Friday, the Alabama Supreme Court upheld (by a 7-2 vote, in 1568 Montgomery Highway, Inc. v. City of Hoover) a state statute that criminalizes, among other things, "knowingly distribut[ing] ... any device designed or marketed as useful primarily for the stimulation of human genital organs for any thing of pecuniary value." (The "for any thing of pecuniary value," I take it, modifies "knowingly distribut[ing].")
It's quite possible that the issue will now go to the Supreme Court. There was already a split on whether such statutes are constitutional in the wake of Lawrence v. Texas. The Eleventh Circuit upheld the Alabama statute in Williams v. Morgan (2007), but last year the Fifth Circuit struck down a similar Texas statute in Reliable Consultants, Inc. v. Earle. Texas decided not to ask the U.S. Supreme Court to review the Fifth Circuit decision, despite the circuit split. But presumably the losers in the Alabama case will likely ask for review, and the split creates a decent chance of the Court's agreeing to hear the case. Last year, when I was assuming that Texas would indeed ask the Court to review the Reliable Consultants decision, I predicted that:
(1) The Supreme Court will agree to hear the case.
(2) The Supreme Court will conclude the statute is constitutional.
(3) The vote will be at least 6-3, because even some of the liberals on the Court — especially Justice Breyer — and moderate conservative Justice Kennedy will think that the courts' power to recognize unenumerated rights should be saved for rights (e.g., abortion, contraception, sexual intimacy, parental rights, right to refuse medical treatment, right to live with close family members, and the like) that are more important in most of their exercisers' lives. And this is so even though the government's arguments for the practical benefits of the law seem comparatively weak, or as to the supposed immorality of the conduct, largely conclusory. The majority on the Court will likely conclude that such conclusory moral arguments are adequate except when something more important to most people's lives is at stake (since probably no Justice accepts the libertarian constitutionalist notion that a broadranging liberty to do what one pleases so long as it doesn't directly enough hurt others is itself so important that it should be recognized as a constitutional right).
I think the chances for cert (i.e., the Supreme Court's granting certiorari and thereby agreeing to hear the case) are less here, because there's no decision of a state legislature being struck down by a federal court -- a sort of inter-governmental-entity split that I think the Court itself sees as a pointer towards review. True, the Texas law remains invalidated, but Texas itself chose not to fight that battle. Moreover, here as before the case is both of comparatively minor practical importance and the sort of thing that some Justices might see as beneath the Court's dignity. Still, there seems to be a decent chance of cert here.
Related Posts (on one page):
- Devices "Useful Primarily for the Stimulation of Human Genital Organs" Going to the Supreme Court?
- Banana split:
- Dildoes Going to the Supreme Court?
- The Fifth Circuit Ban on Sex Devices:
- Dildoes Going to the Supreme Court?
"Why are you here?"
"I raped a woman; got 5 years. You?"
"Very similar. I sold a woman a dildo to pleasure herself. Got 7 years."
As a complete aside, the words "fee" and "pecuniary" are distant cognates at least in their roots. Both have to do with livestock.
Secondly, this reminds me of an episode from the Saga of St. Olaf.....
So presumably, it is unclear whether the statute bans dried and preserved horse phalluses which may have been used as cult objects by some Viking cults, and further that they may have been ritually used in sexually stimulating ways too (the argument here is long and based largely on comparative studies looking at themes in Indo-European law, myth, and ritual involving sex with both live and dead horses).
Maybe the company in question would be better off testing the boundaries of the law in that manner?
I think you want to run this one by marketing.
I could certainly see the Court saying that there's no rational basis for the state to keep you from treating your body like an amusement park, but that the state does have an interest in restricting the sale of what could be considered a medical device.
You're doing it wrong.
I wouldn't think that most vibrators would qualify as medical devices, either, but the definition sections of many statutes often surprise. I also don't think that wheat grown on private land for private consumption is interstate commerce, but apparently I'm wrong about that, too.
Why would a device that accomplishes medical objectives not be considered a medical device?
Did not know such a thing existed until now. Sorry I looked it up.
This is clearly a right "that [is] more important in most of their exercisers' lives." Judges who think not live in glass houses sealed off from the real society they rule.
Love Stuff, the loser in the Alabama Supreme Court case, falls afoul of the law because anyone who sees the store's billboards know it sells sex toys, so the dildos, vibrators, etc. it sells must be sex toys.
If you're teenage boy, is there really anything much more important in your life than manipulating your genitals?
Could the state ban a massaging device designed to be used on the neck or back? And if so, is there any reason to believe that a device suddenly acquires special constitutional protection when its is designed to be rubbed against the user's swimtrunk area?
The medical device argument certainly doesn't flow from the statute's text; medical devices are regulated through different mechanisms entirely.
Also, what would you do when people start presenting prescriptions for vibrators?
If this right to privacy doesn't apply here, I think it's absurd to call it a right to privacy. Then it's really just a right to contraception, abortion, and more recently sodomy.
I'm like the reasoning in Planned Parenthood v. Casey, and I think it should be extended to buying and selling these devices.
That's one of the problems I have with the right to privacy, is that is seems to treat certain sexuallly related activites as having more constitutional protection than non-sexual activities.
Increase the price.
Correct. There's more to freedom than just sex.
Depends upon whether thay have the public option. It will go into your permanent public medical records as well.
Dude, you don't need a device when you're that age and sex.
This is an obscenity statute, basically. I would expect the state to present an argument that such devices meet the same criteria for obscenity or close to it (are patently offensive by contemporary community standards and appeal to the prurient interest), and that they don't pose the free speech issues or the vagueness issues that obscenity does. Therefore if obscene literature can be banned, then sex toys are clearly able to be banned. That's a fairly good argument.
On the other side, one would argue that the courts have repeatedly upheld since obscenity law became somewhat settled, that public morality by itself is not sufficient grounds for a law, whether it is jogging without a shirt or whether it is distributing pornography which features over-18 actresses which appear to be under-18. Only when it is a serious threat to a community's peace may such be regulated in this view. After all, the court's job is to define liberty for all, not morality for some.
A lot of this comes down to questions like where/when the government can legislate morality. For example, as Justice Stevens asked in Lawrence v. Texas' oral arguments, "Can the government ban lying around the family dinner table? That's certainly immoral, isn't it?"
Unfortunately, I think the court would probably mostly uphold the statute as Constitutional, and probably by a very large margin. 7-2, 8-1, maybe even unanimous decision. On the other hand, I could be surprised.
Part of the absurdity is that female versions of such devices "useful primarily for the stimulation of human genital organs" have gone mainstream and are being advertised on prime time TV. Remember that Trojan add showing two women whispering to each other, and an older woman listening in, etc. Yeh - that add could potentially violate this statute.
See, it depends how you frame the issue. It seems fair to me to characterize this issue as "sexual intimacy."
Hypo: Could a state ban all sex positions other than the missionary position as "unnatural"? Could it forbid a certain position (say, doggy-style) as "demeaning to women"?
There's also an equal-protection argument that gets raised (so to speak), as the main effect of the law is to prohibit vibrators, which assist women re: orgasm. The law has much less effect on men's sexual enjoyment.
... OT: Anyone else hear Prof. Kerr on NPR this morning?
The government bans shower heads with an unacceptably strong flowrate.
The government may conceivably ban lightbulbs with an unacceptably poor energy efficiency rate.
The government currently bans vibrators.
All three are used in the privacy of one's own home, and can conceivably impact one's sex life.
Only one appears to have constitutional implications, though I don't know why.
Uncommonly silly laws aren't (shouldn't be) unconsitutional.
The fact that its mainstream doesn't (shouldn't) affect its constitutionality.
The fact that its quaint doesn't (shouldn't) affect its constitutionality.
The existence of a medical issue shouldn't affect its constitutionality.
I am less sanquine than Eugene. I think there are plenty of justices that agree with the commenters (i.e. 'uncommonly silly laws should be stopped. How can I justifiably do so?').
I don't mind vibrators. But I kinda like democracy.
Sk
I think this is a fundamental problem. For many folks, democracy means that the majority has a right to tell them what they can and can't do with their genitals.
Really?
Just wait until you experience the alternatives to democracy.
Not if you've had prostate cancer surgery.
Yahoo: "prostate cancer and vacuum pump" for the minute details. Or "prostate cancer and sex" for more. Remember that over 50% of men will get this disease.
Maybe one of the Justices' will have it before this case gets decided. That'll open his mind.
Like Lawrence, it is a PRIVACY issue. The law should be struck down.
I just don't see any intrinsic value in democracy. The fact that a result was reached democratically means nothing to me. If democracy is being used by superstitious moralizing busy bodies to harass their neighbors, then that subject should be removed from democractic consideration, because democracy is doing a bad job there.
Let Alabama try to ban the sale of Bibles (or, more plausibly, Qur'ans), on the grounds that it's not prohibiting possession, use, or purchase, and see how far that gets 'em.
Compare the Carey decision, where prohibiting sale, but not use, of contraceptives was struck down.
The significance of these cases is that they establish that the same test must be applied to state regulations that burden an individual's right to decide to prevent conception or terminate pregnancy by substantially limiting access to the means of effectuating that decision as is applied to state statutes that prohibit the decision entirely. Both types of regulation
Roe v. Wade, supra at 155. [n5] See also Eisentadt v. Baird, 405 U.S. at 463 (WHITE, J., concurring in result). This is so not because there is an independent fundamental "right of access to contraceptives," but because such access is essential to exercise of the constitutionally protected right of decision in matters of childbearing that is the [p689] underlying foundation of the holdings in Griswold, Eisenstadt v. Baird, and Roe v. Wade.
Presumably at least since Lawrence, the euphemism of "matters of childbearing" can safely be read as "fucking."
There. Fixed that for you.
So you're in favor of making the trains run on time, no matter how it's done? Gotcha. I'll just chalk you up as a supporter of fascism for now.
Libs always get around to mentioning their disdain of democracy eventually. How that's supposed to endear them to the populace, I have no idea.
Well, I have spent time watching coups, truly dysfunctional democracies, and so forth. I agree with you on this point to a limited extent but....
The basic issue is that the ONLY intrinsic value to democracy when it is properly limited (by protecting minority rights) is that it protects us from tyrrany. Democracy is otherwise a bad thing-- democracies tend to be very bad at making good infrastructure-development decisions, or politically difficult decisions like ditching one's currency to go with the US dollar (when they do this, they get thrown out of power).
Really the only interest of this conversation involves the question of how far we should go to remake the world in our image. Our democracy may be problematic in some ways but it really beats the tyrrany that would (and may eventually) replace it.
Where the laws are so blue
If you're caught trading dildos
The Sheriff will be coming after you
The sex-toy laws are interesting because they are such a conspicuous example of laws with no rational basis. See the comment above about anal beads -- if anything, the law is too narrow to make a damn bit of sense.
It's pure tyranny of the majority, with the added wrinkle that the subject is too embarrassing to lots of people for them to express an opinion -- who knows, a majority of Alabamians (and their legislators) might disfavor the ban, but be embarrassed to be on public record as opposing it.
Good point. After the Mississippi Supreme Court upheld the state's sex-toy ban, but before the 5th Circuit (presumably) struck it down, I recall seeing that sex-toy retailers outside the state wouldn't ship to Mississippi.
Indeed, I believe one of those retailers was a party in the Miss. state suit, though I could be misremembering.
I suspect that such retailers won't sell to Alabama addresses now, if not previously.
Of course, Lawrence only dealt with non-commercial activity. This statute only deals with commercial activity. I wonder how that squares?
Of course, as others have pointed out, abortion and contraception are commercial activity. Which only goes to show that the courts privacy jurisprudence makes absolutely no sense whatsoever.
Yes, I think you're seeing a political failure here. People may not want this law but, because of the subject matter, they don't do anything about it.
If you like, it's kind of like how Congress passed a law that we now hear forbids trade in used toys and books in order to protect the children.
There's also certain "marital aides" (possibly my favorite euphemism EVER) designed specifically for men. It looks like a flashlight.
Although I would have to agree with SK's point. What's the rationale for allowing the government to ban toilets that use 2 gallons of water per flush, but prohibiting the government from banning "marital aids"? Different sets of morality?
There's an old joke, about Baptists: Why do you always invite two Baptists to go fishing with you? Because if you only invite one, he'll drink all your beer! The reason that joke is funny is because it recognizes some of the hypocrisy that lies within all of us.
Today, we have this notion that the only way such hypocrisy can be undone is if the court orders it. But in fact society can and does change, significantly, through other mechanisms. The Scarlet Letter had a significant impact on the attitude of this country towards adultery and the social and other punishments imposed on those who violate expected morality.
We won't long survive if the only reason that government as a whole respects individual liberties is because the court tells them to. If the court overturns the law, that relieves the pressure on Alabama to modernize its attitudes. That leaves the status quo forces in place, unchanged, to simply find other ways to limit sexual or other liberties.
If the people who buy such products in Alabama are too embarrassed to step forward and fight for their rights in the legislative process, shame on them! If there's so much money being made selling the stuff, make some campaign contributions, do what everybody else does and buy off a politician or two to stand up for your industry.
As SN noted above, I don't see the people up in arms about this being nearly as up in arms about the EPA banning shower heads with a flow greater than 2.5 gpm. What's the principled difference? Why do I have a privacy interest in buying sex toys, but no privacy interest in having a full-pressure shower?
Remember, almost all of these products are made in China! There's probably lead in them or something. Maybe we need the Consumer Product Safety Agency to test all of them, make sure there are no harmful materials, no sharp edges (ouch!), etc. Maybe there should be a maximum size limitation, too, because you could possibly hurt yourself that way. And of course they should all be LABELED as to origin, so the consumer can know what's in them, etc.
A certain ubiquitous advertiser's "sexual aids" became "sexual aides" sometime in the late 1980s/early 1990s, and then they just gave up and went with "sexual products."
Would that include a "Hustler" magazine?
inquiring minds and all that ...
Perhaps the answer is for corporations to buy ads the week before the election saying, "Candidate X is a "f%$#ing jerk off" ?
Having lived in purely majoritarian democracies where things like "how do we force everyone to be good Muslims despite the fact that our government is officially secular" get brought up all the time, this is why I qualified my statement the way I did.....
Arguably the idea that this is about good old-fashioned (Christian) morals is arguably very comparable.
The problem though is that human sexual culture has ALWAYS been circumscribed by all manner of taboos which, though irrational themselves, tend to serve other social functions, such as ensuring continuity of other cultural aspects. For example, the !Kung won't allow a man to marry any woman who has the same name as his sister (must suck to have a lot of sisters). We can't just move away from it because, for the last 90 years or so, we think we know better.
Regulating the shower head is supposedly to prevent a tragedy of the commons - overuse of a scarce shared resource. If one banned plastic devices, including the ones being discussed, to prevent floating plastic in the oceans, that would be one thing. This law is banning just some plastic things because of their intended use. It's like rules on speech having to be content neutral to pass muster.
(I should note that I'm not a fan of shower and toilet rules; if water is a scarce resource, raise the price)
I think you are on to something here. Interestingly anyone who travels across state line to buy their sex toys is not covered by the statute.....
In many ways the EPA ruling is actually far worse. I think one could handle local water supply issues with local rules. A federal rule is nothing more than an attempt to make it easier for LA to buy water from other states.
Personally I think it is more important to do away with the obscenity exception to the first amendment than worry about sex toy bans.
/shrug
There is no genuine evidence that any of the various other forms of government actually put into practice by human beings are any better at these sorts of decisions. And there is substantial evidence that when other forms of government make mistakes, the "corrective" responses to the resulting problems tend to be much less healthy for the societies they govern.
I suppose it would be nice if we could figure out a way of preventing legislatures, kings and commissars, now and in the future, from promulgating laws viewed as ridiculous by large numbers of people. But even if we could, I suspect government by legislature would still be better than the alternatives over the medium &long haul.
Why is it okay? Because the libs say so. It's all about power. They don't like guns, they don't like people who assert their right to own guns, and they see no problem stomping over a right written in the constitution to bear arms.
The left will enslave everyone, under the assumption that no one will complain if the masses are free to indulge in their sexual hedonism. Orwell was wrong about government power when it comes to sexual relations. It's much easier to enslave someone if they'e permitted to act like an animal. No, you can't own a gun. No, you can't have private medical insurance. No, you can't do that business transaction. No, you can't smoke in bars. No, you can't see where we spend tax dollars. No, that speech is hate speech. But you can screw anyone you want.
Freedom for libs means sex. That's IT. That's the limit of their freedoms. Everything else is subject to their control and mastery.
(now, some will respond: yeah, and freedom for conservatives means doing everything else BUT sex. Of course, that's not true, because at a minumum I'd make such policy arguments via democratic means and votes, instead of through unelected judges).
but,
absent a clear restriction in Alabama law of the significance of "device" to a "mechanical device" and excluding drugs, (as contrasted with the Webster's definition of a device as any "contrivance or an invention serving a particular purpose", like, say, a "mnemonic device") why aren't V1agra* and C1aL1s* banned under the Alabama statute? They're pretty clearly marketed for something which sounds a lot like "stimulating"!
*[whoops; re-written to avoid spam filtration!]
Wowzers.
Apart from sex, are there any freedoms that the left has not tried to control?
When I was a college student in Virginia I was told that this was the case there, as was missionary-position sex for purposes other than procreation.
At any rate, Mill provides the answer: public harm is grounds for [narrow and rational] control; private non-harmful to others amusement is not.
Mostly, I am puzzled as to how the courts are supposed to determine the 'primary purpose' of many devices.
I'm not aware of any cases holding this explicitly, but surely if there is a constitutional right to use something, the government cannot enact a total ban on its commercial production, distribution, and sale. Freedom of the press would not mean much if the state could ban the creation, distribution, and sale of newspapers for profit. The government may be able to regulate the sale (e.g., no more than x% lead in the ink) but a total ban on sale eviscerates the right.
So if there is a constitutional privacy right to use vibrators, dildos, and lube, a ban on their commercial creation, distribution, and sale cannot be constitutional.
I was refering to the fact that there is currently a ban on the activity at issue in Lawrence if said activity is commercial in nature.
Pure majoritarian democracy (not what we have in this country) is a pretty horrid form of government. Believe me, I have witnesses close approximations of it in action. One of the elements of our great republic I am eternally thankful for is the way in which minority viewpoints and rights are protected in ways which are fundamentally undemocratic. I.e. it doesn't MATTER if we all agree that it is horrid to say "Kill the niggers.... we intend to do our part" at a KKK rally--- the government STILL cannot ban that speech. In a pure democracy, the government could ban the speech if 51% of the elected representatives thought it was a good idea.
One of the very interesting areas which turned me off to the idea of democracy (not representation, mind you) as a form of government was watching heresy trials in Indonesia. Individuals can and are sometimes put in prison for engaging in heresy as defined by Catholic, Protestant, Buddhist, Hindu, or Muslim tradition. I have watched Protestant groups petition for heresy charges, and I have seen Muslim groups try to get laws passed to ensure that every Christian school employs an Imam.
But what we have in the US is not a pure democracy (as you have in Indonesia). It is a representative republic, and the sooner we return to those roots ideologically, the better we will be. We don't elect our Supreme Court judges. We don't directly elect our President even. Furthermore we place substantial limits on the sorts of laws our legislative branches can pass.
Take a close look at the human rights records of Indonesia and Malaysia. Malaysia, in addition to undertaking more ambitious economic development programs, has aslo maintained a better human rights record than Indonesia, though neither one has a stellar record in this area. Indonesia is also FAR more democratic than is Malaysia.
Once again, our government structure is great because of anti-democratic features (such as the bill of rights, the prohibition on bills of attainder, etc). On the other hand, Medicare costs are skyrocketing in part because we put the reimbursement decisions in the hands of our most democratic body.
However, this should also give us pause before we embark on efforts to remake the world in our image. The idea that there need to be appropriate checks and balances in government to prevent oppression is the fundamental lesson we should draw from this. Furthermore some level of representation is important.
However, confusing these elements with "democracy" is a dangerous mistake. We are seeing a failing government in Afghanistan because we pushed for democracy rather than representation (so we got a government where local governments have to get presidential approval for their budgets).
Simply put-- we have a great system in this country. We should not try to undermine it with more democracy (say, getting rid of the electoral college). Nor should we try to spread democracy throughout the world. Other countries will arrive at similar governmental models at least in function eventually. We are less capable of handing a good system of government to them than they are of finding it themselves.
Works that way too....
Very few politicians are interested in liberty. The Left wants a Nanny State, and the right wants a Pater Familias state.
Very little room for real liberty on either side, I am afraid. The only solution is to join the NRA, EFF, and ACLU.
I doubt a majority of Alabamans favor this law, but the ones who support it care much more about it than people who oppose it.
I wonder if there's any caselaw on whether or not the anus is a genital for purposes of the statute?
If the current Court holds to the Lawrence analysis, then the question whether the right to possess or use sex toys needn't be addressed, at least as to the immorality issue.
Cheers,
Can we just admit we make it up as we go along and have abandoned all but the barest pretense at sticking to principles?
Doctors grew tired of manually stimulating female patients suffering from hysteria. The vibrator arose as the mechanical replacement of the gynecologist's hand.
A medical device to be sure.
[reference, one of many at, http://www.goarticles.com/cgi-bin/showa.cgi?C=867888}
Not necessarily - you can raise adopted children or stepchildren or nieces and nephews.
And calling decisions about how to educate your children a "consequence of sex" is pretty attenuated, to put it mildly.
I do too, but I don't consider the United States a non-democracy even though virtually everything in our Constitution is a limitation on democracy. A popular vote of the citizens of the United States cannot make it illegal to criticize the government, or make it legal for the President to enact statutes, or to abolish the state of Arizona and incorporate its territory into California. The United States will not cease to be a democracy regardless of the outcome of this case.
I think this says it all:
The majority on the Court will likely conclude that such conclusory moral arguments are adequate except when something more important to most people's lives is at stake (since probably no Justice accepts the libertarian constitutionalist notion that a broadranging liberty to do what one pleases so long as it doesn't directly enough hurt others is itself so important that it should be recognized as a constitutional right).
What an anti-democratic feature that would be!
The definitions suggest that the genitals and anus are distinct. See Ala. Code § 13A-12-200.1(23) (defining "sexual intercourse" to include "genital-genital, oral-genital, anal-genital, or oral-anal" varieties).
Furthermore, the statute provides an affirmative defense if the act is committed "for a bona fide medical, scientific, educational, legislative, judicial, or law enforcement purpose." Ala. Code 13A-12-200.4. So treating sex toys as medical devices would place them outside the statute.
I rather hope that even Alabama does not get to redefine 'genital/genitlia.'
If they grant cert, there's a good chance they'll reverse. The Court will grant cert in such a case if they're inclined to strike the statute down, as they did in Lawrence.
Professor Volokh's analysis is essentially an admission that Lawrence wasn't really a rational-basis analysis, despite the lip service it gave to the rational basis standard, and the reason this case would likely be upheld (in the unlikely event the court granted cert) is that it would be a real rational basis case.
AFAICT, this is a result of dragging the pivot foot. Someone please correct me if I'm wrong, but it seems federal courts have followed this path:
1. Without human beings there'd be no need for law.
2. Without making babies there'd be no human beings.
3. Therefore, without making babies there'd be no need for law.
4. Therefore the right to make babies is a prerequisite to all law, and therefore it must be a fundamental right.
5. Making babies requires fucking.
6. Therefore fucking must be a fundamental right, and all aspects of making babies must be a fundamental right.
7. It would be fatuous for something to be a fundamental right if refraining from it weren't also a fundamental right.
8. Therefore contraception and abortion must be fundamental rights, and forms of fucking that cannot produce babies are also fundamental rights.
9. You can't fuck while you're laughing.
10. Therefore things about fucking that make you laugh to discuss aren't fundamental rights.
11. Dildoes make us laugh.
12. Therefore dildoes aren't fundamental rights.
13. Henry Waxman is a dildo....
That's my bet.
It's a no win situation for SCOTUS
Not factually correct. Too bad you did not know this.
Or they deny cert and let the circuit split stand.
Yeah, cuz te teabaggers are moralists. And I'm confused by the whole "tea-bagger" thing. If the righties are teabaggers, doesn't that make the dems the teabag-ees? I guess that's why they're complaining about having wing-nuts in their faces at town-hall meetings.
Well, you can't do it for long, at least if you're a guy.
This is not, I suspect, a circuit split that's causing the Court much loss of sleep. People in Atlanta, Miami, and Mobile can't buy vibrators in-state. If they thought that were an important enough situation to address, they would be looking to strike down the ban.
The only way they take it is if they were itching to reverse the 5th Circuit and just never got the chance.
No, only Alabama has this statute. If the political will exists in Florida and Georgia to enact something like it, then we can be sure that the federal courts won't overturn it on constitutional grounds.
I think Bob Goodman is exactly right about how the privacy right is defined. It really is about sex and children.
And only about some aspects of sex and children, for example, you can't pay for sex, and you can't not educate your children. In some jurisdictions it's questionable whether or not you have a right to have sex if you're intoxicated.
But all this is just guessing; the court has never defined any criteria for bounding the privacy right, it just upholds some laws and not others based on seemingly arbitrary criteria.
In circuit splits I think there are two conflicting interests that the court has to balance. The first is that the Supreme Court opinions are fairly blunt instruments and so there is a need to GET IT RIGHT on first application or else be stuck clarifying forever (as we see in CFR cases, where we have two conflicting lines of cases which clarify eachother: MCFL and WRTL on one side and Austin and McConnel on the other although nothing really clarifies McConnel because the decision is too hard to make sense of). Consequently the court may feel that it is worth waiting to see how the jurisprudence develops a bit more.
The second is that there is an interest in uniformity in interpretation of the Constitution. This is why circuit splits matter to the court.
Although I think the court, if accepting cert, would side with Alabama, I also think the interests in this case weigh against getting involved at the moment and therefore the court should deny cert, wait, and see what develops.
I don't know if this has ever been addressed, but prior to artificial insemination, would use of surrogate mothers be regulatable as prostitution?
Also, these statutes seem to be directed at controlling the sexual activities of women, no? How many men are using toys to masturbate - yes there are a few toys to use, but the overwhelming majority of things covered by these statutes would be used for female masturbation.
Almost no guy I know uses tools, almost every woman I do does. I am not saying it does or should have an impact on the outcome of the case, but it is my "personal" opinion that this law and others like it are mainly directed at controlling female behavior. I just don't think the government should be making that choice for other people.
Of course, laws against patronizing prostitutes are mainly directed at controling male behavior. Rape too.
einhverfr:
good question, don't know the answer.
Uh, with the rather significant difference that laws against rape address a harm issue, whereas laws aginst dildos do not and those against prostitution are only indirectly harm based [at best].
Besides, given that most prostitutes are women, I'm not sure laws against prostitution are all that clearly directed at mainly controlling men.
You must be really nosey if you actually know this.
The definitions suggest that the genitals and anus are distinct. See Ala. Code § 13A-12-200.1(23) (defining "sexual intercourse" to include "genital-genital, oral-genital, anal-genital, or oral-anal" varieties).
Furthermore, the statute provides an affirmative defense if the act is committed "for a bona fide medical, scientific, educational, legislative, judicial, or law enforcement purpose." Ala. Code 13A-12-200.4. So treating sex toys as medical devices would place them outside the statute.
Moreover, that a true due process question is implicated truly should be indisputable -- the due process clause protects individuals from “excessive fines”. What could be more excessive a fine than taxing a product off the market?
Indeed, rather than advocate for an expansive right to sexual liberty, the two dissenters on the Alabama Supreme Court simply agreed with the Eleventh Circuit that Lawrence: (a) rooted the right to private, consensual sexual intimacy in substantive due process, not equal protection; and (b) the public morality interest in sex toy cases is a pretext for burdening the constitutional right to private, consensual sexual intimacy. Without endorsing a broad-brush libertarian constitutionalist view of the federal Constitution, a majority opinion from the Supreme Court could agree with the Eleventh Circuit by pointing out that the Alabama Supreme Court, as a technical matter, misapplied Lawrence. That opinion could further limit its reach to sex toys, leaving for another day more controversial issues of prostitution, surrogacy, and artificial insemination. One argument that could be made -- and perhaps has not yet been -- is that banning sex toys has a chilling effect on free speech: it might be rather difficult for anorgasmic women to climax watching pornography (or consuming erotic literature) without sex toys. The “regulation of commercial activity” argument fails to work in the case of pornography, which is used as a masturbatory aid in many cases; why one for-sale masturbatory aid would be constitutionally protected from onerous commercial regulation but not another seems inconsistent with any coherent conception of a substantive due process right to sexual autonomy.
Wouldn't that put the sex shops in an even larger world of regulatory hurt?
What is your point? The effect of this law is mostly to restrict devices commonly used by women to masturbate. Other sorts of sexual aids (anal beads, prostate stimulators, handcuffs) are not covered by the statute. That suggests that the point of the law is to restrict female masturbation, which, in addition to being offensive to liberty, is also sexist.
Rape laws, by contrast, are not aimed specifically at preventing rape by men, men just happen to commit more rapes.
This is an important point, and I concur. But, as other commenters have pointed out, this sex toy litigation is not based on Equal Protection. Even if the sexism argument is not made under the Equal Protection Clause, though, if the only rationale for your undue burden on private sexual conduct is sexism, that's got to be a loser under the substantive due process precedents, no?
If that's the way you want to structure your argument ... I have to point out that females are not the exclusive users of dildos. They just happen to use dildos more than men.
Shouldn't people be allowed to decide what matters are important to them and what aren't themselves?
What in the world makes the judiciary more qualified to declare what is important to people than people are?
Shouldn't the people be allowed at least some say in deciding what is important to them? Must they be permitted a say in their own lives only in the unimportant matters?
I think Proffessor Volokh's way of phrasing the matter is all too telling. It speaks of what is important as if it were fact rather than opinion. It simply assumes that a judge's belief about which matters are the important matters represents and should bt taken as representing some sort of truth, rather than simply being an opinion not necessarily any better or worse than anyone else's opinion.
I don't think an equal protection challenge against this law would succeed. I don't think a privacy-based challenge would succeed either, but it's got a much better shot. My complaints about the law being sexist (in addition to being offensive to liberty) are purely about the merits.
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