Posted on 07/28/2004 11:36:53 PM PDT by FairOpinion
BIRMINGHAM, Ala. - A federal appeals court Wednesday upheld a 1998 Alabama law banning the sale of sex toys in the state, ruling the Constitution doesn't include a right to sexual privacy.
In a 2-1 decision overturning a lower court, a three-judge panel of the 11th U.S. Circuit Court of Appeals (news - web sites) said the state has a right to police the sale of devices that can be sexually stimulating.
The American Civil Liberties Union (news - web sites), which represented merchants and users who sued to overturn the law, asked the appeals court to rule that the Constitution included a right to sexual privacy that the ban on sex toy sales would violate. The court declined, indicating such a decision could lead down other paths.
"If the people of Alabama in time decide that a prohibition on sex toys is misguided, or ineffective, or just plain silly, they can repeal the law and be finished with the matter," the court said.
"On the other hand, if we today craft a new fundamental right by which to invalidate the law, we would be bound to give that right full force and effect in all future cases including, for example, those involving adult incest, prostitution, obscenity, and the like."
Attorney General Troy King said the court "has done its duty" in upholding the law.
Sherri Williams, an adult novelty retailer who filed the lawsuit with seven other women and two men, called the decision "depressing."
"I'm just very disappointed that courts feel Alabamians don't have the right to purchase adult toys. It's just ludicrous," said Williams, who lives in Florida and owns Pleasures stores in Huntsville and Decatur. "I intend to pursue this."
U.S. District Judge Lynwood Smith Jr. of Huntsville has twice ruled against the state law, deciding in 2002 that the sex toy ban violated the constitutional right to privacy. The state appealed both times and won.
The state law bans only the sale of sex toys, not their possession, the court said, and it doesn't regulate other items including condoms or virility drugs. "The Alabama statute proscribes a relatively narrow bandwidth of activity," U.S. Circuit Judge Stanley F. Birch Jr. wrote.
Circuit Judge Rosemary Barkett disagreed, saying the decision was based on the "erroneous foundation" that adults don't have a right to consensual sexual intimacy and that private acts can be made a crime in the name of promoting "public morality."
By the same logic, tomorrow the state can prohibit the sale of tobacco, or anything else, it deems "inappropriate" for any reason.
And what is this about the Constitution doesn't guarantee the right to sexual privacy?!
As silly as I think this law is, it was the right decision. But let's see how many people say, "let's leave it up to the states."
Looks like legislation from the Bench!
"If the people of Alabama in time decide that a prohibition on sex toys is misguided, or ineffective, or just plain silly, they can repeal the law and be finished with the matter," the court said.
Why do you think it was the right decision?
The states are not supposed to take away rights guaranteed to us under the US Constitution.
The issue is not the stupid sex toys, but you could substitute anything for it.
Next thing will be we won't have a right to "food privacy" of eating whatever foods we want.
Hmmmmm... don't think so.
The constitution supports the "leave it up to the states" argument.
Amendment X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
Perfectly logical. There is no 'right' to these things after all.
They can and do place restrictions on those items now. Its the same with these um, toys.
Please remember that the US Constitution is a contract between the US government and the states/people. It does not (except in specific cases, like the 14th amendment) govern the relationship between the states and the people.
I see your point. The State passed the law, the court upheld the right of the State to have passed it.
I guess it comes down, whether the States have the right to prohibit the sale of certain items, and I suppose I agree that they do.
The part that bothers me is "ruling the Constitution doesn't include a right to sexual privacy."
I think they could have upheld the State's right to ban items for sale, without making the above statement.
Right to privacy is right to privacy.
"By the same logic, tomorrow the state can prohibit the sale of tobacco, or anything else, it deems "inappropriate" for any reason. "
Yes, it pretty much can, except for things protected by the 1st or 2nd amendment, or by the constitutions of that state.
It's a stupid law, but it's a good ruling. There is really no federal jurisdiction in this matter. I'm sure some activists judges would like to find some, but applying the BOR where it doesn't have standing just dilutes the meaning of the document.
I think Lawrence was out of line with a lot of previous and later rulings.
"are reserved to the states respectively, or to the people."
Yep. Now the group of people that put it to court can do it the old fashioned way. Get a bunch of petitions going, get it on the state legislature's desk, a referendum, or however else they make and change laws down there.
Or they could just stick to using feathers.
The difference between sexy and kinky:
Sexy is using a feather.
Kinky is using the whole *&%@ chicken.
But this law could have been said to violate property rights. no?
I do agree. Which is why the SCOTUS will probably reverse the appeals court. No way do they want to revisit the abortion and sodomy issues again. And gay marriage. Oh what a tangled web the federal courts do weave!
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