Jane Roe, a 38-old single woman who finds sexual intercourse extremely painful, rediscovered the joy of sex after buying a vibrator at an adult “toy party.”
So did a 61-year-old man with erectile dysfunction, who uses sex aids to satisfy his wife. Ditto for the middle-aged couple that claims an assortment of sexual devices restored “trust, dialogue, and understanding” to what had been their crumbling marriage.
The four Alabamans attracted worldwide attention nine years ago when they joined forces with sex toy vendors B.J. Bailey and Sherri Williams to launch a constitutional attack on Alabama’s 1998 ban on the commercial sale of recreational devices used “primarily for the stimulation of human genital organs.” The controversial law exposes vendors to up to one year in jail and up to $10,000 in fines for a first offense.
But after a decade of litigation, the plaintiffs and their backer, the ACLU, might have struck out in February when the 11th Circuit rejected their case for the third time, begrudgingly upholding the ban as “rationally related” to the state’s legitimate power to protect its view of public morality.
“By upholding the statute we do not endorse the judgment of the Alabama legislature,” the court wrote. “[But] this court does not invalidate bad or foolish policies, only unconstitutional ones.”
The decision sounds the death knell for many flourishing businesses in Alabama, including Bailey’s company “Saucy Lady,” which has sold sex aids and novelties since 1993, and Williams’ “Pleasures” retail outlets in Huntsville and Decatur. The state had agreed not to enforce the law while the litigation was pending.
Huntsville attorney Michael Fees, a partner with Fees & Burgess, will ask the Supreme Court to hear the plaintiffs’ appeal, even though the court has refused once before to hear the case.
“Nobody thinks the legislature needs to be in our bedrooms,” contends Fees, who insists the case presents the High Court with a golden opportunity to elucidate the scope of its famous but enigmatic majority judgment in the 2003 case Lawrence v. Texas, which struck down the state’s anti-sodomy laws.
Some lawyers argue Lawrence requires courts to strike down bans on the sale of sexual devices, reasoning that public morality, by itself, no longer remains a legitimate basis for state action bearing on private consensual sexual behavior. That is the position the ACLU asks the Supreme Court to adopt.
“Any law founded exclusively or primarily upon consideration of the morality of the majority is subject to scrutiny in light of Lawrence,” Fees explains.
Relying on the 14th Amendment’s substantive due process guarantee, the ACLU maintains there is no rational relationship between the ban on selling sexual devices for recreational use and a proper legislative purpose.
The 11th Circuit disagreed, holding that “the state’s interest in the preservation of public morality remains a rational basis for the challenged statute.”
Alabama argued that it was crucial that the court affirm states’ right to legislate based on ideas of public morality, even when the law arguably encroaches on private, consensual conduct. The state had warned the court that striking down the sex toy ban would open a Pandora’s Box of constitutional litigation that could jeopardize prohibitions on gay marriage, adult incest, prostitution, obscenity, bigamy, polygamy, adultery, necrophilia and even some illicit drug statutes.
“The great majority of Americans think the legislature ought to be able to tackle those issues,” says Kevin Newsom, Alabama’s solicitor general.
He predicts that in the wake of Lawrence “you will see a certain momentum building up with state high courts and U.S. courts of appeals saying Lawrence was an important decision, but it doesn’t completely upset the apple cart with respect to how states have been legislating for hundreds of years.”
Such a development would be good news for the seven states that presently outlaw the commercial sale of sex toys. So far courts have upheld bans in Alabama, Georgia, Mississippi, and Texas, but struck them down in Colorado, Kansas and Louisiana.
Reed Lee, an adult entertainment industry lawyer and president of the First Amendment Lawyers Association, calls it “unfortunate” but not surprising that the federal courts are resistant to what he sees as the Supreme Court majority’s message in Lawrence that consensual intimate behaviors are beyond the scope of state regulation.
“What it shows is that ?? 1/2 because constitutional privacy issues touch some of the most controversial issues in American politics, and also because the doctrine of substantive due process is itself so controversial for technical legal reasons, progress in these cases is going to be slow and erratic,” Lee predicts.
Meanwhile, the financial stakes are high. Sex toys are the fourth largest slice of the $12.6 billion-adult entertainment pie, says Adult Video News, after adult video rentals and sales ($4.3 billion), Internet adult sites ($2.5 billion) and strip clubs ($2 billion). Sex toy sales exceed revenue from adult magazines and fantasy phone sex.
Fees sees the case as a cautionary tale for all businesses and their corporate counsel. Alabama legislators didn’t know they were banning adult toys when they voted in favor of an apparently innocuous law targeting strip clubs, he says.
“What should be frightening to everyone, including business, is that this law was passed in ignorance,” Fees remarks. “The lesson to be learned is this: ‘Do not accept proposed legislation on its face. Take the time to read the law.’”