Ultra-Conservative Ruling On Sex Toys: Does Government Belong In Our Bedrooms?

11th Circuit's Abuzz With Sex Toy Litigation

I know that buying a "phallic" device is illegal in Texas, but I didn't think I would ever see a federal court determining what toys or sensory stimulation a sexual being could or could not use in the privacy of a home, bedroom or hotel room. Are Americans really this concerned over what someone does to their own bodies or with another consenting adult?

If you're considering buying any new sex toys, you better buy them now before the prices go skyrocketing, or the market is driven underground and there are new avenues for organized crime to exploit. Then playing with sex toys will become a RICO matter.

History fails to attribute to patriot Patrick Henry the statement "Give me sex toys or give me death," so therefore it's not surprising that the legal battle continues over whether the right to obtain and use appliances intended for sexual gratification is included within the liberty protected under the U.S. Constitution.

A number of states still have laws that make it a crime to sell or distribute sex toys, and over the past several years there has been a notable amount of litigation throughout many southern states concerning whether these laws remain constitutional in the aftermath of the U.S. Supreme Court's ruling in Lawrence v. Texas, which holds that states cannot outlaw homosexual sodomy between consenting adults.

The 11th U.S. Circuit Court of Appeals -- the federal appellate court that hears appeals from Alabama, Florida and Georgia -- has in recent years become a veritable hub for sex toy–related litigation. In July 2004, the 11th Circuit examined whether an Alabama law prohibiting the sale of sex toys violated a purported constitutional right to sexual privacy. By a vote of 2–1, the court rejected the challenge to the Alabama law.

The conclusion of the majority opinion in Williams v. Attorney General of Alabama explains: "we hold that the district court committed reversible error in concluding that the Due Process Clause 'encompass[es] a right to use sexual devices like ... vibrators, dildos, anal beads, and artificial vaginas.'" Yet instead of terminating the case, the 11th Circuit remanded the lawsuit so that an Alabama–based federal district court could consider whether public morality continued to provide a rational basis for the law in the aftermath of Lawrence v. Texas. Late last month, in a 56–page ruling, the U.S. District Court for the Northern District of Alabama entered final judgment in favor of Alabama, rejecting all challenges to the law. The time for appeal from that ruling has not yet expired, so it is possible that this case could make yet another trip to the 11th Circuit.