Flowers, Christine. "Bad Kama: Obscenity Not Protected by Constitution.(Kama Sutra- sex club)." The Legal Intelligencer (Jan 25, 2006): NA. InfoTrac OneFile.

COPYRIGHT 2006 American Lawyer Media L.P.

Byline: Christine Flowers, Special to the Legal

By Christine Flowers

Special to the Legal

Late last year, the Department of Licenses & Inspections shut a Philadelphia sex club called Kama Sutra down for zoning violations. The club was zoned for restaurant use, but was actually a meeting place for "swingers," a quaint term for those couples who decide to share their affections with others in semi-public venues. It is assumed that the loyal clientele was forced to follow their collective bliss in other places, like parks and the backseats of automobiles, and for the radical ones, their bedrooms.

Repeated complaints from neighbors about alleged sex parties didn't move city officials to take action. It was only when a local television crew prepared an undercover report about the shady activities taking place at the South Street club that L&I raided the establishment and forced it to suspend operations.

The owner of Kama Sutra, understandably irate at the crumbling of his erotic empire, supposedly e-mailed his customers to inform them that laws had been broken and heads should roll. But he wasn't talking about the actions that took place within his sacred inner sanctum. He was referring to the alleged privacy violations that occurred when the television crew surreptitiously filmed his customers engaging in enumerated membership activities.

Unfortunately, the disgruntled entrepreneur has missed the point. This is not a privacy issue. It is a question of community standards and the preservation of public order. In Barnes v. Glen Theater Inc., the U.S. Supreme Court held that an Indiana law that forced nude dancers at the "Kitty Kat Lounge" to wear pasties and G-strings to cover their private areas was constitutional.

While opponents of the law argued that it represented an infringement of their First Amendment right to free-expression of a so-called "erotic message," the court held that "the governmental interest served [by the law] is societal disapproval of nudity in public places among strangers." This predated Janet Jackson's unveiling at the Super Bowl two years ago. However, if the government can place reasonable restrictions on nude dancing, it can certainly make the judgment call that orgies are inappropriate in a building zoned for restaurant use (even if food products are involved).

There will always be those hardy throwbacks from the 1960s "feel-good" demographic who will protest that people who want to engage in consensual sex acts shouldn't be chained (pun intended) by restrictive laws. The obvious strategy is to shift the focus from the obscene acts to their so-called "privacy rights," those same penumbral rights that were used to support a woman's entitlement to an abortion. People can certainly disagree about whether a woman has the right to terminate a pregnancy, but there is no doubt that the government has a distinct and compelling interest in preventing people, even consenting adults, from engaging in activity which undermines the public order and violates community standards of decency.

How do sex clubs such as the late, lamented Kama Sutra disrupt that order? For one thing, they legitimize infidelity, something everyone can condemn, regardless of creed and politics. People of faith (some of whom are also practicing attorneys) understand that anything that promotes promiscuity, as communal sex surely does, tears at the fabric of society. It destroys the foundation of family and intimate relationships and leads us to adopt a "laissez-faire" attitude towards morality. Laissez-faire works wonderfully for the economy, but it doesn't do much for interpersonal relationships. And to those who would say that morality has no place in the formulation of universally applicable laws, the answer is clear. The Constitution does not protect obscenity, and community standards are a compelling factor in whether an activity should be proscribed or restricted.

In his separate opinion in the Barnes case, Justice Antonin Scalia underscored this point by implying that certain activities can be banned because of their intrinsic immorality, even if they don't offend the majority of people: "The purpose of Indiana's nudity law would be violated ... if 60,000 fully consenting adults crowded into the Hoosier Dome to display their genitals to one another, even if there were not an offended innocent in the crowd." This is one justice who knows how to make a point. No wonder he was recently dubbed the funniest justice on the high court.

In addition to posing a threat to the public order, permitting sexual horseplay in an area zoned specifically for business makes a mockery of land-use laws. What's next, building a nudist colony next to the drive-thru at McDonalds, thereby giving new meaning to the term "Happy Meal?" Or perhaps allowing a hoagie shop/strip club to move next door to the local church, giving patrons the convenient option of sinning and confessing (and possibly sinning again) during their lunch hour?

No matter what lens you choose to see this through, the picture is disturbing. Allowing sex clubs to exist in areas frequented by the general public, especially children, is a dangerous deviation from accepted norms.

And deviations, sexual, legal or otherwise, should be avoided at all costs.

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