Should the government be permitted to regulate sex in your house? What if it’s sex among a few friends? What if your friends contribute money to the party?
A private “swingers” club (sex club) called “The Cherry Pit” has been battling the City of Duncanville, Texas which is trying to close it down. The swingers club is in a private residence in an upscale neighborhood near Dallas. Whether the large number of guests or morality is the issue, apparently neighbors have complained about traffic from a large number of club members, crime and “unsavory” elements created by the club.
The City of Duncanville responded by passing a law or ordinance stating, “The operation and maintenance of a sex club to be unlawful and a public nuisance,…”. Violation of the new ordinance is punishable by a fine of up to $2,000.
It appears to me that the City of Duncanville, The Cherry Pit, and people writing on the topic are all barking up the wrong tree.
The City of Duncanville has tried to make sex among friends, who belong to a club, a violation of law. Instead, the city should avoid the constitutional issues involved in regulating sex among friends and concentrate its efforts on regulating businesses in a residential neighborhood or regulating activities which become a nuisance or a burden upon law enforcement. Governments regulate many activities which create a nuisance. For instance, loud music, noises or construction too early in the morning or late at night.
The issues which The Cherry Pit should be concerned with is whether it is operating a business or creating a nuisance.
Brian Cuban, Esq. (the brother of Mark Cuban) wrote in his blog, The Cuban Revolution, Is There a Constitutional Right to An Orgy?, “What about gambling? Consenting adult[s] coming together to play poker or even chess for money? When does the government have the right to regulate such victimless consenting acts that may not be illegal in and of themselves? When is there a compelling government interest?”
The analogy to gambling is inappropriate. Gambling is illegal, even in private among friends. Engaging in sex with multiple partners in one’s home, even in a group at the same time, is not illegal as long as money is not exchanged for sex.
A more proper analogy is where friends come to my home to play chess or poker, not for money (win or lose), but they contribute to the food. If we agree to meet at my house every week and I order in food from an expensive restaurant, should I always have to pay for the food or should I be allowed to request my friends to split the cost with me?
If The Cherry Pit is conducting a party where adults can come and have sex with each other and it is not a business or a nuisance, the government has no business trying to regulate it. If these friends are really sharing the cost of the food, there should be no difference.
Philip L. Franckel, Esq.
