The Alabama Sex Toy Case

Ken AshfordConstitution, Courts/Law, Sex/Morality/Family Values1 Comment

Well, the Eleventh Circuit has ruled (for the fourth and probably last time) and the statute has been upheld: it is now illegal to sell sex toys in Alabama.  (Guns, however?  No problem).

All tittering aside, the legal issues in this case were complex.  In the end, however, I think the Eleventh Circuit got it wrong.

Let me explain.

In the U.S. Supreme Court case of Lawrence v. Texas a few years ago, the Supreme Court struck down a Texas statute that criminalized private sexual conduct (specifically, homosexuality).  Simply put, a state must have a "legitimate state interest" before it can regulate how people conduct themselves in a private sexual context.  That’s the bar: a "legitimate state interest".  Thus, states cannot prohibit adults from engaging in homosexual behavior in the privacy of their own homes — because the government has no legitimate interest in consensual sexual practices.  Conversely, there IS a legitimate state interest in outlawing, say, child molestation, even if those acts are conducted in private.

The Alabama legislature passed a law banning the sale of sexual toys.  The ACLU and other organizations challenged the law, citing Lawrence.  "Look", they said. "The Supreme Court in Lawrence said that a state must have a legitimate state interest before it can regulate or criminalize private sexual conduct.  Therefore, Alabama cannot ban sexual toys.

That argument ultimately failed with the Eleventh Circuit.  And here’s their reasoning: the sale of sexual toys (according to the court) is not a private thing.  It is public commerce.  And although the state has no right or interest in regulating private morality (see Lawrence), the state has every right to regulate public commerce and public morality, just as they can regulate strip clubs, etc.

So says the Eleventh Circuit anyway.  However, I disagree with their interpretation of Lawrence.  In my view, Lawrence stated that states cannot regulate public morality either, unless there is a compelling (as opposed to "rational") government interest, and the law in question is narrowly tailored to address that interest.  (This sets the bar much higher than the "rational basis" standard).

But leaving the test aside, the court held that Alabama can prohibit the sale of sexual toys.  Under the holding, you can still USE them (or give them away for free), but the ban on sales is upheld.

This strikes me as rather spurious reasoning, even under the "rational basis" test.  I, of course, have no inside knowledge, but it seems to me that the Alabama legislature’s ban on the sale of sex toys was merely an outgrowth of their moral opposition to the private use of sex toys.  Why would you ban the sale of something for which you, in theory anyway, have no moral objection to the use?  This is consistent with other laws: We ban the sales of certain guns as a way to curb the USE of certain guns; we ban the sale of certain drugs as a way to curb the USE of certain drugs. 

Similarly, the Alabama legislature has attempted to curb the private use of sex toys, by doing an end run and prohibiting the public sale.  And they (for now anyway) have gotten away with it.  No matter how you slice it — and whatever your personal views on sex toys — we should be concerned about this trend to regulate private morality.  It’s not a good thing; it’s unconstitutional, and it’s dangerous.

Because you know what’s next?  Birth control….

RELATED:  The State of Tennessee is considering passing a law requiring the issuance of a death certificate for aborted fetuses, as a way of identifying (and by extension, intimidating) women who have had abortions.