Outside the Beltway

Supreme Court Passes on Alabama Sex Toys Case

James Joyner · Tuesday, February 22, 2005 · 7 comments

Court won’t rule on banned sex toys (CNN-Reuters)

The U.S. Supreme Court rejected on Tuesday a constitutional challenge to an Alabama law that makes it a crime to sell sex toys. The high court refused to hear an appeal by a group of individuals who regularly use sexual devices and by two vendors who argued the case raised important issues about the scope of the constitutional right to sexual privacy.

The law prohibited the distribution of “any device designed or marketed as useful primarily for the stimulation of human genital organs.” First-time violators can face a fine of up to $10,000 and as much as one year in jail. The law, adopted in 1998, allowed the sale of ordinary vibrators and body massagers that are not designed or marketed primarily as sexual aids. It exempted sales of sexual devices “for a bona fide medical, scientific, educational, legislative, judicial or law enforcement purpose.” Georgia and Texas are the only other states that restrict the distribution of sexual devices, according to the court record in the case.

Attorneys for the American Civil Liberties Union, representing those who challenged the law, argued that private, consensual sexual conduct among adults is constitutionally protected and beyond the reach of government regulation. They said the Supreme Court’s decision in 2003 striking down a Texas sodomy law also created a fundamental, constitutional due process right to sexual privacy. “The evidence shows that this case is not about novelty items, naughty toys or obscene matter. It is a case about human sexuality and extremely intimate acts,” the attorneys said.

They said Alabama has never explained “why sales of performance enhancing drugs like Viagra, Cialis and Levitra and even ribbed condoms are not similarly prohibited.” The attorneys said the state did not contest the evidence that about 20 percent of all American women use a vibrator and at least 10 percent of sexually active adults use vibrators in their regular sex life. A federal judge ruled against the state and found a constitutional “right to use sexual devices like … vibrators, dildos, anal beads and artificial vaginas.”

Somehow, I just can’t see the Founding Fathers sitting around discussing anal beads and artificial vaginas. (Well, maybe Benjamin Franklin.) Under any literal reading, the several States have every right under the Constitution to regulate these devices, so long as they aren’t involved in interstate commerce. There are 47 other states where people can use such appurtenances, um, unmolested.

Still, this ruling is hard to reconcile with Lawrence, let alone Roe vs. Wade. The Court has ruled, more or less consistently, for thirty plus years that private sexual conduct is outside the purview of the law, falling in various emanations from various penumbras of the Bill of Rights via the 14th Amendment. This right even extends to killing one’s non-viable fetus during the first two trimesters, give or take. Yet, there aren’t even four Justices on the Supreme Court who considered this case worth hearing?

So, putting Lawrence and this non-ruling together, we have the strange situation where the state of Texas may not interfere with two men or two women having sex with one another but it remains perfectly free to regulate sex between a woman and her vibrator?