In terms of how this will be applied going forward, I doubt the direct pronouncement on the status of BDSM will have much direct applicability. Essentially, if they *had* ruled this a fundamental freedom, the government would not be allowed to interfere with it unless it 1) had a *compelling* interest and 2) the interference was the least obstructive way to accomplish the goal. As it is, if the government wants to interfere with BDSM, they need to only show 1) a *legitimate* interest and 2) the interference is merely rationally related to accomplishing the interest.
I still don't believe a government could constitutionally outlaw BDSM or the like. Since 2000 or so, the courts have explicitly said that a government's interest in preventing homosexual sex is not legitimate or rational. If, say, some county wanted to pass an ordinance banning using whips during sex, say, they still couldn't do it; the applicable line of cases is Romer, I think. I wouldn't put it past someone trying to use this to do some morality policing, but I don't think it would fly.
What it more likely means in practice, I think, is that a not-sexual prohibition need not be invalidated because it could restrict BDSM behavior. For instance, if a public school prohibits cutting other people with a knife, and you get in trouble for cutting a (willing) sexual partner with a knife, you can't defend by saying "I have a constitutional right to cut someone with a knife during sex," even if it's what you both wanted.
That's a bad example of what I'm trying to get across, which is that generally a law which has broad applicability does not need to be altered just because it would make it harder to engage in BDSM. In the case at hand, it seems like JD was essentially saying "you have to take the rules you have about consent and alter them in the BDSM context", and the court disagreed. What this means in practice, well, I don't know exactly.
I still don't believe a government could constitutionally outlaw BDSM or the like. Since 2000 or so, the courts have explicitly said that a government's interest in preventing homosexual sex is not legitimate or rational. If, say, some county wanted to pass an ordinance banning using whips during sex, say, they still couldn't do it; the applicable line of cases is Romer, I think. I wouldn't put it past someone trying to use this to do some morality policing, but I don't think it would fly.
What it more likely means in practice, I think, is that a not-sexual prohibition need not be invalidated because it could restrict BDSM behavior. For instance, if a public school prohibits cutting other people with a knife, and you get in trouble for cutting a (willing) sexual partner with a knife, you can't defend by saying "I have a constitutional right to cut someone with a knife during sex," even if it's what you both wanted.
That's a bad example of what I'm trying to get across, which is that generally a law which has broad applicability does not need to be altered just because it would make it harder to engage in BDSM. In the case at hand, it seems like JD was essentially saying "you have to take the rules you have about consent and alter them in the BDSM context", and the court disagreed. What this means in practice, well, I don't know exactly.
How will we know, when the morning comes, we are still human? - 2D
Don't worry, my friend. If this be the end, then so shall it be.
Don't worry, my friend. If this be the end, then so shall it be.
