Question for jurists

[Teevster]

Hey. I have a question to those of you who have studied law.

Is sexual liberty a right within your constitution - as in "a right to exerce sexual freedom" or is sexual freedom only a subsiary to "right to privacy" and "private life".

Is sexual freedom only protected negatively in the sense that only the penal code protects and limits it by laws related to consent?

Please let me know what the law of your country says. Please specify which country you are from and preferably a reference to the actual law (the paragraph and section etc...). If possible, could you link me to it (that is if your country has its lawbook online)

Lawyers from western countries are to be prefered.

If you value your privacy you are welcome to submit your answer over pm.

Thank you in advance for your help.

Best,
Teevs

 

[Chase]

@Teevster,

In the US, there's no mention of sexuality in the US constitution, which you can see in full here:

https://constitution.congress.gov/constitution/

The US had many laws against sodomy (oral & anal sex), often used against homosexuals, but sometimes also heterosexuals, that have gradually been decriminalized in modern times:

Sodomy laws in the United States - Wikipedia

en.wikipedia.org

Some interesting details from that Wikipedia article:

Colin Talley argues that the sodomy statutes in colonial America in the 17th century were largely unenforced. The reason he argues is that male-male eroticism did not threaten the social structure or challenge the gendered division of labor or the patriarchal ownership of wealth. There were gay men on General Washington's staff and among the leaders of the new republic, even though in Virginia there was a maximum penalty of death on Sodomy. In 1779, Thomas Jefferson tried to reduce the maximum punishment to castration. It was rejected by the Virginia legislature.​

Until the 2000s, laws governing sexuality were repealed on a state-by-state basis; the states that wanted to remove laws against sodomy chose to do so.

In 2003, the Supreme Court ruled certain sodomy laws were in violation of the US Constitution, in a case against Texas (which wanted to keep its sodomy laws in place). There's a list of court cases repealing sodomy laws and the justifications they give in that Wikipedia article. Some were repealed as recently as 2020.

Public sex and nudity remains illegal as 'lewd conduct' in most parts of the United States (usually it is a misdemeanor).

The US Supreme Court ruled denying marriage to people of the same sex was in violation of the US Constitution in 2015. Prior to this, as with sodomy, states could choose whether they wanted to allow it or not.

Sex with animals is illegal in many (but not all states). The taking of more than one spouse is illegal, punishable by up to 5 years' imprisonment (the US: a man can marry a man but he CAN'T have two wives. Figure that one out!). Underage sex has all kinds of complicated nuances:

• There's age of consent, which varies by state
• There's underage sex laws, which normally state it becomes a crime for underage people to have sex if the age difference is >2 years
• There's parental consent laws, which permit teens past a certain age who have not reached majority yet to have sex if permitted by parents
• There's marriage law -- generally if you are able to legally marry an underage person, sex is then allowed

None of this has any actual, literal basis in the Constitution, but for the very political cases (sodomy laws and same-sex marriage) the Constitution is "interpreted" to provide support to whatever the cause du jour may be, much in the way the Sibylline Books were consulted by the Roman Senate to resolve contentious issues and would be interpreted to support whatever the Senate ultimately decided to support.

So the general answer would be "The US Constitution makes no mention of sexuality... however, it has been interpreted in modern times to give tacit support to various aspects of sexuality."

Chase