Sex

Bans on Bondage and Spanking During Sex Could Be OK, Says Federal Court

Think states can't criminalize consensual BDSM activity? Think again.

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MiNiNa_SaN/Flickr

Uh-oh, kinksters: sex cops could be coming for you next. According to a new federal court decision, Americans have no constitutional right to engage in consensual BDSM because "sexual activity that involves binding and gagging or the use of physical force such as spanking or choking poses certain inherent risks to personal safety." Thus officials could constitutionally ban or regulate such activity in the interest of "the protection of vulnerable persons," the court held. 

In striking down bans on things like sodomy and adultery, U.S. courts have repeatedly said that citizens have a right to engage in whatever sort of consensual sexual activity they choose within the privacy of their own rooms (that is, as long as money isn't involved). But federal judges now say that the Constitution "does not prohibit the regulation of BDSM conduct." 

The decision, from the U.S. District Court for the Eastern District of Virginia, is rooted in an alleged case of campus sexual assault at George Mason University (GMU). Robby Soave covered the case here last week, highlighting how a male student ("John Doe") accused of sexual misconduct was expelled from GMU with little concern for due process. According to his accuser ("Jane Roe"), a female non-student with whom he had been in a relationship, Doe deliberately kept going with a sexual encounter after she tried to stop him. Doe said he didn't know she was serious, since she hadn't use the "safe word" they had chosen to stand in for "stop" when they were engaging in BDSM activity.

As the court explains, BDSM "is an acronym for the practices it entails, namely bondage, discipline, dominance, submission, sadism, and masochism. Thus, a BDSM relationship might involve … such actions as biting, choking, spanking, or the use of restraints." In the relationship in question, Roe was the submissive party.

After he was expelled, Doe filed suit against GMU. In February, the district court granted summary judgment to Doe, agreeing that his constitutional rights had been violated. But while the court's decision may be a win for campus due process, it also delves beyond the particulars of this case in a way that should scare advocates of sexual autonomy. 

In his lawsuit against the school, Doe had suggested that GMU administrators "disregarded" the context of his relationship with Roe and instead acted like BDSM sex was "per se sexual misconduct." This, argues Doe, stands in violation of Lawrence v. Texas, in which the Supreme Court held that states couldn't criminalize consensual intimate activity between adults. The court, however, granted GMU's motion to dismiss this claim.

"Engaging in BDSM sexual activity is clearly not protected" under the U.S. Constitution, the court wrote. While Doe essentially asserts "a freedom from state regulation of consensual BDSM sexual activity," the court said nope: "there is no basis to conclude that tying up a willing submissive sex partner and subjecting him or her to whipping, choking, or other forms of domination is deeply rooted in the nation's history and traditions or implicit in the concept of ordered liberty."

Because BDSM activity "poses certain inherent risks to personal safety," the court concluded, state governments could claim a legitimate interest in regulating it for "the protection of vulnerble persons" who have chosen to enter BDSM relationships.

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  1. Crusty hardest, um, hit…

    1. Jesus Christ on a pogo stick. Today will go down for the best photo illustrations in Hit and Run history!

      1. Holla we want alt-text, WE WANT ALT-TEXT

      2. Why, was there an article earlier with a good one?

      3. ENB, you are recycling your bondage pics. We’ve seen this one already.

    2. “activity that involves binding… poses certain inherent risks to personal safety.”

      When boots are illegal, only criminals will have skis.

      1. If it is legally binding, it is binding, which is bondage, which is BDSM….

        The LAW Itself is BDSM, and should be OUTLAWED!!!!

    3. Well spank my ass and call me Charlie!

      1. What is your secret code word to tell me to stop?

        What if I spank you so hard, you forget the code word? Can I then keep right on spanking?

  2. “sexual activity that involves binding and gagging or the use of physical force such as spanking or choking poses certain inherent risks to personal safety.”

    So does hang-gliding. So does swimming. So does driving a car.

    1. So does everything.

    2. Your point may be lost on them.

      1. Or worse: used against us.

      2. You’re right, we should ban hang-gliding.

        1. Clearly – the activity has the word hang its very description.

            1. Perhaps and perhaps not. What if we turn it into a game: How’s that banannahangin’?

              1. Do kids still play hangman?

                1. That would require spelling, so no.

    3. So does all sexual activity that involves actual physical contact.

      1. Space suits are the Platonic ideal of the condom.

    4. Hang-gliding?

      God damn you kids, I have to look at urban dictionary every fucking day.

      1. Is that related to tea-bagging?

    5. You need a license to do some of those things, after you demonstrate proficiency. You may need to go to the courthouse and display your BDSM technique to the licensing clerk.

  3. Keep out of our bedrooms, Rethuglicans! Get into our bedrooms, Democrats!

    /The progtards

  4. I say the law should go the other way. Ban the ending of BSDM encounters prematurely when the established safe word has not been invoked. BSDM is a contract that the state should enforce to the spirit.

    What’s the safe word here at Hit & Run? It should be a pop-up on a certain commenter’s browser whenever he logs in ready to post one of his stories.

    1. The safe word here is ‘FUCK OFF SLAVER!’

      1. In the case of BDSM, that’s “Slave off, fucker!”

    2. You’re just angling for a spot as Secretary of Chains, Bondage, and Horse Tails.

      1. +1 Pear of Anguish

        1. Plus The Judas Cradle

      2. Good old reliable missionary position for me, you sickos. The only sexual aid I require is a healthy libido and midget with a Polaroid.

    3. who the hell doesnt just use yellow and red, yellow for “its almost too much” and red for “stop” jesustittyfuckingchrist fuckin vanilla noobs

  5. “there is no basis to conclude that tying up a willing submissive sex partner and subjecting him or her to whipping, choking, or other forms of domination is deeply rooted in the nation’s history and traditions or implicit in the concept of ordered liberty.”

    I’d be delighted to see their opinion that gay sex is “deeply rooted in the nation’s history and traditions or implicit in the concept of ordered liberty.”

    I’d also be curious to see their argument that anything consented to by willing adults is contrary to the the concept of “ordered liberty”. The tail-chasing and question-begging around why, for example, boxing is OK (“entering a pugilistic contest with a willing partner and subjecting him or her to repeated blows to the head”), but BDSM is not.

    1. I’d be delighted to see their opinion that gay sex is “deeply rooted in the nation’s history and traditions or implicit in the concept of ordered liberty.”

      Baron von Steuben?

    2. There’s something about the term “ordered liberty” that doesn’t sit quite right with me.

      1. I think it contrasts with anarchy.

        Ordered liberty is what we are supposed to have: liberty, constrained only by laws intended to protect the exercise of liberty by one from infringing on the rights of others.

        1. A quick google search indicates that the legal concept of ordered liberty is associated with the 14th Amendment. Although it is considered somewhat arbitrary in its application.

          1. I know that American conservatives like Russell Kirk liked to argue for “ordered liberty” as opposed to that nasty hedonistic and libertine “anything goes” libertarianism.

            1. My apologies to Suthenboy down thread I didn’t see that he already quoted Russell Kirk.

      2. That is exactly what I was going to post. You want to talk about a weasel – word that opens a loophole big enough to drive a Mack truck through …..

    3. This judge (T.S. Ellis III) was appointed by Reagen in the 80s. It might not be fair to make assumptions based on that, but I’m gonna anyway.

      I don’t think he was a fan of Lawrence v. Texas either.

    4. They didn’t say that. They said the activity could be protected if it were either deeply rooted etc. or (non-exclusive) affecting some historically discriminated-against group like homosexuals. BDSM practitioners, unlike homos, were said to not be historically targets of animus.

      1. It’s sort of crazy that it can be discriminated against as long as it wasn’t discriminated against in history. So as soon as it’s outlawed it becomes a right. I guess that’s a nifty concept.

  6. “there is no basis to conclude that tying up a willing submissive sex partner and subjecting him or her to whipping, choking, or other forms of domination is deeply rooted in the nation’s history and traditions or implicit in the concept of ordered liberty.”

    So slavery never happened. Gotcha.

      1. Hey you can’t prove they weren’t willing.

        1. MetalBard: How long has it been since you stopped beating your wife?
          I know, I know, she asked for it. But that’s not good enough anymore!

  7. “there is no basis to conclude that tying up a willing submissive sex partner and subjecting him or her to whipping, choking, or other forms of domination is deeply rooted in the nation’s history and traditions or implicit in the concept of ordered liberty.”

    You know, save for that “leave me the fuck alone unless I’m engaging in violence, fraud or coercion” concept of ordered liberty.

  8. They live inside of my head

    https://youtu.be/MjMCaw4qzjg

    1. That’s not a video of brain eating amoebas!

      1. You sure?

  9. there is no basis to conclude that tying up a willing submissive sex partner and subjecting him or her to whipping, choking, or other forms of domination is deeply rooted in the nation’s history and traditions or implicit in the concept of ordered liberty

    Soooo….liberty, but just not that much? Talk about some chicken-shit hedging.

    C’mon judge. Just flat out say that “BDSM isn’t something that the government should allow people to do”. Just be the authoritarian you want to be, and say it.

  10. OK. When are they going to ban skiing?

  11. Isn’t this entire opinion beside the point?

    The court seems to be saying that a state (and, I guess, GMU) could, if it wanted to, outlaw BDSM.

    But nobody has. Virginia has no such laws, and I don’t believe GMU had a policy on the books at the time outlawing BDSM for its students.

    So, who cares? What difference does it make in this case whether a state or university could ban BDSM? Nobody ever did.

    1. I think the danger here is that you set some sort of precedent where X party says I had X type of sex with X other person and now I want to prosecute X person. This is a very dangerous thing. It’s another tool in the SJW toolbelt of insanity. WTF, now you don’t even have to say the person raped you, just that you had consensual sex with them but that the sex was too rough and you now feel wronged. Slippery slope.

      1. Elena Kagan said in her testimony before Congress that the government could order you to purchase broccoli as a part of regulating interstate commerce.

        Yet she was confirmed to the Supreme Court. This mentality is what is dangerous. No precedent like this should ever be allowed to gain a fingernail hold. The state belongs in its cage, only allowed to travel exactly as far as the limits of the perimeter we have set.

        Just as Elena Kagan’s answer on the limits of state power were so egregious that not only should she not have been seated to the court, every single member of the Senate who voted for her confirmation should be thrown from office and publicly flogged– so too should this judge be stripped of his robes and forced to frogmarch through the square shouting “I am an anti-American Idiot” at the top of his lungs every night for a month.

    2. All a state would really have to do is broadly interpret existing domestic violence protections.

      1. That would work when the male is the dom, but what about when the female is the dom?

        Well, theoretically, like they’d charge a woman for domestic violence . . . .

    3. Massachusetts bans BDSM as a side-effect of its assault statute. You can’t consent to an assault in Massachusetts.

      1. Ah yes, the “Paddleborough” case.

      2. One thing I have always wondered about with that, In Mass you cannot consent to assault but Mass has historically been a hotbed of Golden Gloves boxing so we’re not even talking about professional paid athletes. How precisely do boxing clubs get (and all other martial arts studios for that matter) get around the fact that in every bout or match both participants are essentially committing crimes as neither can legally consent to being assaulted by the other.

    4. Except that the school in question *did* effectively “outlaw” BDSM. That they didn’t *actually* have a policy on the books didn’t stop the Dean (or whoever it was) from acting as though they did anyway.

  12. Uh, doesn’t being naked in the dark with another human being pose inherent risks to personal safety?

    1. It’s getting to be that having sex with anyone is a great risk to your personal well being.

    2. Actually, just being alive does.

      1. Life has a 100% mortality rate!

        Well, a couple of cases studies from the Middle East aside…

  13. The judge is also the one who dismissed the Khalid El-Masri lawsuit against the CIA for his unlawful rendition and torture.

  14. When I stand on a full-length mirror and eat a olive loaf and cream cheese bagel while my partner casually flogs me with a cat o’ nine tails as we watch The View, that is my business and my business only.

    Fuck you, U.S. District Court for the Eastern District of Virginia.

    1. And watching The View is the masochistic part, I would suppose?

      1. Watching The View? I’ve heard of some pretty weird fetishes but that is just sick and twisted.

    2. Well said, Krusty!

      Although it does make me think. If the state can regulate commerce in wheat by prohibiting me from drawing it for my own consumption, and if Kagan theory is correct that the government can force me to purchase broccoli under the same legal doctrine….

      Does this mean the state can regulate the bedroom by requiring my partner to have bdsm sex with me? I’m just asking, you know?

    3. I did not need to know that.

    4. eat a olive loaf and cream cheese bagel

      You sick fuck!

  15. “Engaging in BDSM sexual activity is clearly not protected” under the U.S. Constitution, the court wrote.

    Unless you can show me the exact passage wherein the government is granted the authority to regulate it, it is clearly protected by the general principle that the Constitution itself is an instrument whereby certain powers are granted to the government by the people and not the other way around. The whole revolutionary idea of American government is that the people are sovereign and that the rights of government come from the consent of the governed. If it doesn’t say anything in the Constitution, it means that right was not given to government. If you think the government can ban something because it doesn’t say in the Constitution that they can’t, you need to be beat with a stick and sent back to Commieland where you came from until you read a damn book about what America stands for, ya dirty commie bastard.

    1. Under federal law, absolutely. But states have broad general police powers. It is less clear that a state doesn’t have the power to ban it. Though given the Lawrence v. Texas reasoning, I don’t see how that could hold up either.

      I think this judge is just an asshole.

    2. So quaint. This notion that the 9th and 10th amendments actually are part of the Constitution.

      1. The 10th does leave a lot of room for states to legislate as they will. The 10th is great, but the “states or the people” part doesn’t give much help deciding which powers states have and which are reserved to the people. Until the 14th amendment, the states could pretty much do what they wanted, outside of the few requirements mentioned in the constitution.

    3. You are correct.

      “But federal judges now say that the Constitution “does not prohibit the regulation of BDSM conduct.”

      It most certainly does prohibit that. It enumerates powers. Unless, as Jerryskids points out, you can find where that power is enumerated it is prohibited.

      Also, fuck Elena Kagan with a ten foot stalk of broccoli.

      1. Also, fuck Elena Kagan with a ten foot stalk of broccoli.

        It’s not my kink, but I don’t judge.

      2. Wow, she has a stalker.

        1. In Russia broccoli stalks you.

        2. *rises to begin thunderous applause*

    4. So, I have the right to fart in a crowded elevator. Yay!

      1. “So, I have the right to fart in a crowded elevator. Yay!”

        Not if you’ve eaten broccoli.

  16. I don’t see at all how this isn’t contrary to the reasoning in overturning sodomy laws. If the constitution protects private, non-procreative sexual activity between consenting adults, then that’s it. Ass sex has physical risks that go with it. Rectal prolapse is a thing. Plain old PIV has plenty of physical risks too. Apparently a broken penis is something that can happen. Oral sex is probably a choking hazard.

    1. Not to mention STDs and maternal mortality and morbidity.

      1. I was not trying to produce an exhaustive list

    2. Oral sex is probably a choking hazard.

      *clears throat*

      For some of us it is.

      *clears throat again*

      1. I didn’t get that, come again?

    3. Basically 3 reasons. 1 is a line of reasoning that’s hilarious when you consider how tenuous the cx are between each step, going back to the ruling protecting sale, purchase, & use of birth control. Basically, it’s that procreation is a right fundamental to the Constitution. That is, if it weren’t for procreation, there’d be no people, hence no Constitution. So people have to be allowed to have kids. Therefore they’re construed as having the right to control having kids. Therefore they have to be allowed to take steps to have kids (by fucking) or not have them (birth control). Since other kinds of sticking of body parts into body parts is considered sexual, even if not procreative, that too has to be a right. Whew!

      Another is that homosexuals have historically been victims of societal animus, a victim class. Therefore to have their liberty be considered equally protected, the court has to lean on the scale the other way if it looks like they’ve been specifically legislated against. The 3rd bit is closely related, which is that if you try to enforce a law against it, homosexuals would be “outed” & subject to animus as individuals.

      The courts go far out of their way to avoid declaring a right of general liberty, so they have to give all sorts of bizarre reasons to allow some liberties & not others, according to what they go for, or what they thing society goes for.

  17. “there is no basis to conclude that tying up a willing submissive sex partner and subjecting him or her to whipping, choking, or other forms of domination is deeply rooted in the nation’s history and traditions or implicit in the concept of ordered liberty.”

    Is the standard that the activity, in order to be constitutional, has to “deeply rooted in the nation’s history?”

    And what the fuck is “ordered liberty?”

    Seriously, WTFFFFF?

      1. essentially that liberty is not allowed to run completely amok, and that there must be some limits.

        That was as far as I got.

        1. You should have read all the way down to the end of the article; it was a treat.

          No, and that’s all you need to know about “ordered liberty:” the conservative is using it as a term to ingratiate himself with libertarians, but in reality, what he’s really saying is “Liberty for things I like, but none for those I don’t.”

          That’s not how libertarians think. We have liberty for all, even for those things we may find disagreeable.** That’s true liberty, not the sham that is “ordered liberty.”

      2. And what separates Objectivists and Anarchists from libertarians?

        I assume the libertarian is shacking up with a True Scotsman somewhere.

        1. As far as I can tell, the Ayn Rand Institute loves themselves some “ordered liberty”. What separates libertarians from anarchists is the failure of the Dallas Accord.

          1. I’m not sure this idealized “Disordered Liberty” really exists.

            The article you point to seems to want to pat themselves on the back for their open-minds re: Drugs, Gays, etc…. but they don’t seem to test their own assertion at all.

            Where do they draw the line? Nowhere? they carve out exceptions at the end with things about “mental illness” etc. So is the idea simply to expand that definition to make sure they can still arrest people who whip out their johnson and start masturbating in public?

        2. [Scotsman/sheep joke deleted]

      3. “But what exactly is ordered liberty? I’ve never really figured out just what, if anything, people using the term are really trying to say.

        …essentially that liberty is not allowed to run completely amok, and that there must be some limits.

        From chapter 5 of Russell Kirk’s The American Cause, aptly titled “Ordered Liberty”:

        “Order” is the principle and the process by which the peace and harmony of society are maintained. It is the arrangement of rights and duties in a state to ensure that a people will have just leaders, loyal citizens, and public tranquility. It implies the obedience of a nation to the laws of God, and the obedience of individuals to just authority. Without order, justice rarely can be enforced, and freedom cannot be maintained.”

        Obedience of individuals to just authority.

        I see. Mr. Kirk is going to decide how to arrange our duties and rights, thus what the limits on our liberties are and we must be loyal, obedient citizens.

        Or, I could just shoot him in the face.

        1. I just gave it a quick once over and I can’t find where shooting Mr. Kirk in the face is prohibited by the constitution.

      4. t sounds like a term people made up to win arguments and feel smug, like “public accommodation.”

    1. I don’t know when the phrase was *first* used, but the Supremes used in in 1937 to justify making the states obey a few parts of the Bill of Rights but not the rest – because some parts of the B or R (eg, free speech) are essential to ordered liberty and others (eg, double jeopardy) aren’t.

      And ordered liberty can provide grounds for protecting rights which *aren’t* in the Bill of Rights.

      (Since then, the Court has found more and more of the B of R applicable to the states, but there’s a couple parts which they still haven’t applied to the states.)

    2. If you read Scalia’s dissent in Lawrence v Texas, he alludes to the fact that if SCOTUS had to use strict scrutiny on every thing involving consenting adults in private, then they would have to throw out all kinds of laws. And of course, he meant this to say that we couldn’t do that. Therefore, SCOTUS shouldn’t strike down state laws unless they relate to a “fundamental liberty, deeply rooted in the nation’s history.” Although, in all fairness, he wasn’t the one that created that precedent. I liked Scalia, but man on sex and drugs his Catholic guilt must have screwed with his logic.

      I respect Thomas’ dissent, though i lean towards disagreeing. He at least was saying that the federal government wasn’t granted the authority under the Constitution to strike down these types of laws, even if he personally would vote against it if he were in the Texas legislature.

      1. Scalia almost got it. Yes the same argument absolutely invalidates many drug laws. And it should. It was an absolutely terrible reason to dissent.

        That’s why I didn’t like Scalia. He talked a good game, but when it came down to it, he’d weasel out of the logical consequences of his supposed principles as well as anyone else.

        1. Scalia’s greatest hypocrisy* was on matters surrounding drugs. A man who generally showed (deserved) contempt for a broad reading of the interstate commerce clause giddily supported it when drugs were involved.

          * = As opposed to his greatest idiocy, which was on matters surrounding the cops.

      2. A plain reading of the 10A would lead one to rather obviously conclude that if the Feds can’t ban sodomy, then the States can. Once the highest Texas court had ruled the law constitutional, the only recourse left was the Texas legislature.

        Of course, Lawrence fits with the Court’s standing “jurisprudence” established by Roe and Grisworld, whereby unenumerated rights can be affirmatively asserted against the States, despite that basically being completely against the wording of the Constitution and its amendments.

  18. “Federal judges now say that the Constitution “does not prohibit the regulation of BDSM conduct.”

    The Constitution should be reverenced to the extent that it closely approximates our real rights in the real world. When the Constitution fails to do that, it’s just like any other bad law.

    I don’t reverence freedom of speech because it’s in the Constitution; I reverence the Constitution because it reverences freedom of speech. If the Constitution doesn’t spell out the freedom to get your ass spanked, if you want to, then screw the Constitution on that point.

    You could argue it on freedom of expression grounds, freedom of association, privacy rights, whatever. Our rights are the right to make choices for ourselves–if and when the Constitution gets that wrong, it’s wrong.

    1. “If the Constitution doesn’t spell out the freedom to get your ass spanked, if you want to, then screw the Constitution on that point.”

      I think that’s a direct quote from Patrick Henry’s speech against ratifying the Constitution.

      1. It was certainly used to clarify opposition to the Bill of Rights and the corrosive effect on liberty that actually writing down a partial list of rights would have.

      2. I would have agreed with the judge when I was in junior high school.

    2. Ken, I don’t think the Constitution gets this wrong. I think the judge did.

      1. Yes, and wildly so.

      2. Even if the judge were right about the Constitution, the Constitution would be wrong.

    3. That is a good point that should be made. A lot of people seem to revere the Constitution too much. The Constitution gets a lot right. But it doesn’t deliver everything that libertarians want and it’s silly to pretend it does.

      In this case, however, I think that the judge is getting it wrong.

      1. I think the Constitution is the closest thing to a libertarian document in… Probably history and it happens to be the law of the country even if not followed as much as we would like. While it’s maybe not perfect I think any tact that involves “screw the Constitution” is probably a lot more likely to get bedfellows with statists than with anarchists.

        1. I didn’t say, “screw the Constitution”.

          I said, “I don’t reverence freedom of speech because it’s in the Constitution; I reverence the Constitution because it reverences freedom of speech”.

          No one said, “screw the Constitution”.

  19. Don’t forget to bring the government referees…for a nominal fee, of course.

  20. I certainly agree with most here that consenting adults ought to be able to do whatever the fuck they want to, especially in private. And don’t get me started on what the Nazgul define as “fundamental liberty” vs. other kinds.

    The interesting challenge to me is the difference between saying
    The US Constitution protects the individual from a state (or local) government from regulating this behavior,
    versus
    The US Constitution protecting the individual from the federal government regulating this behavior.

    Certainly my gut feelings are that SCOTUS should strike down any of these kinds of rules. However, there is an argument to be made that the federal government doesn’t have the authority to strike down state (or local) laws that don’t present an issue discussed in the US Constitution. I am not saying I necessarily agree with that position, but I think it is a valid, and principled position.

  21. is deeply rooted in the nation’s history and traditions or implicit in the concept of ordered liberty.”

    1. Is this judge really saying that we only have the freedom to do those things that have been done before? That, literally, if it wasn’t around when the Founders wrote the Constitution then we have no right to do it? Well, there goes the 2nd Amendment and the 1st has been gutted completely.

    2. WTF does ‘ordered liberty’ have to do with anything? This judge is just making shit up at this point – must beone of those guys who didn’t like being tied up.

    1. In Supreme Court history, it’s a way to water down the Bill of Rights – see above.

    2. This sort of case also demonstrates the shit that happens when a government decides its purpose is no longer protecting your rights but protecting *you*.

      Now he’s saying you don’t have a right to take a course of actions that may expose you to danger.

      1. A farmer doesn’t let his cattle graze amongst wolves, does he?

        1. Who’s the wolf in this scenario?

          1. More importantly, who is the cattle?

    3. He was ok with being tied up, he just didn’t like the crazy bitch peeing on him afterward.

  22. sex cops could be coming for you next […] because “sexual activity that involves binding and gagging or the use of physical force such as spanking or choking poses certain inherent risks to personal safety.”

    This calls for a committee. A committee to protect personal safety. A committee for the benefit of the public. A sort of Committee of Public Safety, if you will.

    1. This is the United States – we don’t do committees.

      We have the ‘Department of Public Safety’. Coincidentally, they already exist and are onboard with ‘ordered liberty’ so it won’t take much to slightly tweak their mandates.

  23. This is going to be really great when sports and romance/sex are properly regulated/gone. Has the government “regulated” against lovesickness yet? Of course sex outside of marriage is exploitative, abusive, and degrading (if the legislating majority feels like it) so that’s shaky, too.

  24. I accept the Libertarian position that banning this is wrong. However I think this development is a good thing – this kind of regulation is the last bastion of support for the somewhat fake distinction between real and artificial transgression/discipline. Once overturned, the joke will be obvious.

  25. But federal judges now say that the Constitution “does not prohibit the regulation of BDSM conduct stuff out-of-touch old people find weird.”

    FTFY

    1. Exactly. Missionary position in a darkened room only and vaginal, strictly vaginal.

      1. Once a month, whether you are in the mood or not.

        1. Straight outta my prenup, Bear.

  26. If the people having BDSM are consenting adults, it’s no one else’s business much less the government’s. What a worthless decision by yet another worthless judge. What are this guy’s options going forward?

    1. You have to distinguish positive law and natural law. As a matter of positive law, that opinion may not be that worthless.

  27. BDSM is for ugly people.

  28. “Engaging in BDSM sexual activity is clearly not protected” under the U.S. Constitution, the court wrote.

    I suspect this will never hold up. Because if you can ban BDSM, then you can ban sodomy, then you can ban…

    1. Then you can ban…scrotal inflation and sounding! Dear God, no!!

      Seriously, though, this was a shit decision.

  29. “Engaging in BDSM sexual activity is clearly not protected”

    It is, however, queerly protected.

  30. So, in about 5-10 yrs. we can expect the Bureau of BDSM to be staffed entirely by doms with a laundry list of explicit punishments for anyone found to be participating in submissive sex practices?

    1. [prepares resume and cover letter]

    2. Go on…

  31. so when do we put the nullos into camps? Cause they sure as shit are living on the edge.

    1. NSF (Work, lunch, your brain, etc.)

    2. Good Lord.

      I mean — *At last* the solution to sitting on my own balls!

    3. I support your freedom to do as you wish with your body. But if you do this, or even want to do this, you are by any reasonable definition, insane.

  32. Beats by Dre soon to be illegal?

  33. No ban penetrates the erotic fortress.

  34. Hmm, so spanking is too risky for consenting adults. . .

    Thank God spanking children and teens is still A-OK!

    (See related: fiftyshadesofchildabuse.org)

    1. Fuck off statist.

      1. Just because you get your jollies spanking people doesn’t mean the rest of us do.

        1. Statist? How do you figure?

          Anyway, just because you’re satisfied with the degree of protection from adults seeking their jollies that minors are currently afforded doesn’t mean the rest of us are.

  35. Think states can’t criminalize consensual BDSM activity?

    It was inevitable with the Yes Means Yes crowd.

  36. Thinkin’ kinky….think again.

  37. so i wonder when the enlightened progressives will use fetlife profiles to round people up based on their sexual preferences for the reeducation camps
    The entire ideology hurts my brain to try and follow along with there is literally not a shred of congruence to any of it…. its like someone just used madlibs to fill out a political platform and got every moron to go along with it

  38. It is amazing how malleable and how restricted the mythical right to privacy is. I wonder if gays can practice B&D in their own bedrooms.

  39. So, if you willingly let your partner waterboard you, that could be a crime, but if the government waterboards you against your will, that’s just dandy.

    Liberty must not mean what I think it does.

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