The late Justice Antonin Scalia, whose influence can still be felt throughout the American judiciary, once mocked the idea that the Constitution protects the right of adults to masturbate in private.

In a dissent from a Supreme Court decision declaring that private consensual homosexual conduct is constitutionally protected, he paraded out the horrible consequences that would inevitably flow from this libertarian ruling: the striking down of “state laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery fornication, bestiality and obscenity… ”

What legitimate interest would any state have in criminalizing masturbation — or for that matter fornication or adultery between or among consenting adults? The fact remains, however, that these private acts were included in the penal (no pun intended) codes of many American states and still survive in some. They are rarely enforced, except in the context of divorce or child custody cases in which one spouse accuses the other of such “immoral” conduct.

But for the late Justice Scalia and some of his judicial followers, the state has a perfect right to impose the morality of the majority (whatever that might be) on the minority. So if the legislature, presumably reflecting the will of the majority, decides that private masturbation is a moral sin (called onanism, based on the biblical figure Onan, who “spilled his seed on the ground”), the Constitution, under this view, would not prohibit making it a moral crime. Nor would the First Amendment’s prohibition against establishing religion interfere, because moral views derived from the Bible are the basis for many secular laws, included those prohibiting murder and theft.

Nor was Justice Scalia alone in expressing this view. He was joined in his dissent by the then — Chief Justice William Rehnquist and current Justice Clarence Thomas. Moreover, President Trump’s nominee to the high court, Neil Gorsuch, cited Scalia’s masturbation language in a book he wrote denying that a person dying from a painful illness had a constitutional right to end his life with dignity. So Gorsuch, too, seems to believe that conduct that harms no one but the actor, but that society deems immoral, may constitutionally be criminalized.

“The Constitution should protect any autonomous act that hurts no one but the actor.”

For some of the judges and justices who would deny individuals the right to act on their own sense of morality, there is one striking exception: If their morality is based on a religious obligation, then the First Amendment’s “free exercise of religion” clause precludes the state from criminalizing it.

But the Supreme Court had previously held, in the context of conscientious objection to war, that there is no constitutionally valid distinction between a moral view that derives from religion and one that derives from secular philosophy, as long as they are both strongly and conscientiously held. That is the correct view. The First Amendment prohibits preferring religion over non-religion or one religion over another. If two people are dying of a painful illness, and each one wants to end their life with dignity, but one of them has a religious basis for making that decision while the other one has a secular philosophical basis for the decision, there should be no constitutional difference between the two.

The Constitution should protect any autonomous act that hurts no one but the actor. As the old saying goes: My right to swing my fist ends at the tip of your nose. That is why there should be a right to inhale cigarettes, but no constitutional right to exhale them in a crowded theater.

Applying these principles to sexual autonomy, there surely should be a right to masturbate and fornicate, just as there is a right of consenting adults to private homosexual conduct. Even Justice Scalia seemed to believe that if the Supreme Court struck down the prohibition against homosexual conduct, it would follow that it should strike down other prohibitions against “moral” conduct — such as masturbation and fornication — that hurts no one other than the actor. The right to commit adultery might be a bit more complicated, because it may hurt the other spouse (unless the marriage is an open one by agreement).

True conservatives should want to keep the state out of our bedrooms, our bathrooms, and other private areas where sexuality is practiced. But neither Scalia nor Gorsuch seem to be true conservatives. They are statists who allocate to the state the power to impose the majority morality on the minority. That is not good policy. Nor is it good constitutionality. The right to personal autonomy — sexual or otherwise — should be recognized by all who care about liberty.

PHOTO: SHUTTERSTOCK / ALESSANDRO COLLE