Court OKs Alabama Ban on Sale of Sex Toys
Washington
Post, July 28, 2004
Washington, DC
By Jay Reeves
BIRMINGHAM, Ala.—A federal
appeals court Wednesday upheld a 1998 Alabama law banning the sale of sex toys
in the state, ruling the Constitution doesn’t include a right to sexual
privacy.
In a 2-1 decision overturning a lower court, a
three-judge panel of the 11th U.S. Circuit Court of Appeals said the state has
a right to police the sale of devices that can be sexually stimulating.
The American Civil Liberties Union, which represented
merchants and users who sued to overturn the law, asked the appeals court to
rule that the Constitution included a right to sexual privacy that the ban on
sex toy sales would violate. The court declined, indicating such a decision
could lead down other paths.
“If the people of Alabama in time decide that a
prohibition on sex toys is misguided, or ineffective, or just plain silly,
they can repeal the law and be finished with the matter,” the court said.
“On the other hand, if we today craft a new fundamental
right by which to invalidate the law, we would be bound to give that right
full force and effect in all future cases including, for example, those
involving adult incest, prostitution, obscenity, and the like.”
Attorney General Troy King said the court “has done its
duty” in upholding the law.
Sherri Williams, an adult novelty retailer who filed the
lawsuit with seven other women and two men, called the decision
“depressing.”
“I’m just very disappointed that courts feel
Alabamians don’t have the right to purchase adult toys. It’s just
ludicrous,” said Williams, who lives in Florida and owns Pleasures stores in
Huntsville and Decatur. “I intend to pursue this.”
U.S. District Judge Lynwood Smith Jr. of Huntsville has
twice ruled against the state law, deciding in 2002 that the sex toy ban
violated the constitutional right to privacy. The state appealed both times
and won.
The state law bans only the sale of sex toys, not their
possession, the court said, and it doesn’t regulate other items including
condoms or virility drugs. “The Alabama statute proscribes a relatively
narrow bandwidth of activity,” U.S. Circuit Judge Stanley F. Birch Jr.
wrote.
Circuit Judge Rosemary Barkett disagreed, saying the
decision was based on the “erroneous foundation” that adults don’t have
a right to consensual sexual intimacy and that private acts can be made a
crime in the name of promoting “public morality.”
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