Right Side of the Rainbow

The U.S. Court of Appeals for the Eleventh Circuit (Alabama, Georgia, Florida) has upheld Alabama’s ban on the sale of sex toys. (See Ala. Code § 13A-12-200.2(a)(1), which makes unlawful the commercial distribution of devices that stimulate human genitalia.)

Highlights of the decision

Question: Following the U.S. Supreme Court’s opinion in Lawrence, 539 U.S. 558 (2003), does the preservation of “public morality” still serve as a constitutionally legitimate basis for legislative policy judgments? Answer: Yes.

… we find that public morality survives as a rational basis for legislation even after Lawrence, and we find that in this case the State’s interest in the preservation of public morality remains a rational basis for the challenged statute.

Question: In the Eleventh Circuit’s view, did the Lawrence Court announce a fundamental constitutional right to sexual privacy? Answer: No.

… Lawrence … did not recognize a fundamental right to sexual privacy.

Question: What’s the difference between the statute at issue in Lawrence and the statute at issue here? Answer: the difference between private and public.

… while the statute at issue in Lawrence criminalized private sexual conduct, the statute at issue in this case forbids public, commercial activity. To the extent Lawrence rejects public morality as a legitimate government interest, it invalidates only those laws that target conduct that is both private and noncommercial.

[…]

This statute targets commerce in sexual devices, an inherently public activity, whether it occurs on a street corner, in a shopping mall, or in a living room. … There is nothing ‘private’ or ‘consensual’ about the advertising and sale of a dildo.

Question: Do the judges of the Eleventh Circuit endorse Alabama’s law? Answer: No.

By upholding the statute, we do not endorse the judgment of the Alabama legislature. … ‘The Constitution presumes that … improvident decisions will eventually be rectified by the democratic process and that judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted.’ … This Court does not invalidate bad or foolish policies, only unconstitutional ones; we may not ‘sit as a super-legislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines.’

Alabama’s ban on the sale of sex toys — the law does not prohibit their possession or use — is silly and intrusive. But I agree with the Eleventh Circuit that there’s nothing the federal courts can do about it.

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