Tuesday, January 25, 2011

Lancer de Nains

Since I don't have anything else to write about (there's not much going on in the world, even in Luxembourg they're only doing a few boring cases, like this balloon flight case, which for some reason was considered worthy of the Grand Chamber), I thought I'd take a moment to fix a shortcoming of my post on the Conseil Constitutionnel's decision on the burqa ban last year. One of the precedents they relied on to find that the burqa ban was in compliance with the French constitution (though not necessarily with the ECHR, which is a question that was not before them), was the dwarf tossing case of the Conseil d'État from 1995.

In real-world terms, it suffices to quote wikipedia in order to establish the epic awesomeness of the concept of tossing dwarves:
Dwarf tossing is a bar attraction in which dwarfs wearing special padded clothing or Velcro costumes are thrown onto mattresses or at Velcro-coated walls. Participants compete to throw the dwarf the farthest.
For more details see this blog post, or skip straight to this Youtube video.

It is obvious how all of this can lead to headaches for the participants (faulty landings, too much beer, etc). But it has been causing problems for lawyers as well, at least for those lawyers looking to ban the practice. After all, there is such a thing as freedom of contract, even if it isn't always easy to find an explicit legal basis for it.

US Constitution, Amendment XIV:
nor shall any State deprive any person of life, liberty, or property, without due process of law (cf. Lochner, of course)

EU Charter of Fundamental Rights, article 15(1):
Everyone has the right to engage in work and to pursue a freely chosen or accepted occupation.

Déclaration des Droits de l'Homme et du citoyen de 1789, art. 4:
La liberté consiste à pouvoir faire tout ce qui ne nuit pas à autrui.

Art. 5:
La Loi n'a le droit de défendre que les actions nuisibles à la Société. Tout ce qui n'est pas défendu par la Loi ne peut être empêché, et nul ne peut être contraint à faire ce qu'elle n'ordonne pas.

Preamble of the Constitution of 1946, art. 5:
Chacun a le devoir de travailler et le droit d'obtenir un emploi.

German Basic Law, art. 2(1):
Jeder hat das Recht auf die freie Entfaltung seiner Persönlichkeit, soweit er nicht die Rechte anderer verletzt und nicht gegen die verfassungsmäßige Ordnung oder das Sittengesetz verstößt.

Art. 12(1):
Alle Deutschen haben das Recht, Beruf, Arbeitsplatz und Ausbildungsstätte frei zu wählen. Die Berufsausübung kann durch Gesetz oder auf Grund eines Gesetzes geregelt werden.

Obviously, all of these provisions allow for certain contracts and certain kinds of employment to be forbidden. Even in the most libertarian society, some contracts are forbidden. However, these are usually contracts that do some kind of clearly discernible harm to third parties, such as the contract to assault a third which was the subject of my (also) beloved Allen v. Rescous (1676). This is obviously the situation contemplated by art. 4 of the Declaration of 1789. Art. 2(1) of the German basic law, on the other hand, contemplates limitations based on the Sittengesetz as well, which is potetially much wider. In general, though, it is safe to say that the idea of forbidding a certain practice because people think it is yuckie makes most jurists distinctly uneasy.

In the US, we see this debate in the two main cases on discriminatory laws against gays: Romer v. Evans (1996) and Lawrence v. Texas (2003). The Jackpot phrase is in the former:
[The] sheer breadth [of the law in question] is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class it affects; it lacks a rational relationship to legitimate state interests. (per Kennedy J, for the majority)
As Justice Scalia notes in his dissent, this seems to suggest that:
Coloradans have been guilty of “animus” or “animosity” toward homosexuality, as though that has been established as un-American.
Even though the later case of Lawrence wasn't so straightfoward in its rejection of anti-gay "animus", lower courts have generally required some rational basis beyond moral disapproval for anti-gay laws to be upheld. (Eg. the best US ruling on same-sex marriage to date, the Iowa Supreme Court case of Varnum v. Brien.) Mere animus is not a legitimate state interest.

So where does that leave dwarf tossing? Well, the facts are that this practice occurs with the full consent of all involved, including the dwarves, and that there seems to be no viable argument that it hurts any third party. As far as I am concerned, that should settle the matter; dwarf tossing should be legal. And yet, in a number of jurisdictions, attempts were made to ban it. In France, the matter went all the way up to the highest administrative court, the Conseil d'État, which overruled the lower court and held that the Mayor of Morsang-sur-Orge had not acted ultra vires in banning the practice of dwarf tossing within his commune, since it was within the ambit of art. L131-2 of the Code des Communes:
La police municipale a pour objet d'assurer le bon ordre, la sûreté, la sécurité et la salubrité publique.
The argument was that these dwarf tossing events were a violation of the public order, because apparently that notion includes respect for human dignity as well as the more common goals of public safety, etc. The analyse, provided by the Conseil d'État to help readers make sense of its typically terse judgement, refers to a number of precedents that support this wider interpretation of bon ordre, dealing with such issues as prostitution, bathing attire on the beach and the inscriptions on grave stones, all of which are indeed traditional areas of regulatory concern. In so deciding the Conseil d'État emphasises that human dignity is in fact a value of constitutional concern, citing art. 3 of the ECHR as well as a precedent of the Conseil Constitutionnel to that effect. (This may be so, but it surely doesn't follow that just because the constitution forbids the government from doing something, it also authorises the government to forbid private citizens. There are many things that citizens are allowed to do but governments may not.)

The final paragraph of the Conseil's "analyse" gets to the heart of the matter. It states that under this precedent public order is more than something that is "material and external". However,
Il n’a toutefois pas consacré la moralité publique comme une composante de la notion d’ordre public, se gardant ainsi d’interpréter trop largement les pouvoirs de police de l’autorité administrative.

Concern for human dignity may authorise government intervention, but public morality does not. Whatever that means...

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