems like the most un-democratic way.

Again, though, the question is at what level of abstraction an "individual" right is neutrally defined, derived and applied.
posted by dios at 2:48 PM on December 22, 2005

dios, we hit the reset button on our legal system 23 years ago. There is no equivalent to the Federalist Papers in the Canadian system. We have the Charter of Rights and Freedoms. That's the font of Canadian rights. Laws and judgements prior to 1982 can be useful precident, but are not considerd to outweigh the charter.

This descision appears to me to be very much a judicial interpretation of that first line of the charter that both sol and I quoted. That's the Canadian balance. It's explicit in our primary rights document.
posted by bonehead at 2:50 PM on December 22, 2005

While I am no expert on Canadian constitutional law, some of the balance between the courts and legislative bodies is provided by the infamous "Notwithstanding Clause".

As such, both federal and provincial legislatures can override the constitution (and/or charter) when and where they see fit. For example, Quebec's (in)famous bill 101, prohibiting non-French store signs above a certain size.

I think this may fill some of gap dios is wondering about concerning who does what in the Canadian system. (I think). Recently, the notwithstanding clause has been brought up in the context of provinces prohibiting same-sex marriage. Any sort of contentious issue inevitable sees the notwithstanding clause dragged in, even if I don't always understand why.
posted by GuyZero at 2:56 PM on December 22, 2005

And as a left-libertarian I find your apparent support for arbitrary majority rule:

"That is, I don't care where democratic majorities set the line, but wherever it is, you better damn well follow it."

simply abhorrent, and ridiculous, as that's NOT the basis of our system of government, and if it were, I would agitate for change.

I find the majority decision of Lawrence that I quoted above to be a good description of what our form of government is, and I understand Canada's to be similarly structured.
posted by Heywood Mogroot at 2:57 PM on December 22, 2005

This descision appears to me to be very much a judicial interpretation of that first line of the charter that both sol and I quoted. That's the Canadian balance. It's explicit in our primary rights document.
posted by bonehead at 4:50 PM CST on December 22

I appreciate that. That helped clear up some things for me.

On preview:

well... until GuyZero's comment.

That Notwithstanding clause is wild. That obviously throws a giant monkey-wrench into the thought process.

So am I understand this correctly: anything that a legislature passes as a law can be voided by the Supreme Court as violative of the primary rights document. So the Supreme Court can rule something legal, but if a province disagrees, it can void the primary right under the constitution?

(honestly wants to know)
posted by dios at 3:02 PM on December 22, 2005

My point is that there a lot of ways to protect against tyranny of the majority and different theories on how to do it. But in the end, taking the power away from them in areas that doesn't effect individual rights seems like the most un-democratic way.

Ignoring the specifics of Canadian law, you appear to be babbling here.

If the majority is infringing on "individual rights" with no rational, reasonable, "due process" basis, this infringement needs to be removed, either by the political act of civil disobedience, or judicial review and nullification.

Yes, this would be undemocratic. This ain't a democracy, thank God.
posted by Heywood Mogroot at 3:06 PM on December 22, 2005