11th Circuit upholds Ala. ban on sale of sex toys

Friday, February 16, 2007

MONTGOMERY, Ala. — A federal appeals court issued a Valentine's Day ruling upholding an Alabama law banning the sale of sex toys. But the devices won't disappear from store shelves immediately.

The 11th U.S. Circuit Court of Appeals ruled that Alabama's sex toy ban is constitutional because “the state's interest in preserving and promoting public morality provides a rational basis for the challenged statute.”

Chris Bence, spokesman for the attorney general's office, said the plaintiffs have additional appeals left and the state agreed years ago not to enforce the law until the case was completed.

The lead plaintiff, Sherri Williams, said she was disappointed the 11th Circuit dated its ruling Feb. 14, “on the very day this nation celebrates romance.”

The new ruling in Williams v. Morgan was issued by a three-judge panel of the 11th Circuit. Williams can ask the full court to review the case and, if rejected, appeal to the U.S. Supreme Court — two steps she said she hopes to take after reviewing the ruling with her attorneys.

In 1998, the Alabama Legislature enacted a law that bans the sale of sex toys, but not their possession. Alabama residents may lawfully purchase sex toys out of state for use in Alabama, or use them if the devices have other recognized medical or therapeutic uses. The Alabama law doesn't regulate other items, such as condoms or virility drugs.

Williams, who owns Pleasures adult toy shops in Huntsville and Decatur, challenged the law in 1998 along with seven other women and two men, who represented consumers of the products. They were represented by the American Civil Liberties Union.

The plaintiffs alleged in their 1998 lawsuit that “by restricting the sales of these devices to plaintiffs, Alabama has acted in violation of the fundamental rights of privacy and personal autonomy that protect an individual's lawful sexual practices guaranteed by the First, Fourth, Ninth and Fourteenth Amendments of the United States Constitution.”

In August 1999, U.S. District Judge Lynwood Smith struck down the law, ruling that it was “overly broad.” Smith also noted that people who used the devices would be “denied therapy for, among other things, sexual dysfunction.”

The judge wrote that “a majority, or at least a significant minority, of the proscribed devices, as a matter of law, are not obscene under any established definition of obscenity.”

On appeal in 2000, a three-judge 11th Circuit panel unanimously reversed Smith’s decision.

Various issues in the case have been circulating through the federal courts for years, but the new ruling from the 11th Circuit is the one attorneys on both sides had been awaiting. First Amendment claims were not addressed in this week's ruling.

Alabama's solicitor general, Kevin Newsom, said he was pleased the 11th Circuit had rejected the plaintiffs' argument that public morality was an insufficient basis for the legislation.

“In rejecting that view, which necessarily would have invalidated traditional prohibitions on, for instance, incest, polygamy, and prostitution, the 11th Circuit recognized and reiterated that 'the law is constantly based on notions of morality,'” Newsom said.

In previous appeals to the 11th Circuit, Williams and her attorneys had argued that the law was an unconstitutional intrusion into bedrooms, but the 11th Circuit held there was no fundamental right to use sexual devices.

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