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Reply #25: I'm posting some of the 11th Circuit decision because it's quite relevant [View All]

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Dunvegan Donating Member (1000+ posts) Send PM | Profile | Ignore Sun Apr-23-06 12:20 AM
Response to Reply #21
25. I'm posting some of the 11th Circuit decision because it's quite relevant
Edited on Sun Apr-23-06 12:23 AM by Dunvegan this discussion.

Being as this is a court decision, we should be able to print more than four paragraphs (a consideration of the "fair use" copyright interpretation.) Mods, let me know if this is correct or not.

11th Circuit Invokes _Bowers v. Hardwick_ to Reject Constitutional Challenge to Alabama Law Against Sex Toys

Any doubt that _Bowers v. Hardwick_, 478 U.S. 186 (1986), would continue to wreak havoc in the 21st century was dispelled in a new decision by the U.S. Court of Appeals for the 11th Circuit, _Williams v. Pryor_, 2000 WL 1513756 (Oct. 12). The court rejected a facial challenge to Alabama's statutory ban on the sale of devices that facilitate genital stimulation, because such devices could be used for constitutionally unprotected sexual pleasure by "homosexuals." The court reversed -- except as applied to four ostensibly heterosexual women -- District Judge C. Lynwood Smith, Jr.'s decision striking down the statute on its face as not rationally related to a legitimate government interest. In an opinion by Circuit Judge Black, the court interpreted _Bowers_ as permitting states to criminalize not only "homosexual sodomy" (the issue according to the Supreme Court's opinion in _Bowers_), but any activity, including masturbation, that might give gay men or lesbians sexual pleasure. In sharp contrast to this expansive reading of _Bowers_, the court dismissed _Romer v. Evans_, 517 U.S. 620 (1996), as having "no bearing" on the issue before it.

Two years ago, Alabama's legislature made it a crime to distribute for profit "any device designed or marketed as useful primarily for stimulation of human genital organs." A first offense is punishable by a fine and up to a year in prison or -- no kidding -- hard labor. Vendors of sexual devices and four women who use such devices joined together to challenge the statute. Plaintiffs alleged that the statute bore no rational relationship to a legitimate government interest and that it infringed -- both facially and as applied -- a fundamental constitutional right to sexual privacy.

Disposing of the first claim meant identifying a legitimate interest and finding a rational connection between the statute and that interest. Judge Black made short work of the first task, finding a legitimate state interest in the "safeguarding of public morality." (Specifically, the state had claimed the statute would discourage "autonomous sex.") The district court had relied on _Romer v. Evans_ in finding the state's goal illegitimate. But in the appeals court's view, _Romer_ dealt only with the unconstitutionality of "imposing an inability to obtain the protection of antidiscrimination laws." This, according to the court, had "no bearing" on the case before it.

The court then -- in perhaps the weakest part of its opinion -- disposed of claims that the statute, because it ignored the health-related uses of genital-stimulating devices (which, the court conceded, are prescribed in sexual and relationship counseling), is not rationally related to the public-morality purpose. It also rejected the district court's finding that the government's interest in reducing "sexual-stimulation . . . unrelated to marriage, procreation or familial relationships" is not rationally served by a statute that also affects possibilities for genital stimulation within marriage. According to Judge Black, "The criminal proscription on the distribution of sexual devices certainly is a rational means for eliminating commerce in the devices, which itself is a rational means for making the acquisition and use of the devices more difficult." Thus, the court explained (both tautologicallly and redundantly), "the statute is not constitutionally irrational under rational basis scrutiny because it is rationally related to the State's legitimate power to protect its view of public morality." (Protecting its view of public morality is about the only thing the court accomplished!) In other words, the state's assertion that "autonomous sex" is immoral can justify any law expected to decrease the frequency (or perhaps the effectiveness) of such behavior.

Black then turned to a separate claim that the statute infringed a fundamental right to sexual privacy (both facially and as applied). The court characterized a series of Supreme Court right-to-privacy decisions, including _Griswold_, _Casey_, and _Roe v. Wade_, as dealing with the right to make decisions about procreation, not sexual conduct. "Extending the constitutional right to privacy to include a broad fundamental right to all sexual autonomy," wrote Black, "is directly precluded by <_Bowers v. Hardwick_>." In other words, "In light of _Bowers_, there would be no violation of any fundamental constitutional right to the extent application of Alabama's statute infringed upon the sexual activity of homosexuals." (By referring to "the sexual activity of homosexuals," rather than "homosexual activity" or "homosexual sodomy," the court apparently meant to include the aforementioned "autonomous sex." That phrase, incidentally, has no apparent precedent in American case law.) In an ironic footnote, the court conceded that 15 years ago it had recognized exactly such a right, in _Hardwick v. Bowers_ (as the case was called at the circuit court level), only to be slapped down by the Supreme Court. (However, in a construction used selectively to distance itself from past holdings it now regrets, the court attributed its earlier decision not to "this court" but to "a panel of this Court.")

Finally, the court turned to the as applied challenge, where it offered heterosexual genital stimulators some hope. The court made reference to the presumed sexual orientation of the four individual plaintiffs, noting that "Betty Faye Haggermaker and Alice Jean Cope are married women who use sexual devices with their husbands. Sherry Taylor-Williams and Jane Doe began using sexual devices in marital intimacy but both are now single." In the court's view, "the as-applied challenge raised by the plaintiffs, married or unmarried, implicate interests in sexual privacy different from those rejected in _Bowers_." (Could the court somehow believe that masturbation is gay when performed by some people, and straight when performed by others?) In any event, the court noted that application of the law to the four female users had been insufficiently explored below (the case was "tried" on the basis of stipulated facts).

It remanded to the district court for further consideration of whether the women had a fundamental right to use sexual devices. The upshot: To buy sexual devices in Alabama, women may now have to prove their heterosexuality, perhaps by marrying the ex-husbands of Doe or Taylor-Williams. Even that possibility, however, could be foreclosed: To find in the women's favor, the district court will have to determine the right in question to be "objectively, deeply rooted in this Nation's history and tradition." What evidence would convince the court that the right to use dildos and vibrators is deeply rooted it didn't say, but there should be no shortage of experts willing to testify on the point. _Fred A. Bernstein_

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  -Why is the RW seeking to criminalize the sale of sex toys? Dunvegan  Apr-22-06 11:42 PM   #0 
  - just the usual poseur piety n/t  blitzen   Apr-22-06 11:43 PM   #1 
  - They are going to have lock up 1/3 of their base. n/t  cantstandbush   Apr-23-06 07:00 PM   #64 
  - Republican Men Can't Compete With Dildos  mhr   Apr-26-06 09:45 AM   #81 
  - Because SEX is BAD!  babylonsister   Apr-22-06 11:43 PM   #2 
  - They're "icky" to people who are terrified that somewhere  Warpy   Apr-22-06 11:44 PM   #3 
  - Follow-up question: This may be very true.  Dunvegan   Apr-23-06 12:02 AM   #17 
     - Other than wanting everybody to be as unhappy as they are  Warpy   Apr-23-06 09:06 AM   #56 
  - They want right wing theocracy in the bedroom  Erika   Apr-22-06 11:45 PM   #4 
  - You can have theocracy in the bedroom and have fun too...  haruka3_2000   Apr-23-06 04:44 PM   #61 
  - You have corrupt morals! Don't you realize that YET?  napi21   Apr-22-06 11:46 PM   #5 
  - Uh, my morals are none of their business  Erika   Apr-22-06 11:47 PM   #6 
  - Ahh, but they belive it IS their business!  napi21   Apr-23-06 12:26 AM   #27 
     - They are so righteous they should save the sinners?  Erika   Apr-23-06 12:32 AM   #30 
  - You mean morels!  ContraBass Black   Apr-23-06 09:08 PM   #69 
  - it is a time waster  pitohui   Apr-22-06 11:51 PM   #7 
  - In the early days of sex toys, weren't they labeled as "marital aids?"  Dunvegan   Apr-22-06 11:52 PM   #8 
  - Nah, they're just sick perverts n/t  Erika   Apr-22-06 11:54 PM   # 
  - Then, they better ban all guns! Too many people get off on'em!  Whoa_Nelly   Apr-22-06 11:52 PM   #9 
  - Perhaps they are having trouble getting laid  havocmom   Apr-22-06 11:54 PM   #10 
  - Are you suggesting a vibrator may be just fine?  Erika   Apr-22-06 11:55 PM   #12 
     - Whatever floats one's boat  havocmom   Apr-22-06 11:58 PM   #14 
        - ...or floats the "little man in the boat"...  Dunvegan   Apr-23-06 12:08 AM   #19 
        - That's what I'm screamin.  darkmaestro019   Apr-23-06 06:53 AM   #50 
  - These laws are, in part at least, directed against the enjoyment  PublicWrath   Apr-22-06 11:54 PM   #11 
  - This makes sense. "Thou shall not make love to graven images...  Dunvegan   Apr-23-06 12:14 AM   #22 
  - take a look at some of the judicial thinking in Alabama (post #21) n/t  PublicWrath   Apr-23-06 12:18 AM   #23 
  - Or taking the vein in the phallus.... ....n/t  PassingFair   Apr-23-06 07:12 PM   #65 
  - What's next...are they going to ban dancing?  TwoSparkles   Apr-22-06 11:57 PM   #13 
  - Gather ye cucumbers while ye may  havocmom   Apr-23-06 12:00 AM   #16 
     - They came for our cucumbers, but I didn't use a cucumber...  TwoSparkles   Apr-23-06 12:08 AM   #18 
     - Try the zucchinis  Erika   Apr-23-06 12:40 AM   #35 
     - Bwhahahaha!  Jade Fox   Apr-23-06 01:20 PM   #59 
  - Controlling sex is the "gateway drug"....  Twitch14   Apr-22-06 11:59 PM   #15 
  - Good answer. Because I not only have a problem with this invasive law...  Dunvegan   Apr-23-06 12:11 AM   #20 
  - ..then it's porn, then it's Playboy, then it's movies, then it's books. nt  FormerRushFan   Apr-23-06 08:52 AM   #55 
  - disturbing peek into the mindset of Alabama's law may be found below  PublicWrath   Apr-23-06 12:13 AM   #21 
  - I'm posting some of the 11th Circuit decision because it's quite relevant  Dunvegan   Apr-23-06 12:20 AM   #25 
     - So this is an anti lesbian bill?  Erika   Apr-23-06 12:28 AM   #28 
     - Yep, that's it. The breakdown:  lwfern   Apr-23-06 12:36 AM   #32 
     - Thanks, I wasn't sure I was allowed to post large sections and I don't  PublicWrath   Apr-23-06 12:34 AM   #31 
     - OK, is THIS part for real?  PassingFair   Apr-23-06 07:15 PM   #66 
  - Need more residents for their privatized prisons I suppose..  Union Thug   Apr-23-06 12:19 AM   #24 
  - Because the thought that...  Tandalayo_Scheisskopf   Apr-23-06 12:23 AM   #26 
  - The Alabama 11th Circuit Court says it's ALL about homosexuality.  Dunvegan   Apr-23-06 12:30 AM   #29 
  - Deleted message  Name removed   Apr-23-06 12:38 AM   #33 
  - no fundamental constitutional right to have lesbian sex....  PublicWrath   Apr-23-06 12:39 AM   #34 
     - The U.S. Constitution neither addressed women's rights nor  Erika   Apr-23-06 12:44 AM   #36 
     - It may very well address women's rights, and soon, --to officially negate  PublicWrath   Apr-23-06 01:02 AM   #40 
     - I suppose a sex toy used in a state where homosexuality is outlawed...  Dunvegan   Apr-23-06 12:45 AM   #37 
        - Yeh, in the South stay with the puritans  Erika   Apr-23-06 12:53 AM   #38 
           - As a Southerner, I can say your characterization of ALL  Clark2008   Apr-23-06 08:12 AM   #53 
  - Shouldn't these states outlaw Viagra? It could be used by  Dunvegan   Apr-23-06 01:00 AM   #39 
  - oh the tales i could tell about insurance companies  madrchsod   Apr-23-06 01:11 AM   #42 
     - O, please tell! I'd love to hear about these men and their  PublicWrath   Apr-23-06 01:24 AM   #43 
     - Are you referencing Federal research grants regarding male sexuality?  Dunvegan   Apr-23-06 02:07 AM   #47 
  - my god people have been using sex toys  madrchsod   Apr-23-06 01:08 AM   #41 
  - cause they want us all to be tightassed dorks like they are. nt  dusmcj   Apr-23-06 01:26 AM   #44 
  - They are running out of fundie ass issues so they war on women,  NVMojo   Apr-23-06 01:34 AM   #45 
  - the men are jealous of their wive's plastic and rubber lovers  leftofthedial   Apr-23-06 01:37 AM   #46 
  - BINGO! Agree totally!  freethought   Apr-23-06 06:14 PM   #63 
  - they don't want their wives finding out they're crappy lovers  w8liftinglady   Apr-24-06 06:29 AM   #74 
  - Making Unwanted Babies Is Godly  mntleo2   Apr-23-06 02:32 AM   #48 
  - Don't you remember, sexual acts purely for pleasure are evil  BuffyTheFundieSlayer   Apr-23-06 03:27 AM   #49 
  - it's their creed  radfringe   Apr-23-06 07:25 AM   #51 
  - All Hail the Mighty Penis (real ones that is)  TorchTheWitch   Apr-23-06 07:51 AM   #52 
  - I believe that the RW is pushing the ban on sex toys to show  ladjf   Apr-23-06 08:28 AM   #54 
  - why to close down all the sex shops of course  mongo   Apr-23-06 11:21 AM   #57 
  - Well, Alabamaians, what do you do about this? Cross the border...  Dunvegan   Apr-23-06 11:31 AM   #58 
  - Because anything fun or pleasurable is EVIL!!!  Rocknrule   Apr-23-06 01:23 PM   #60 
  - This is a perfect example of 'Political Masturbation"  Husb2Sparkly   Apr-23-06 04:50 PM   #62 
  - Ralphi Davenport probably went shopping for a vibrator......  howmad1   Apr-23-06 08:07 PM   #67 
  - These types of wedge issues are a good way to get working class religious  Pushed To The Left   Apr-23-06 09:03 PM   #68 
  - They want to control a woman's sexuality  jerry611   Apr-23-06 09:18 PM   #70 
  - Trying to understand why fundies do ANYTHING  depakid   Apr-23-06 10:08 PM   #71 
  - Many use religion as an excuse for why they don't need to think.  nolabels   Apr-24-06 05:40 AM   #73 
     - having to believe others would lie  depakid   Apr-24-06 07:08 AM   #76 
        - Mental dysfunction ( or illness) is real no doubt  nolabels   Apr-24-06 11:32 AM   #77 
  - They named the GOP task force "SNATCH"  DearAbby   Apr-23-06 11:46 PM   #72 
  - Because the right wing fundies..  sendero   Apr-24-06 07:03 AM   #75 
  - Is this all these people have to do in the South Carolina legislature?  Old Crusoe   Apr-26-06 04:34 AM   #78 
  - Itis because...  Mikimouse   Apr-26-06 06:42 AM   #79 
  - Because men fear that a tool can do it better than they can?  noonwitch   Apr-26-06 09:14 AM   #80 

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