11th Circuit Sex Toys Wars - They Just Won't Give It Up!!

As a Valentine's Day gift to the people of Alabama, the US Court of Appeals, 11th Circuit, has once again reaffirmed the constitutionality of Alabama's law forbidding the sale or commercial distribution of any device "primarily for the stimulation of human genital organs," i.e., sex toys.  This case has been kicking up and down the federal system for quite a while, and has had several stops at the circuit level.  This latest decision, February 14, affirms the ruling by the district court that the public morality concerns of the Alabama legislature remain a sufficient rational justification to sustain the law, even after Lawrence v. Texas (the 2003 Supreme Court decision striking down that state's misdemeanor homosexual conduct law) seemingly ruled out morality as a justification for a criminal statute that burdens private, consensual sexual activity.

The court, reiterating reasoning from its prior rulings in the case (which was originally filed before the Lawrence case was decided), insists that Lawrence has not eliminated all morals legislation (as Justice Scalia famously declared that it had done in his dissent in that case).  The opinion by Circuit Judge Wilson cites a variety of Supreme Court decisions, all of which predate Lawrence, for the proposition that the Supreme Court has frequently sustained statutes on morality grounds, and also makes much of the fact that the statute only forbids commercial sale and distribution, but does not impose any penalties for private possession or use.  Presumably, horny Alabamans seeking stimulation from sexual devices are free to acquire them elsewhere and bring them home.  There are no roadblocks on highways into Alabama to check the trunks of cars for contraband dildoes....  as far as we know.  And, presumably, Alabamans can purchase sex toys on line and have them shipped in state, since I suspect any attempt by Alabama to interfere with such shipments would run into federalism and dormant commerce clause problems.  Indeed, anybody is free to bring a big supply of sex toys into Alabama and distribute them as gifts, since the statute only concerns commercial distribution.

What is really at stake here is the ability of somebody to operate a retail business selling sex toys in Alabama and, writ larger, what is really at stake is the ability of the Alabama legislature to continue passing or maintaining laws primarily as an expression of their asserted views of public morality, without any need to demonstrate some other public purpose for the laws as a justification.

One would have thought after Lawrence, and particularly after Justice Kennedy's quote from Justice Stevens' dissent in Bowers v. Hardwick as the ratio decidendi of the case, that lower courts would have gotten the message, but not the 11th Circuit.  One hopes this one goes en banc, so at least we can enjoy another stimulating dissenting opinion by Judge Barkett (similar to her dissent in the Lofton en banc denial ruling) or perhaps even a majority opinion by Judge Barkett - a result profoundly to be urged to get this circuit in line with the rest of the country.