The 11th Circuit has yet again upheld Alabama’s statute making it “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.” [Opinion PDF.] Michael Hayes reports that conflicting rulings on this matter in other states might ultimately force the Supreme Court to weigh in.
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.
I think that’s right.
Julian Sanchez argues such laws are obviously unconstitutional under the 1965 ruling in Griswold which created the privacy doctrine in striking down bans on the sale of contraceptives and especially the 2003 ruling in Lawrence establishing a right to homosexual sodomy among adults in private settings without monetary compensation.
While I think these laws are uncommonly silly, the 11th Circuit’s reasoning strikes me as quite solid. Localities have a “legitimate rational basis” for regulating public morality and therefore “the statute survives rational basis scrutiny.” Banning consensual sexual conduct among adults in the privacy of their homes did not meet that standard. Further, the ruling implies that the fact that “The statute does not prohibit the use, possession, or gratuitous distribution of sexual devices” is important. That is, it’s the sale of such devices that’s prohibited, not the resulting private activity.
States and localities have long been given incredible leeway over such matters. For example, the Supreme Court ultimately took a “community standards” approach to obscenity law, recognizing that different localities have different mores that must be respected. Things that might go unnoticed in San Francisco or Manhattan would shock the conscience in rural Mississippi or Pennsylvania’s Amish country.
The ability to make a living selling sex toys has much lower Constitutional standing than, say, speech. The latter is, after all, actually mentioned in the document. Yet the courts have permitted numerous carve-outs in which speech rights–which would appear absolute from the plain language of the 1st Amendment–must be balanced against other societal interests. There are all manner of words, for example, that are not permitted on the public airwaves and plenty of time, place, and manner restrictions on speech generally.
