No constitutional right to consensual BDSM acts?

[TheRealJoeFish]

All right, here's my take on all of this.  To get the context of the court's pronouncement on BDSM, which is only a small part of this ruling, the facts of the underlying case may be helpful.  Essentially, here's a synopsis of what happened (also interesting for people who don't want to read the (comparatively rather interesting) 45 pages) (absolute bare-bones bolded for instantaneous perusal):

John Doe (JD, Plaintiff) enrolled at George Mason University (a public university, and thus a government actor, and one of the Defendants) for his undergraduate degree.  He was on the radar of campus security and the administration almost immediately, for a number of reasons: 1) he carved "kill them all" into his hands with a knife (and was taken to psych services), 2) was found to be in possession of multiple prohibited weapons on a different instance, and 3) had an in-class disruption so bad that he was prohibited from contact with the professor.  So, not a nice dude.

His freshman year, JD began a relationship with Jane Roe (JR), a student at another school.  The relationship involved BDSM; JD was in the "dominant" position, and the agreement, fully understood by both parties, was that words such as "stop" or "don't" would not be sufficient to end sexual activities - the safe word was "red", and both JD and JR agreed that JR saying "red" would be the only way to get JD to stop.

Over an 18-month relationship, JD and JR had a number of BDSM encounters in JD's dorm room.  On one occasion, October 27, 2013, JR reportedly "pushed him away" and stated responded to "do you want to keep going" by saying "I don't know."  She did not use the agreed-upon safe word.

Fairly soon after this encounter, JD and JR ended their relationship.  JD tried repeatedly to contact JR, generally to no avail.  In April 2014, JD texted JR telling her that he would kill himself if she didn't get back together with him, prompting JR to contact the George Mason administration.  She contacted Brent Ericson, director of GMU's Student Conduct group (basically, Ericson was the head disciplinarian).  Ericson asked JR if she wanted to press administrative charges against JD, and after approximately 20 emails back-and-forth between JR and Ericson, she agreed to pursue those charges.  She also worked with GMU police to secretly record a phone conversation between her and JD; during the conversation, she asked JD "why didn't you stop when I said 'red'" and JD replied "I thought you could handle it."

In August 2014, Ericson sent JD a letter stating he was facing disciplinary charges "for an incident of possible violation of the GMU code of conduct, particularly sexual misconduct."  The grounds for the charges were: 1) Infliction of physical harm to any person, including self; 2) Deliberate touching or penetration of another person without consent; 3) Conduct of a sexual nature; and 4) Communication that may cause injury, distress, or emotional or physical comfort (arising out of the text message saying JD would kill himself if JR didn't get back together with him).

A 3-member panel of the disciplinary board conducted a 10-hour hearing, at which JD, JR and the school were allowed to put on witnesses, give testimony, and ask questions of each other.  Although JR said that there was "much distressing communication" and "a number of violent and harassing incidents," the only one she described in detail was the October 27 incident.  JD testified that under the terms of the sexual relationship, he did not stop that night because JR did not use the safe word.  He testified that on very rare occasions JR would say the safe word and he wouldn't hear it, but that she would then repeat it louder and he would stop immediately.  The 3-member panel found JD NOT GUILTY of all charges.

JR appealed the decision.  The grounds for the appeal was "a procedural irregularity"; JR maintained that the 3-member panel could not find JD not guilty, because he had admitted to non-consensual conduct.  The appeal went to Ericson, who admitted 1) he assigned the appeal to himself; 2) he engaged in completely off-record communications with a number of parties without telling JD; and 3) he had already made up his mind to find JD guilty without hearing any evidence.  JD was, indeed, found guilty by Ericson, and was expelled.

JD took the case to court, arguing that George Mason University had violated his rights by depriving him of liberty (in this case, the liberty to not have his reputation tarnished and to not be expelled from a public school) without due process.  In what constituted the bulk of the opinion at issue, the Federal Court AGREED with JD - George Mason had indeed violated his due process rights.  This is because:
1) JD was not given proper notice of the charges against him (he was led to believe that he was charged with "a violation" stemming from October 27 when his discipline was actually based on many more alleged instances of misconduct);
2) Ericson acted extremely improperly in conducting shady communications behind JD's back; and
3) Ericson had made up his mind before hearing JD's appeal, meaning that JD's procedural rights were a sham.

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SO, that is all the background to the final few pages of the Court's decision, which addressed a separate argument JD had made previously that was dismissed.  The argument was that Ericson (and thus GMU) violated JD's due rights by disregarding the BDSM context of the relationship and how it affected consent and other issues, treating BDSM as "per se sexual misconduct."  Essentially, this argument was not that JD should be let back in because they didn't give him a fair hearing, but that GMU's misconduct policy is invalid on its face because it forbids inflicting harm in such a way that could be construed to make all BDSM a violation.  This analysis would only apply if strict scrutiny was applied, and strict scrutiny would only apply if the right to engage in BDSM is a "fundamental right" under the US Constitution.

The court ruled that this argument was not correct.  The following is an outline of the court's ruling:

1) Under current law, there are exactly two ways you can show that a right is "fundamental":
    a) Show that the right is "i) deeply rooted in the nation's history and traditions and ii) implicit in the concept of ordered liberty." (Glucksburg cases)
    b) Show that the liberty interest has historically been denied for impermissible animus, and not to protect a vulnerable class of people (Lawrence cases)
2) JD has not shown that the right to BDSM is "deeply rooted in the nation's history."  Thus, Glucksburg liberty is out.
3) JD has not shown that BDSM has been discriminated against in the past for prejudicial reasons; rather, the governmental outlook on BDSM is based in part on protecting vulnerable sexual participants.  Thus, Lawrence liberty is out too.

As I said, I disagree with this ruling; I do so for a couple of reasons.  First, I think the court is drawing their categories too narrowly.  If you look at whether "BDSM" itself has been historically discriminated against in this country, well, I don't know. I'm sure it has, but I'd have to do some research, and we'd have to argue about details.  However, I think the proper category should be "non-'mainstream'-or-whatever (ie vanilla) sexual acts", which have of course been historically considered deviant, suppressed, and punished.  The proffered justification for such prohibitions has always been "to protect so-and-so," but the real reason has always been to police morality.  Viewed in this light, I think it's clear that there's no principled difference between *consenting BDSM*, *consenting homosexual intercourse*, and *consenting heterosexual missionary babymaking*.  Similarly, while BDSM may not be "deeply rooted in the nation's history and traditions" - again, I don't know about this, and would just love to do some research - I believe that "sexual freedom" or, even more fundamentally, "privacy" is such a category, and that consensual BDSM falls into that category of fundamental liberty.

So, that's my two cents.  Or, like, 47 cents.  Hehehe, get it, because it's long.