Federal Judge Says Dobbs Means Arkansas Can Criminalize Adultery, Fornication, and Masturbation
by Michael C. Dorf
With all of the attention understandably being paid to the indictment of Donald Trump, a major district court decision announced yesterday was likely overlooked. The ruling in ACLU of Ark. v. Griffin concerns a lawsuit against the Arkansas Attorney General. The ACLU of Arkansas sued to block enforcement of SB 4592, the state law enacted last month that forbids (and authorizes felony imprisonment for up to five years for) "deviant sexual practices that were constitutionally proscribable in 1791, 1836, and/or 1868" (the respective dates of ratification of the Bill of Rights, Arkansas statehood, and the ratification of the Fourteenth Amendment). The complaint alleged that "deviant sexual practices" is unconstitutionally vague and that, if construed to include all sexual practices deemed deviant at any or all of the dates listed in the statute, would encompass clearly protected practices such as same-sex sodomy.
In an opinion partially granting and partially denying the ACLU's motion for a preliminary injunction, U.S. District Lee Rudofsky agreed with the plaintiffs that SB 4592 could not be constitutionally applied to "practices such as sodomy that the Supreme Court has (whether rightly or wrongly) already deemed constitutionally protected," citing Lawrence v. Texas, but "remains valid with regard to those practices that were clearly constitutionally proscribable at the relevant dates." By including "clearly" in that aspect of his denial of injunctive relief, Judge Rudofsky wrote, "today's order protects against any potential for unconstitutional vagueness."
According to the district court opinion, what practices does SB 4592 validly proscribe? Judge Rudofsky's "not-necessarily-exhaustive catalogue" listed: "bigamy, incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity." Does that list sound familiar? It should. The judge expressly borrowed it from Justice Scalia's dissent in Lawrence. Justice Scalia's list also included same-sex marriage, but Judge Rudofsky explained that, "in light of the Supreme Court's not-yet-overruled holdings in [Lawrence] and Obergefell v. Hodges, 576 U.S. 644 (2015), sodomy and same-sex marriage cannot constitutionally be proscribed, even though they fall within [the statute's] proscription of deviant sexual practices that were proscribed at all relevant times."
Although the ruling would seem to imperil not only masturbators, that aspect of the law and ruling have drawn the most attention, perhaps because of public statements by Arkansas Governor Sarah Huckabee Sanders. When asked whether, and if so, how the state would enforce the prohibition, the governor (who recently signed the legislation at a ceremony at which she was flanked by anti-masturbation activists) answered a different question, namely what purpose the law serves. "Just as I'm grateful to my mother for not aborting me and therefore we ban abortion, I'm equally grateful to my daddy for not spilling his seed and preborting me."
In case you're wondering, no, "preborting" isn't a word--at least not yet or not outside Arkansas. But speaking of the former Arkansas governor who didn't spill his seed (at least when conceiving the current Arkansas governor), what are we to make of this segment of the Mike Huckabee show in which he and Rudy Giuliani praise SB 4592 without discussing adultery--a crime under the law and also something that Giuliani's ex-wife claimed he committed? In light of how much of the segment was given over to praising Donald Trump, perhaps the failure to discuss adultery had a broader political aim.
Whatever their sins of omission, however, the strangest turn in the Huckabee/Giuliani discussion of masturbation was when Huckabee said "it's sinful for a reason. Onanism results in well-known physical deformities." Even Giuliani looked puzzled by that assertion, though, oddly, on this point Huckabee appears to be correct.
So much for the politicians' defense of SB 4592. Judge Rudofsky did not say much about the policy of the law. Rather, the critical portion of his reasoning was as follows:
Dobbs v. Jackson Women's Health Org., 142 S. Ct. 2228 (2022), makes clear that substantive due process does not protect as fundamental rights those practices that were not deemed beyond the reach of the law in 1791 or 1868--unless they are protected by prior decisions that stare decisis preserves. Dobbs held that abortion is not preserved as a constitutional right but other previously recognized substantive due process rights--such as contraception, sodomy, and same-sex marriage--might be. The Dobbs Court emphasized that it decided only the strength (or rather the weakness) of stare decisis with respect to abortion. Absent express overruling by the Supreme Court, this court must follow extant precedents, even if a more recent decision undermines their rationales. [Citations omitted.]
Yet stare decisis protects at most those substantive due process rights previously recognized. No Supreme Court decisions protect bigamy, incest, prostitution, masturbation, adultery, fornication, bestiality, or obscenity (although the First Amendment limits how states may define and allow for proof of obscenity [citations omitted]). Such practices can only newly receive constitutional protection if they can be validated using the proper interpretive method of focusing on text, history, and tradition. Because they manifestly cannot, [SB 4592] is valid with respect to these practices.
I hate to say it, but that analysis is sound, at least if one takes Dobbs as a methodological starting point. In my view, however, that fact only goes to show what a terribly misguided decision Dobbs is. I'm not sure I would go quite so far as the hosts of the Strict Scrutiny Podcast, who suggested in a recent episode that any scholars who defend Judge Rudofsky's ruling should be asked, whenever they appear in public settings, "whether they are the masters of their domains," but I understand the sentiment.
Meanwhile, in the interest of full disclosure, I should add that I declined to join an amicus brief drafted by PETA, which plans to support the state of Arkansas on appeal on the ground that SB 4592 criminalizes bestiality. As I explained to a lawyer for the organization, I agree that bestiality can be forbidden as a form of cruelty to animals, who should be irrebuttably presumed not to consent to sex with humans. Thus, in my view SB 4592 is unnecessary as an animal protection measure and quite destructive otherwise. PETA will file anyway. So will the Westboro Baptists, who also support the Arkansas law. Litigation makes strange bedfellows, especially litigation about bedfellows.