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Five years ago, I authored a piece on this page about a little-known battle in our ongoing culture wars-a lawsuit attacking Alabama Code 13A-12-200.2, which criminalizes the commercial sale of “any device designed or marketed as useful primarily for the stimulation of human genital organs.” Since then, I foolishly believed that this quaint provision, found to be unconstitutional in Williams v. Pryor (1999), had gone the way of the dodo bird. Having no occasion to follow up, I was unaware that Williams was reversed by the 11th U.S. Circuit Court of Appeals in 2001. So, to continue the saga (which has taken on a life of its own), the 11th Circuit, after remanding the case, heard it once again this past summer in Williams IV. The 11th Circuit again upheld the law as constitutional, finding that it did not infringe on substantive due process or a right of sexual privacy. Remarkably, this occurred a year after the landmark Lawrence v. Texas decision. A careful parsing of the majority opinion-which, incidentally, went to great lengths to analyze what Lawrence did not hold, noted that in an earlier application of Lawrence, the court had held that Lawrence did not “announce a new fundamental right . . . to all forms of sexual intimacy.” The court insisted that Lawrence did not “employ fundamental-rights analysis and that it ultimately applied rational-basis review, rather than strict scrutiny, to the challenged [Texas sodomy] statute.” The majority then castigated itself for having earlier accepted the district court’s characterization of the claim, “an individual’s liberty to use sexual devices when engaging in lawful, private sexual activity,” and having equated it with a right of sexual privacy. This early misstep on the part of the 11th Circuit the first time it heard the case led to the district court’s second voiding of the law in 2002 as invasive of sexual privacy. After windbagging around, the majority finally framed the issue as whether the Constitution “protects a right to use such devices.” Invoking history, Comstock Act Even assuming that this is the right question after Lawrence, which did not posit a right to private homosexual sodomy but found an invasion of the right to consenting adult sexual privacy, the Williams majority jumped to “history and tradition,” thereby, of course, rendering the conclusion foregone. The 11th Circuit eschewed any reliance on “evolving standards,” noting that the district court “placed too much weight on contemporary practice and attitudes” about sexual conduct and devices; the court dredged up, of all things, the Comstock Act of 1873 as evidence of proscription. A dissent noted that “ Lawrence held that a state may not criminalize sodomy because of the existence of the very right to private sexual intimacy that the majority refuses to recognize,” rather than any particular act, deeming history and tradition irrelevant to a substantive due process claim. The dissent also argued that “Under Lawrence, public morality cannot be deemed a legitimate governmental purpose for criminalizing private sexual activity.” It’s d�j� vu all over again. Presumably, the American Civil Liberties Union will seek en banc rehearing and, whatever the result, the Supreme Court may be offered a crack at it. Perhaps there will be no further judicial review on the ground that the matter is too trivial. Whether or not public morality remains a ground for intervening in sexual private affairs, or Alabama’s law even mirrors contemporary public morality anywhere, or Lawrence has any meaning greater than the majority was willing to ascribe, we can be sure that the culture wars-political and judicial-will continue unabated. Isidore Silver is a retired professor of constitutional law and history at the City University of New York.

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