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Devices "Useful Primarily for the Stimulation of Human Genital Organs" Going to the Supreme Court?

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):

  1. Devices "Useful Primarily for the Stimulation of Human Genital Organs" Going to the Supreme Court?
  2. Banana split:
  3. Dildoes Going to the Supreme Court?
  4. The Fifth Circuit Ban on Sex Devices:
  5. Dildoes Going to the Supreme Court?
Off Kilter (mail):
I can imagine the prison conversation:

"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."
9.15.2009 12:52pm
einhverfr (mail) (www):
Two complete asides:
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?
9.15.2009 12:53pm
Bama 1L:
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.
9.15.2009 12:55pm
ShelbyC:
So which section of the statutes are these laws found in?
9.15.2009 12:57pm
rick.felt:
Does the analysis depend at all on whether the statute is a prohibition on possession of such a device (trying to avoid terms that would trigger the spam filter), or its sale?

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.
9.15.2009 12:59pm
yankee (mail):
So vibrators and lube are banned, but anal beads, handcuffs, and whips are OK? The prudes of Alabama are very strange.
9.15.2009 1:02pm
ShelbyC:

...of what could be considered a medical device.


You're doing it wrong.
9.15.2009 1:02pm
einhverfr (mail) (www):
I also note that the statute doesn't criminalize "make your own dild0 kits" since it criminalizes production IN EXCHANGE for anything of monetary value. Something which is primarily designed to PRODUCE something which is primarily designed for sexual stimulation doesn't seem to qualify....
9.15.2009 1:05pm
rick.felt:
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.
9.15.2009 1:08pm
ASlyJD (mail):
On the contrary, proper use of such devices can promote muscle tone, reduce or prevent incontinence, and create better mental health.

Why would a device that accomplishes medical objectives not be considered a medical device?
9.15.2009 1:09pm
Bob from Ohio (mail):
"anal beads"

Did not know such a thing existed until now. Sorry I looked it up.
9.15.2009 1:11pm
Order of the Coif:
Given the ASTRONOMICAL sales figures for both pornographic videos and genital stimulation devices, I'd say the American people have voted in favor of both. Money talks and judicial B.S. walks. For example, compare sex device sales to literature sales.

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.
9.15.2009 1:14pm
Bama 1L:
The law doesn't ban giving away dildos (which has been done as a protest) or selling vibrators as body massagers.

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.
9.15.2009 1:15pm
rick.felt:
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.

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?
9.15.2009 1:15pm
Bama 1L:
To my knowledge, the medical device argument has never been made in defense of the Alabama statute. If anything, it's an argument for allowing their sale, since these items have purposes other than offending public morality.

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?
9.15.2009 1:20pm
LarryR (mail):
I wish they would hear this case. I'd love to see some opinions discussing why a right to privacy that covers contraception doesn't apply to buying these devices that will be used in private.

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.
9.15.2009 1:22pm
ShelbyC:

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?


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.
9.15.2009 1:22pm
byomtov (mail):
I bet a whole lot of people in Alabama who support this law would tell you they hate having the government tell them what they can and can't do.
9.15.2009 1:25pm
Bama 1L:
Every single instance of the privacy right I can think of has to do with sex and its consequences (raising children) or their avoidance.
9.15.2009 1:26pm
DennisN (mail):
Also, what would you do when people start presenting prescriptions for vibrators?


Increase the price.
9.15.2009 1:26pm
ShelbyC:

Every single instance of the privacy right I can think of has to do with sex and its consequences (raising children) or their avoidance.


Correct. There's more to freedom than just sex.
9.15.2009 1:29pm
Patent Lawyer (mail):
In support of the medical device point, I note that Judge Posner considered medical devices to be analogous art in considering an obviousness challenge to a patent on Pyrex dildoes. See Ritchie v. Vast Resources, Inc., No. 2008-1528 (Fed. Cir. 2009). One of the more fun patent cases I've read recently...
9.15.2009 1:39pm
Toby:
Also, what would you do when people start presenting prescriptions for vibrators?

Depends upon whether thay have the public option. It will go into your permanent public medical records as well.
9.15.2009 1:48pm
wm13:
If you're teenage boy, is there really anything much more important in your life than manipulating your genitals?

Dude, you don't need a device when you're that age and sex.
9.15.2009 1:53pm
einhverfr (mail) (www):
These sort of cases are interesting, I suppose after thinking it through I agree with EV on the odds of winning before the Supreme Court.

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.
9.15.2009 1:57pm
Arkady:
With TV rife with boner ads, I find the Alabama law quaint.
9.15.2009 2:19pm
Smooth, Like a Rhapsody (mail):
"This is an uncommonly silly law."
9.15.2009 2:21pm
Bruce Hayden (mail):
I would think that what one does to stimulate one's own body in the privacy of one's house would impact a privacy issue much more directly than even Lawrence or Roe.

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.
9.15.2009 2:25pm
Anderson (mail):
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

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?
9.15.2009 2:31pm
sk (mail):
Why is this a privacy issue, or an obscenity issue, or a sex issue?

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
9.15.2009 2:35pm
ShelbyC:

I don't mind vibrators. But I kinda like democracy.


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.
9.15.2009 2:53pm
Repeal 16-17 (mail):
It appears Sonya Sotomayor became a Justice at just the right time. :)
9.15.2009 2:57pm
Guest14:
I don't mind vibrators. But I kinda like democracy.
I see little value in democracy, if this is what it's going to be used for.
9.15.2009 3:10pm
c.gray (mail):

I see little value in democracy, if this is what it's going to be used for.


Really?

Just wait until you experience the alternatives to democracy.
9.15.2009 3:18pm
alabamyan (mail):
Please keep in mind that this is only a ban on offering them for sale. There is no ban on possession or purchasing. Many of the comments here are speaking of the possession and purchasing of the items. That is not illegal. It is only preventing the sale. All this law does is force people to legally buy them from out of state, via the internet, etc. Of all the unholy laws in Alabama this one is considerably down the list, below the State Monopoly on Alcohol sales, the state mandated price fixing of gasoline sales, to name two.
9.15.2009 3:18pm
Order of the Coif:
The law has much less effect on men's sexual enjoyment.


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.
9.15.2009 3:20pm
post-New Deal:
I think the post-New Deal dilemma for these kinds of cases is not that democracy means that the majority has a right to tell people what they can do with their genitals, but that democracy has a right to make any and all commercial regulations. The "privacy" cases are partially about carving out ad hoc exceptions to the scope of commercial regulatory authority of the state -- the government can regulate or prohibit the sale of goods, except contraceptives; the government can regulate or prohibit services, except abortion services. You can do what you want to your genitals. But if you want to buy something in order to do something to your genitals, then you've got a problem. But even traditional police powers analysis would give the state some room to maneuver on regulating commercial transactions.
9.15.2009 3:23pm
Guest14:
Just wait until you experience the alternatives to democracy.
I don't understand this remark. I see value in democracy if it's being used for other things. I didn't say "scrap democracy, I don't ever want to see any exercise of political power by the people again!"

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.
9.15.2009 3:25pm
Anderson (mail):
Please keep in mind that this is only a ban on offering them for sale. There is no ban on possession or purchasing.

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

may be justified only by a "compelling state interest" . . . , and . . . must be narrowly drawn to express only the legitimate state interests at stake.
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."
9.15.2009 3:27pm
Anderson (mail):
Excellent points, Coif -- thanks!
9.15.2009 3:29pm
gullyborg (mail) (www):
"I bet a whole lot of people in Alabama who support this law would tell you they hate having the FEDERAL government tell them what they can and can't do."

There. Fixed that for you.
9.15.2009 3:32pm
DangerMouse:
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.

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.
9.15.2009 3:37pm
Nunzio:
Congress should exercise its power to regulate interstate commerce and invalidate these laws. The economy needs to be stimulated.
9.15.2009 3:43pm
einhverfr (mail) (www):
Guest14:

I don't understand this remark. I see value in democracy if it's being used for other things. I didn't say "scrap democracy, I don't ever want to see any exercise of political power by the people again!"

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.


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.
9.15.2009 3:47pm
Bruce Hayden (mail):
Congress should exercise its power to regulate interstate commerce and invalidate these laws. The economy needs to be stimulated.
No expert on Commerce law here, but the state obviously cannot regulate the interstate commerce in such devices, they are being routinely advertised and sold in Interstate commerce (see the Trojan ad that I linked to), and this would seem to affect interstate commerce, at least indirectly both by pushing transactions to the web, and for all the devices made elsewhere and shipped into state for sale.
9.15.2009 3:58pm
Tom952 (mail):
Sweet Home Alabama
Where the laws are so blue
If you're caught trading dildos
The Sheriff will be coming after you
9.15.2009 3:58pm
Anderson (mail):
Einhverfr is right, but the tyranny of the majority has been recognized as a danger from the time that democracy came into practice in modern times -- see Mill and Tocqueville.

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.
9.15.2009 4:00pm
LarryA (mail) (www):
Why would a device that accomplishes medical objectives not be considered a medical device?
Why would a device that “can promote muscle tone, reduce or prevent incontinence, and create better mental health” be prohibited? Other than the “if it’s fun it’s sinful” argument, that is.
Given the ASTRONOMICAL sales figures for both pornographic videos and genital stimulation devices, I'd say the American people have voted in favor of both.
It does sort of blow apart the “contrary to community standards” test.
Congress should exercise its power to regulate interstate commerce and invalidate these laws. The economy needs to be stimulated.
That cure is worse than the disease.
9.15.2009 4:01pm
Anderson (mail):
but the state obviously cannot regulate the interstate commerce in such devices

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.
9.15.2009 4:03pm
ShelbyC:

Like Lawrence, it is a PRIVACY issue. The law should be struck down.


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.
9.15.2009 4:06pm
Bama 1L:
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.

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.
9.15.2009 4:09pm
egd:
Anderson:

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.

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?
9.15.2009 4:11pm
PatHMV (mail) (www):
Striking down this law would indeed be bad for democracy in this country. The legislature should have to live with the consequences of their actions, and be held accountable for them. Undoubtedly there are many legislators who think the law is foolish, and know quite well that many of their constituents buy things from those stores, or from the internet. He can more or less safely vote for the law, knowing that the court is likely to strike it down. "Hey, don't blame me, he says, I voted against it! Blame that nasty evil court!"

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?
9.15.2009 4:18pm
PatHMV (mail) (www):
Bama 1L... excellent point! A constitutional right to buy sex toys, but no constitutional right to buy children's books made before 1985. How does one arrive at that?

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.
9.15.2009 4:21pm
John Burgess (mail) (www):
Bama 1L: When I was in university in Massachusetts, you actually needed a prescription to buy condoms legally. It was a while back, but the electric light had been invented. Even TV!
9.15.2009 4:32pm
Anderson (mail):
There's also certain "marital aides" (possibly my favorite euphemism EVER)

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."
9.15.2009 4:38pm
Angst (mail):
"... any device designed or marketed as useful primarily for the stimulation of human genital organs for any thing of pecuniary value."

Would that include a "Hustler" magazine?

inquiring minds and all that ...
9.15.2009 4:45pm
Simone Legrange (mail):
That's one of the problems I have with the right to privacy, is that is seems to treat certain sexually related activities as having more constitutional protection than non-sexual activities.

Perhaps the answer is for corporations to buy ads the week before the election saying, "Candidate X is a "f%$#ing jerk off" ?
9.15.2009 4:48pm
einhverfr (mail) (www):
Anderson:

Einhverfr is right, but the tyranny of the majority has been recognized as a danger from the time that democracy came into practice in modern times -- see Mill and Tocqueville.


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.
9.15.2009 4:51pm
ShelbyC:
@Simone Legrange, could you perhaps explain your point a little more clearly?
9.15.2009 4:52pm
pintler:

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?


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)
9.15.2009 4:58pm
einhverfr (mail) (www):
PatHMV:

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.


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.....


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?


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.
9.15.2009 4:59pm
Harvey Mosley (mail):
Why is it okay for a state to ban the possession of ammunition magazines that have a capacity of more than ten rounds, but not sex toys? Why should an unenumerated right be given greater protection than an enumerated one?
9.15.2009 5:01pm
Anderson (mail):
After that last terrible incident where 22 kids at a local school were dildoed to death, Harvey, I'm completely in agreement with you.
9.15.2009 5:04pm
c.gray (mail):

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).



/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.
9.15.2009 5:11pm
DangerMouse:
Why is it okay for a state to ban the possession of ammunition magazines that have a capacity of more than ten rounds, but not sex toys? Why should an unenumerated right be given greater protection than an enumerated one?

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).
9.15.2009 5:14pm
Richard Gould-Saltman (mail):
Just outa curiosity, I know that for Federal law purposes, a "medical device" is not the same as a "drug",

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!]
9.15.2009 5:16pm
Anderson (mail):
The left will enslave everyone

Wowzers.
9.15.2009 5:16pm
DangerMouse:
Anderson,

Apart from sex, are there any freedoms that the left has not tried to control?
9.15.2009 5:56pm
Ned:

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"?



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.
9.15.2009 6:00pm
ChrisTS (mail):
I thought it was 'sk' who raised the questions about showers, etc.

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.
9.15.2009 6:12pm
yankee (mail):
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.

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.
9.15.2009 6:16pm
ShelbyC:

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.


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.
9.15.2009 6:22pm
yankee (mail):
Mostly, I am puzzled as to how the courts are supposed to determine the 'primary purpose' of many devices.
So am I. How are the courts to decide if a Hitachi Magic Wand's "primary purpose" is genital stimulation or (as the manufacturer publicly asserts) back massage?
9.15.2009 6:25pm
einhverfr (mail) (www):
c.gray:

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.
9.15.2009 6:28pm
yankee (mail):
And on the same note, how are the courts to decide if a given dildo's "primary purpose" is vaginal stimulation or anal stimulation, if it can be used for either?
9.15.2009 6:31pm
einhverfr (mail) (www):
Dangermouse:

Apart from sex, are there any freedoms that the left right has not tried to control?


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.
9.15.2009 6:36pm
yankee (mail):
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.

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.
9.15.2009 6:37pm
ShelbyC:

And on the same note, how are the courts to decide if a given dildo's "primary purpose" is vaginal stimulation or anal stimulation, if it can be used for either?


I wonder if there's any caselaw on whether or not the anus is a genital for purposes of the statute?
9.15.2009 6:54pm
Guest101:
Lawrence never expressly said that sex or intimacy or anything else is a fundamental right under substantive due process. As Scalia pointed out in dissent, the majority didn't undertake the traditional substantive due process analysis at all-- it never determined whether the right at issue was fundamental or what level of scrutiny applied. Instead, it found that the state failed to assert even a legitimate interest in criminalizing gay sex, adopting Justice Stevens's statement in his Bowers dissent that "the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice." 539 U.S. at 577(quoting Bowers, 478 U.S. at 216 (Stevens, J., dissenting)).

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.
9.15.2009 6:55pm
zuch (mail) (www):
Prof. Volokh:
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.
You know, there go by days and days when I don't feel the need to exercise my right to free speech, and for many others, maybe even a majority, they can go a whole lifetime without feeling the need to loudly proclaim what the gummint disfavours. You know who gets the court cases ... and the protection ... in First Amendment free speech cases? The Klan. And Johnson. Let me know when they become mainstream.

Cheers,
9.15.2009 7:11pm
Guest101:
Sorry, in rereading my comment above I realize I left out to key words of the final sentence. Should read:


If the current Court holds to the Lawrence analysis, then the question whether the right to possess or use sex toys is fundamental needn't be addressed, at least as to the immorality issue.
9.15.2009 7:29pm
David Schwartz (mail):
The really points out the off-the-rails absurdity of our justice system. Using drugs in private, yep, we can prohibit it. Selling high flush volume toilets for private use in home bathrooms, yep, we can prohibit it. Selling contraception for private use in the home, nope, that violates some right.

Can we just admit we make it up as we go along and have abandoned all but the barest pretense at sticking to principles?
9.15.2009 8:16pm
mic deniro (mail):
It's late in the day, but I'm surprised that no one brought up the origin of vibrators as medical devices.

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}
9.15.2009 8:27pm
Martha:
Vibrators were originally invented as medical devices. This book outlines the history. You can see an "antique vibrator museum" online or in SF.
9.15.2009 8:44pm
Cornellian (mail):
Every single instance of the privacy right I can think of has to do with sex and its consequences (raising children)

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.
9.15.2009 8:55pm
Cornellian (mail):
I don't mind vibrators. But I kinda like democracy.

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.
9.15.2009 8:59pm
SuperSkeptic:
Great many good comments, I particularly appreciate the comments on democracy and the post-new Deal comment

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!
9.15.2009 9:09pm
Bama 1L:
I wonder if there's any caselaw on whether or not the anus is a genital for purposes of the statute?

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.
9.15.2009 9:52pm
ChrisTS (mail):
Shelby, yankee, and Guest14:

I rather hope that even Alabama does not get to redefine 'genital/genitlia.'
9.15.2009 10:09pm
ReaderY:
I think they'll deny cert. It's what they do in appeals from state supreme court decisions, pro or con, in these types of cases. They did it in dozens of sodomy cases leading up to Bowers v. Hardwick and Lawrence v. Texas. They've done it in numerous other morals-oriented cases as well. They simply won't disturb a state supreme court's decision on the subject. If they want to issue an opinion upholding the statute, they'll wait until a federal court and a state disagree, just as they did in Bowers.

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.
9.15.2009 10:30pm
Bob Goodman (mail) (www):
I think the post-New Deal dilemma for these kinds of cases is not that democracy means that the majority has a right to tell people what they can do with their genitals, but that democracy has a right to make any and all commercial regulations. The "privacy" cases are partially about carving out ad hoc exceptions to the scope of commercial regulatory authority of the state -- the government can regulate or prohibit the sale of goods, except contraceptives; the government can regulate or prohibit services, except abortion services.


Presumably at least since Lawrence, the euphemism of "matters of childbearing" can safely be read as "fucking."

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....
9.15.2009 10:47pm
Anderson (mail):
I think they'll deny cert.

That's my bet.
9.15.2009 11:21pm
Randy R. (mail):
I agree. If they take the case, they must either uphold the law, and be the laughing stock of the country, or strike it down, thereby angering the teabaggers and various other moralists.

It's a no win situation for SCOTUS
9.16.2009 12:24am
Tom952 (mail):
9. You can't fuck while you're laughing.

Not factually correct. Too bad you did not know this.
9.16.2009 1:04am
Oren:

I agree. If they take the case, they must either uphold the law, and be the laughing stock of the country, or strike it down, thereby angering the teabaggers and various other moralists.

Or they deny cert and let the circuit split stand.
9.16.2009 6:01am
ShelbyC:

I agree. If they take the case, they must either uphold the law, and be the laughing stock of the country, or strike it down, thereby angering the teabaggers and various other moralists.


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.


9. You can't fuck while you're laughing.

Not factually correct. Too bad you did not know this.


Well, you can't do it for long, at least if you're a guy.
9.16.2009 9:21am
Anderson (mail):
Or they deny cert and let the circuit split stand.

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.
9.16.2009 9:28am
Bama 1L:
People in Atlanta, Miami, and Mobile can't buy vibrators in-state.

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.
9.16.2009 10:13am
ShelbyC:

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.
9.16.2009 11:12am
einhverfr (mail) (www):
ReaderY:

It's what they do in appeals from state supreme court decisions, pro or con, in these types of cases. They did it in dozens of sodomy cases leading up to Bowers v. Hardwick and Lawrence v. Texas. They've done it in numerous other morals-oriented cases as well. They simply won't disturb a state supreme court's decision on the subject.


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.
9.16.2009 1:41pm
einhverfr (mail) (www):
ShelbyC:

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.


I don't know if this has ever been addressed, but prior to artificial insemination, would use of surrogate mothers be regulatable as prostitution?
9.16.2009 1:42pm
wht (mail):
What about ribbed condoms? If the answer that the primary purpose of condoms is actually birth control - than just make that argument for every dildo sold. Using a dildo is better at preventing pregnancy anyway.

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.
9.16.2009 1:55pm
ShelbyC:
whit:

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:

I don't know if this has ever been addressed, but prior to artificial insemination, would use of surrogate mothers be regulatable as prostitution?

good question, don't know the answer.
9.16.2009 2:09pm
ChrisTS (mail):
Of course, laws against patronizing prostitutes are mainly directed at controling male behavior. Rape too

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.
9.16.2009 4:27pm
Tom952 (mail):
Almost no guy I know uses tools, almost every woman I do does.

You must be really nosey if you actually know this.
9.16.2009 4:30pm
Sex Toys Expert (mail) (www):
I wonder if there's any caselaw on whether or not the anus is a genital for purposes of the statute?

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.
9.16.2009 4:52pm
Eizenstadt (mail):
Would the argument in favor of banning sex toys make any sense were it applied to contraceptives? (No. See Griswold.) Would the argument in favor of banning sex toys make any sense were it applied to lubrication (e.g., Astro-Glide)? (No.) Would the argument in favor of sex toys make any sense were it applied to naughty nurse costumes or a gorilla suit? (No.) Handcuffs? (No.) A suspension harness? (No.) What justifies singling out dildos? Why is there protection for every other item in Babes in Toyland, but not a dildo? It seems to be the best explanation of this case is that if Lawrence is Griswold, then this case is Eizenstadt v. Baird.

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.
9.16.2009 8:23pm
Oren:

So treating sex toys as medical devices would place them outside the statute.

Wouldn't that put the sex shops in an even larger world of regulatory hurt?
9.16.2009 8:40pm
yankee (mail):
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.

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.
9.16.2009 10:06pm
Jack Smith (mail):

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.



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?
9.16.2009 11:41pm
Anatid:

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.


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.
9.17.2009 12:20am
ReaderY:
What business is it of courts to dictate to people what aspects of their lives shall be important to them?

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.
9.17.2009 12:24am
Oakenheart (mail):
Hm. Why hasnt some brilliant marketing guy done a combo deal - "Buy a bottle of lube, get a FREE dildo!" Seems like an effective dodge since the dildo is "FREE" ;)
9.17.2009 2:41pm
Tom952 (mail):
Or, recycle the old a-condom-is-not-birth-control dodge by printing on the package "For approved medical use only.".
9.17.2009 4:47pm
yankee (mail):
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?

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.
9.17.2009 5:50pm
Tom952 (mail):
Surely the right to buy these things is guaranteed by he "Pursuit of Happiness" clause, isnt't it?
9.18.2009 6:03pm

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