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Alabama Sex Toy Ban Passes Final Court Hurdle?

The eight-year Alabama sex toy saga may finally have come to an end as the 11th U.S. Circuit Court of Appeals ruled that the state can still rationally ban sales of the devices to promote public morality.

In the latest round of litigation over what the state's lawyers have called “commerce in the pursuit of orgasms by artificial means for their own sake,” vendors and users of sexual devices argued the anti-vibrator law was unconstitutional under Lawrence v. Texas, 539 U.S. 558 (2003), in which the U.S. Supreme Court found no rational basis in public morality for banning sodomy.

“This law intrudes just as deeply into the sphere of individual decision-making about sexuality as the law struck down in Lawrence,” the plaintiffs' ACLU lawyers said.

But the 11th Circuit found the Supreme Court precedent distinguishable and affirmed a trial judge's summary dismissal of the ACLU challenge.

“[W]hile the statute at issue in Lawrence criminalized private sexual conduct, the statute at issue in this case forbids public, commercial activity,” the opinion, released, appropriately enough, on Valentine's Day, says. “To the extent Lawrence rejects public morality as a legitimate government interest, it invalidates only those laws that target conduct that is both private and noncommercial.”

Commerce in sexual devices, Judge Charles R. Wilson wrote for the court, is “an inherently public activity, whether it occurs on a street corner, in a shopping mall, or in a living room.”

Barring a successful appeal to the Supreme Court, the case is over and it will be illegal in Alabama to make money from the “pursuit of orgasms by artificial means.”

Of course, the morality guardians of the state could now rationally go after the sales of other adult products. After all, isn't a sex video just another artificial way of pursuing sexual gratification?

The 11th Circuit had twice reversed U.S. District Judge C. Lynwood Smith for striking down the sex toy ban (see table below). In February 2006, he upheld it for the first time, remarking that “This lowly court can only hope that it has not again so woefully misconstrued the Eleventh Circuit’s directives.”

AND ALL BECAUSE OF SEX TOYS ...
Citation	Disposition
Williams v. Pryor, 41 F.Supp.2d 1257 (N.D. Ala. 1999)	Law “not rationally related to any legitimate state interest.”
Williams v. Pryor, 240 F.3d 944 (11th Cir. 2000)	Law rationally related to state's interest in public morality.
Williams v. Pryor, 220 F.Supp.2d 1257 (N.D. Ala. 2002)	Under strict scrutiny test, law infringes “plaintiffs’ fundamental right to sexual privacy.”
Williams v. Atty. Gen. of Alabama, 378 F.3d 1232 (11th Cir. 2004)	"[W]e decline to extrapolate from Lawrence and its dicta a right to sexual privacy triggering strict scrutiny."
Williams v. King, 420 F.Supp.2d 1224 (N.D. Ala. 2006)	"[P]ublic morality still may constitutionally serve as a rational basis for the law in question here."
Williams v. Morgan, (11th Cir. 2007)	"Unlike Lawrence, the activity regulated here is neither private nor noncommercial."

By Matthew Heller
2/14/07