This is somewhat along the same lines as my other question. I would like to learn more about the constitutional boundaries on the US Congress to regulate sexual mores and/or sexual customs.

I assume the government's power to regulate forms of worship is so limited that it would not allow it to regulate propositioning for sex in places of worship.

The federal government clearly can outlaw certain forms of propositioning for sex (as it has done with sexual harassment laws) in places of business.

The government can outlaw sex in public as a public nuisance. In fact, merely exposing oneself in public can lead to a requirement to register, as a sex offender, for many years after serving a prison sentence. So this form of lewd propositioning is clearly illegal.

The government can treat certain utterances as intimidation even if they don't contain a direct threat (e.g., protests at abortion clinics). So the government can at least attempt to extend this theory to propositioning people on the street directly.

Can it be extended to private residences for reasons (for example) of public safety? Or are there no constitutionally-accepted reasons why the government can extend it to private residences?

Again, I am not looking for answer telling me that the government would not do that. That's not the question. The question is what are the constitutional boundaries on the government powers in this space.

  • 4
    Lawrence v. Texas was cited in the answer to your previous question, and has a lot to say about the limits of regulation on sexual activity between consenting adults in private. Have you read the decision? Mar 25 at 23:00
  • @NateEldredge I have not. Does it address propositioning for sex as well as the acts of engaging in sexual activities?
    – grovkin
    Mar 25 at 23:16
  • 2
    Not specifically, since that didn't come up in the case, but it lays out broader principles that likely would be applied in analyzing the constitutionality of your hypothetical law. For instance, it quotes Stevens' dissent in Bowers v. Hardwick: "[i]ndividual 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" and says this analysis "should control here". Mar 25 at 23:23
  • @NateEldredge I see your point. And I agree that it could play a part in the analysis. Is that all of it though? It would seem that for such a tenuous basis to be "controlling", it would have to be applied by a court sympathetic to the side of liberty even in the face of a public sentiment that produced a Congress that wrote such a draconian law.
    – grovkin
    Mar 25 at 23:35
  • This question would have a better focus if it were about state government laws, which is the typical venue. As stated, we first have to start with the general applicability of federal law here without considering first amendment considerations. But as to regulation of sexual behavior in churches, the Establishment clause could easily be taken back to its sole meaning of “Congress shall make no law respecting an establishment of religion.” Churches do not necessarily have the right to do whatever they want. I suppose one could set up some Ashtoreth poles and put it to the test.
    – Tiger Guy
    Mar 26 at 7:57

The federal government almost certainly can't outlaw all sex propositions in all places. But, I think there's ways the federal government could outlaw certain types of sexual propositions in certain places. It would be very tricky to do. Congress would have to be very careful to structure how it does this in such a way as to avoid a minefield of potential constitutional issues raised by the limits of the taxing and spending powers, other limits on federal jurisdiction, the First amendment, Lawrence v. Texas, the due process clause of the Fifth amendment (prohibiting vagueness), and rational basis review.

  • "without good reason" is a speculation. Both you and phoog seem to think that I am asking if the government could do it arbitrarily. But the question is whether the government can find reasons to do it which would withstand constitutional scrutiny. Here's a public safety "hypo": the feds outlaw prostitution and, in order to avoid equal protection violation, the law makes it illegal for men to make the kinds of utterances that a female prostitute would make while trying to attract male clients. if the feds can't outlaw prostitution themselves, they tie some state funds to this.
    – grovkin
    Mar 26 at 0:47
  • @grovkin ok, I follow. But, why isn't just outlawing prostitution an option? Also, are you sure this isn't illegal now? I think advertising prostitution services might be illegal now (obviously Nevada excluded), but I'm not sure about that.
    – user36183
    Mar 26 at 0:50
  • i was saying in case it happens not be an option for the feds, it clearly is an option for the states. so the feds can tie funds to states "strengthening" anti-prostitution laws. if the feds can't do it themselves, they can force states to do it. the question becomes what constitutional basis can be used to throw the whole framework out.
    – grovkin
    Mar 26 at 0:54
  • @grovkin ok so sort of like how right on red became law? Just so I understand.
    – user36183
    Mar 26 at 0:55
  • i am not familiar with that, but I was thinking of how the drinking age for driving was raised to 21.
    – grovkin
    Mar 26 at 0:56

Can the Federal Government outlaw propositioning for sex in all places other than places of worship?

Of course not. One place it can't reach with such a prohibition is the home, as explained in the answer to your other question.

Can it be extended to private residences for reasons (for example) of public safety?

No. Such a ban would fail in court because there is no plausible public safety benefit to outlawing sexual propositions in the home. Furthermore:

The federal government clearly can outlaw certain forms of propositioning for sex (as it has done with sexual harassment laws) in places of business.

The federal government has not outlawed propositioning for sex in places of business. It has outlawed sexual harassment in the workplace. Not all sexual propositions constitute harassment, and the fact that harassment may take the form of an unwanted sexual proposition does not imply that the government's power to outlaw harassment extends to outlawing sexual propositions generally.

  • I am sorry, but this is an opinion-only answer. It provides no legal basis for why the current constitutional framework supports the conclusions on which you so adamantly insist. In fact, the statement "there is no plausible public safety benefit to outlawing sexual propositions in the home" is purely a speculation. I explicitly asked (twice!) to not address the issue of what the government would do rather than what it is prohibited from doing.
    – grovkin
    Mar 25 at 23:25
  • 1
    @grovkin I didn't say anything about what the government would do. The point of the statement about plausible public safety benefit is that if the government purported to ban sexual propositions in the home, the ban would fail to withstand a court challenge because the doctrine of strict scrutiny would require the government to claim a "compelling state interest," which this answer asserts is impossible. I've edited to make that clearer.
    – phoog
    Mar 25 at 23:38
  • I am sorry, I can't use the comments to address both the content of the answer and your comment when the two do not match. If you want to assert something in the answer, please, do it directly rather than through an implication. Otherwise, trying to formulate a response will quickly devolve into confusion.
    – grovkin
    Mar 25 at 23:51
  • 1
    Your answer would be improved by incorporating the info in your comment
    – Dale M
    Mar 25 at 23:56
  • One could point out that such illicit propositioning that falls under federal law would only apply to incidents that either crossed state lines or took place in federal offices or offices of federal contractors (Interstate Commerce, Rights of Federal Government in their capacity as an employer). If it's Intra-state and/OR Dual Sovereign Jurisdiction, then State not Federal Law would apply, while Federal Policy would typically not prosecute if the state was doing the same thing. Feds could enforce if state doesn't but they are likely to have bigger fish to fry.
    – hszmv
    Mar 25 at 23:56

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