US Court Upholds Alabama Sex Toy Ban

Jay Reeves, Associated Press

BIRMINGHAM, Ala. — A federal appeals court Wednesday upheld a 1998 state law banning the sale of sex toys in Alabama, ruling the Constitution doesn't include a right to sexual privacy.

In a 2-1 decision, a three-judge panel of the 11th U.S. Circuit Court of Appeals said the state has a right to police the sale of devices including electronic vibrators and other products meant to stimulate the sex organs.Overturning a lower court, the panel rejected arguments that the Constitution protects the sale of the toys, which are sometimes recommended by counselors for people who have difficulty attaining sexual gratification.

The American Civil Liberties Union, which represented merchants and users who sued to overturn the law, asked the 11th Circuit to rule that the Constitution included a right to sexual privacy. The court declined, indicating such a decision could lead down other paths.

"If the people of Alabama in time decide that a prohibition on sex toys is misguided, or ineffective, or just plain silly, they can repeal the law and be finished with the matter," the court said. "On the other hand, if we today craft a new fundamental right by which to invalidate the law, we would be bound to give that right full force and effect in all future cases including, for example, those involving adult incest, prostitution, obscenity, and the like."

Attorney General Troy King said the court "has done its duty" in upholding the law.

"We hope this is the end of the matter," he said.

Sherri Williams, an adult novelty retailer who filed the lawsuit with seven other women and two men, called the decision "depressing."

"I'm just very disappointed that courts feel Alabamians don't have the right to purchase adult toys. It's just ludicrous," said Williams, who lives in Florida and owns Pleasures stores in Huntsville and Decatur. "I intend to pursue this."

U.S. District Judge Lynwood Smith Jr. of Huntsville has twice ruled against the state law, deciding in 2002 that the sex toy ban violated the constitutional right to privacy. The state appealed both times and won.

Writing for himself and Judge James C. Hill, U.S. Circuit Judge Stanley F. Birch Jr. said the lower court overstepped its authority in deciding the Constitution included a right to "sexual privacy." The state law bans only the sale of sex toys, not their possession, the court said, and it doesn't regulate other items including condoms or virility drugs.

"The Alabama statute proscribes a relatively narrow bandwidth of activity," Birch wrote.

Circuit Judge Rosemary Barkett disagreed, writing that the decision conflicted with a Supreme Court decision last year that overturned a Texas law against sodomy. In that case, the court found, consenting adults had a right to do as they please in bed.

Barkett said the Alabama decision was based on the "erroneous foundation" that adults don't have a right to consensual sexual intimacy and that private acts can be made a crime in the name of promoting "public morality."

"This case is not, as the majority's demeaning and dismissive analysis suggests, about sex or about sexual devices. It is about the tradition of American citizens from the inception of our democracy to value the constitutionally protected right to be left alone in the privacy of their bedrooms and personal relationships," Barkett wrote in her dissent.