11th Circuit Court of Appeals Says: No Fundamental Right to Sex Toys
By Michael Hayes
Thursday, February 15, 2007 ATLANTA In a unanimous
opinion, a three-judge panel for the 11th U.S. Circuit Court of Appeals upheld
an Alabama statute banning the commercial distribution of sex toys, saying that
there is no fundamental right to privacy raised by the plaintiffs case against
the law. According to the statute, it is unlawful for any person to knowingly
distribute any obscene material or any device designed or marketed as useful
primarily for the stimulation of human genital organs.
In 1998, the Alabama chapter of the ACLU brought suit on behalf of several
plaintiffs chief among them adult toy retailer Sherri Williams seeking to
enjoin the statute. The recent ruling by the 11th Circuit marks the third trip
through the appellate process for the case.
In his opinion affirming the Alabama District Courts ruling, Judge Charles
Wilson concluded that the state has a legitimate rational basis for the
challenged legislation despite a recent U.S. Supreme Court decision Lawrence
vs. Texas which overruled anti-sodomy laws across the country.
Adult entertainment industry attorney Reed Lee told XBIZ that the Lawrence
case, which overruled Bowers vs. Hardwick, combined with another famous line of
cases Griswold vs. Connecticut and Roe vs. Wade establish a clear right to
what the U.S. Supreme Court has called a personal zone of autonomy protected by
the due process clause of the 14th Amendment.
I think the plaintiffs in this case are having a difficult time because
although they rely on well-established doctrine that says consensual acts
between adults is within that zone of protected autonomy, that doctrine comes
from some of the most controversial Supreme Court cases in the last few
decades, Lee said. But from the word go the U.S. Supreme Court has given a
plaintiff such as Williams the analysis necessary to win.
Lee said that cases involving substantive due process issues often require
multiple appellate challenges to vindicate a plaintiffs rights.
In deciding the Williams case, Wilson wrote that the recent decision in
Lawrence was distinguishable because that case did not involve the sale or
distribution of anything merely the right to engage in sexually protected
acts within a zone of privacy.
The statute at issue in Lawrence criminalized private sexual conduct, the
statute at issue in this case forbids public, commercial activity, Wilson
wrote.
But according to Lee, the U.S. Supreme Court in Griswold made clear that the
right to use contraception the issue in that case didnt mean anything
without the right to buy it.
It seems to many of us that right to use a mechanical device such as a sex toy
is already encompassed in the Griswold and Lawrence decisions, Lee said.
According to Lee, the third decision by the 11th Circuit looks to be the last
word on the case from that court. But he said the plaintiffs are likely to file
an appeal to the U.S. Supreme Court.
Whether the U.S. Supreme Court decides to hear the case is unclear. But Lee
said, if the Court does not take the case, it says nothing about the merits of
the law in question.
In October, the U.S. Supreme Court declined to hear an appeal in a Texas case
banning the distribution of obscene sex toys.
In that case, Acosta vs. Texas, attorney Roger Diamond urged the Court to
weigh in on the matter because of conflicting opinions around the country from
various state courts.
Colorado, Kansas and Louisiana courts have all said that laws banning the sale
of sex toys on obscenity grounds are unconstitutional.
Courts in Georgia, Mississippi and Texas have upheld sex toy bans.
As those cases work their way through the federal appellate ranks, a split in
the circuits would likely compel the U.S. Supreme Court to hear a sex toy case.
If Texas cant have a law against sodomy, it seems difficult to say that
Alabama can ban the sale of sex toys, Lee said.
The case is Williams vs. Morgan, 06-11892.
To read the full opinion, click here.
