Posted by Eugene Volokh: Devices "Useful Primarily for the Stimulation of Human Genital Organs" Going to the Supreme Court? http://volokh.com/archives/archive_2009_09_13-2009_09_19.shtml#1253032890
Friday, the Alabama Supreme Court upheld (by a 7-2 vote, in [1]1568 Montgomery Highway, Inc. v. City of Hoover) a [2]state statute that criminalizes, among other things, "knowingly distribut[ing] ... any device designed or marketed as useful primarily for the stimulation of human genital organs for any thing of pecuniary value." (The "for any thing of pecuniary value," I take it, modifies "knowingly distribut[ing].") It's quite possible that the issue will now go to the Supreme Court. There was already a split on whether such statutes are constitutional in the wake of Lawrence v. Texas. The Eleventh Circuit upheld the Alabama statute in [3]Williams v. Morgan (2007), but last year the Fifth Circuit struck down a similar Texas statute in [4]Reliable Consultants, Inc. v. Earle. Texas decided [5]not to ask the U.S. Supreme Court to review the Fifth Circuit decision, despite the circuit split. But presumably the losers in the Alabama case will likely ask for review, and the split creates a decent chance of the Court's agreeing to hear the case. Last year, when I was assuming that Texas would indeed ask the Court to review the Reliable Consultants decision, I predicted that: (1) The Supreme Court will agree to hear the case. (2) The Supreme Court will conclude the statute is constitutional. (3) The vote will be at least 6-3, because even some of the liberals on the Court -- especially Justice Breyer -- and moderate conservative Justice Kennedy will think that the courts' power to recognize unenumerated rights should be saved for rights (e.g., abortion, contraception, sexual intimacy, parental rights, right to refuse medical treatment, right to live with close family members, and the like) that are more important in most of their exercisers' lives. And this is so even though the government's arguments for the practical benefits of the law seem comparatively weak, or as to the supposed immorality of the conduct, largely conclusory. The majority on the Court will likely conclude that such conclusory moral arguments are adequate except when something more important to most people's lives is at stake (since probably no Justice accepts the libertarian constitutionalist notion that a broadranging liberty to do what one pleases so long as it doesn't directly enough hurt others is itself so important that it should be recognized as a constitutional right). I think the chances for cert (i.e., the Supreme Court's granting certiorari and thereby agreeing to hear the case) are less here, because there's no decision of a state legislature being struck down by a federal court -- a sort of inter-governmental-entity split that I think the Court itself sees as a pointer towards review. True, the Texas law remains invalidated, but Texas itself chose not to fight that battle. Moreover, here as before the case is both of comparatively minor practical importance and the sort of thing that some Justices might see as beneath the Court's dignity. Still, there seems to be a decent chance of cert here. References 1. http://www.alabamaappellatewatch.com/uploads/file/1070531.PDF 2. http://law.onecle.com/alabama/criminal-code/13A-12-200.2.html 3. http://www.ca11.uscourts.gov/opinions/ops/200611892.pdf 4. http://caselaw.findlaw.com/data2/circs/5th/0651067cv0p.pdf 5. http://sexcrimes.typepad.com/sex_crimes/2008/11/texas-decides-not-to-seek-cert-in-sex-toy-case.html _______________________________________________ Volokh mailing list Volokh@lists.powerblogs.com http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
