Category Archives: Gender, Sex, & Sexuality

Back to the Closet! – Alabama’s Seemingly Antiquated Anti-Obscenity Enforcement Act and the Sex Toy Circuit Split in the Shadow of the Lawrence Decision

Back to the Closet! – Alabama’s Seemingly Antiquated Anti-Obscenity Enforcement Act and the Sex Toy Circuit Split in the Shadow of the Lawrence Decision

By: John Gamble

Alabama’s Anti–Obscenity Enforcement Act prohibits, among other things, the commercial distribution of “any device designed or marketed as useful primarily for the stimulation of human genital organs for any thing of pecuniary value.”[1] However, the statute exempts sales of sexual devices “for a bona fide medical, scientific, educational, legislative, judicial, or law enforcement purpose.”[2] That vague exemption has actually proved quite a significant roadblock to enforcement of the law.

In 1998 the Alabama legislature passed the Anti-Obscenity Enforcement Act ostensibly to deal with a serious public nuisance in the state, the commerce of dildos and other like objectionable devices. The legislature justified the necessity of the act stating, “That in order to protect children from exposure to obscenity, prevent assaults on the sensibilities of unwilling adults by the purveyor of obscene material, and suppress the proliferation of “adult-only video stores . . . the sale and dissemination of obscene materials should be regulated without impinging on [the] First Amendment . . . .”[3] Similar justifications were used by Texas in their comparable sex toy law, to no avail when the validity of the Texas law was brought before the Fifth Circuit Court of Appeals.[4]

Alabama’s previous Attorney General, Troy King, thought the sex toy issue one of such importance to fight a long and costly legal battle spanning almost a decade, in order to rid the state of these corrupting rubber menaces. However, that battle produced a rather pyrrhic victory when the state won its case before the Eleventh Circuit. Because not only was the decade long legal dispute undoubtedly expensive, but likely produced little results in terms of actually enforcing of the law. The law, vaguely written in general, contains the aforementioned key exception that allows the sale of sex devices for “a bona fide medical, scientific, educational, legislative, judicial, or law enforcement purpose.”[5] Many sex toy shops continue to operate in the state currently hiding beneath this broad and vague exception.[6] And in fact, the “attorney general’s office has never prosecuted a store for selling to a customer who said the purchase was for one of the approved reasons.”[7] Apparently, that loophole in Alabama’s law is quite large, large enough for a Sex Toy Drive-Thru to do a successful business in Huntsville in the immediate aftermath of the state’s successful defense of the law.[8] Increased liveliness in Alabama’s political rhetoric may be the only positive result from the law. The Libertarian candidate for governor in 2006, Loretta Nall, began a sort of dildo drive entitled “Sex Toys for Troy” in 2007, which called for citizens to voice their disagreement with the law by mailing sexual devices to the Attorney General’s Office.[9] And while the idea of the former straight-laced Attorney General unwittingly opening packages packed full of adult inflatables of sundry colors and sizes might seem chortle-worthy, there is nothing comedic about the cost to the state’s coffers from the litigation nor is it comical that this sort of legislation contributes to Alabama’s image as the “laughingstock of the country.”[10] The Anti-Obscenity Enforcement Act particularly contributes to this image when we consider the unfortunate fact that the Act is not some outdated dusty old blue law freshly dug from the courthouse basement, but a law that was passed at the end of the Twentieth Century.

The Anti-Obscenity Enforcement Act was challenged almost immediately following its passage. During a convoluted legal battle in which the case pinged back and forth between the Eleventh Circuit and the Northern District of Alabama two appellate rulings from the Eleventh Circuit are particularly important in understanding the Eleventh Circuit’s attitude regarding the constitutionality of the statute. In Williams IV[11]the court was forced to evaluate the statute in light of new Supreme Court precedent, Lawrence v. Texas[12]. In Lawrence, the Court overturned a Texas sodomy statute on Due Process grounds.[13]Problematically, however, Lawrence contained all sorts of lofty dicta seemingly protective of privacy rights, but the majority did not clearly state what level of scrutiny the Court applied in striking down the Texas law.[14] The lack of a specific standard of review created quite an unusual problem given the importance of the three-tiered scrutiny system to due process/fundamental rights analysis.[15]Though Lawrence broadly reframed the right at stake, the decision did not do so clearly despite Justice Kennedy’s seemingly sublime libertarian proclamations including, “Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.”[16]

The Williams IV court distinguished the fact situation in Lawrence noting, “There is nothing private or consensual about the advertising and sale of a dildo.”[17]The Williams IV court also refused to conclude from Lawrence that sexual privacy is a fundamental liberty interest that would trigger strict scrutiny.[18]To determine this, the Williams IV court even conducted its own Glucksberg analysis, which of course resulted in Rational Basis review, as no fundamental right was found.[19] Thus, the Eleventh Circuit decided that because the Alabama law was based on only the trade of such sexual items that privacy was not implicated in a similar manner as the sexual conduct at issue in the Lawrence decision. Therefore, the Williams IV court had no difficulty upholding the Anti-Obscenity Act under Rational Basis Review.

More interestingly, the case returned to the Eleventh Circuit in 2007. The Williams VI[20]court again distinguished the commerce of sex toys from the situation in Lawrence. The court opined that because the private use of sex toys was not prohibited under the Alabama law, Lawrence did not govern the result. Despite the Lawrence endorsement of Justice Stevens’ view opining that “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice . . . ,”[21] the Williams VI court again further extrapolated that Lawrence did not completely bar public morality as a rational basis for legislation. The Court noted, “One would expect the Supreme Court to be manifestly more specific and articulate than it was in Lawrence If now such a traditional and significant jurisprudential principal has been jettisoned wholesale . . .”[22]

However, the following year the Fifth Circuit had a different take on Lawrence when it interpreted a very similar Texas statute. The Fifth Circuit circumvented the ambiguity found in Lawrence regarding the level of scrutiny applied by the Court by applying the holding of Lawrence directly to the facts at bar in Reliable Consultants without regard for the standard of review.[23]However, though the standard of scrutiny was somewhat ignored, the Fifth Circuit’s opinion seems to read like Rational Basis Review. Regardless, Texas could not even overcome rational basis because aside from public morality, now insufficient according to the Fifth Circuit in the aftermath of Lawrence, Texas could advance only dubious government interests supporting the law including interest in protection of “unwilling recipients” of sex toys.[24] Unlike the Eleventh, the Fifth Circuit interpreted Lawrence as utterly barring public morality as a sufficient justification for a statute even under rational basis review.[25] They particularly noted the adoption of Justice Stevens’ view as controlling by the majority in Lawrence.[26] The Fifth Circuit continued to opine that just as public morality was insufficient to regulate private adult sexual activity in the home, as was the case in Lawrence, then public morality is also an insufficient justification for the Texas statute which restricted the same sphere of activity.[27]

With the unresolved circuit split, the extent of Lawrence undefined, and an absolute lack of interest by Alabama’s legislature in repealing the law, it seems the Anti-Obscenity Enforcement Act is around to stay for the time being. The Eleventh Circuit’s refusal to give Justice Steven’s language full effect is regrettable as it has contributed to a “plain silly”[28] law languishing in our state code until the People compel the legislature of Alabama to change it. But connoisseurs of such objects need not be totally crestfallen, a sex toy can still be purchased in the state with only a quick signature of a waiver affirming to use the device only for medical purposes. So far the Attorney General’s Office has not required buyers to make the arduous trek across state lines to Florida or Georgia.


[1]Ala. code § 13A-12-200.2 (West, Westlaw through 2013 Legis. Sess.).

[2]Ala. Code § 13A-12-200.4 (West, Westlaw through 2013 Legis. Sess.).

[3] Anti-Obscenity Enforcement Act, 1998 Ala. Acts 98-467.

[4]See Reliable Consultants, Inc. v. Earle, 517 F.3d 738, 745-746 (5th Cir. 2008) (explaining that no “rational connection” exists between the Texas statute and the protection of children nor does such a connection exist regarding unwilling adults who must make an “affirmative decision” to purchase such a device).

[5]§ 13A-12-200.4.

[6] Mike Brantley, Alabama Sex Toy Ban: Court Rejects the Challenge, (Sep. 11, 2009, 3:41 PM),http://blog.al.com/live/2009/09/alabama_court_rejects_challeng.html

[7]Id.

[8]Jay Reeves, Sex Toy Drive-Thru Opens after Long Legal Battle in Alabama, (Dec. 30, 2010, 5:30 AM),http://www.huffingtonpost.com/2010/12/30/pleasure-sex-toy-drive-thru-alabama.

[9]Nall Adds Humor to Sex Toy Debate, The Tuscaloosa News (Nov. 16, 2007, 3:30 AM), http://www.tuscaloosanews.com/article/20071116/NEWS/711160301?tc=ar

[10]John Archibald, Alabama Rep. John Rodgers Out to Bust the Sex Toy Ban (Jan. 20, 2008, 6:57 AM),

http://blog.al.com/archiblog/2008/01/alabama_rep_john_rogers_out_to.html (quoting Representative John Rogers, who has twice unsuccessfully tried to repeal the current statute).

[11] Williams v. Att’y Gen. of Ala., 378 F.3d 1232 (11th Cir. 2004).

[12] Lawrence v. Texas, 539 U.S. 558 (2003).

[13]See id. at 562-564.

[14]See generally William C. Hayes, “Rabbit” Hunting in the Supreme Court: The Constitutionality of State Prohibitions of Sex Toy Sales Following Lawrence v. Texas, 44 Ga. l. Rev. 245, 259 (2009) (noting both that Justice Kennedy’s majority seems to have completely ignored the two-part Glucksberg fundamental rights test and that lower courts have been confused by Lawrence’s precedential value).

[15]See U.S. v. Virginia 518 U.S. 515, 567-568 (1996) (Scalia, J., dissenting) (explaining strict scrutiny is applied to state classifications affecting fundamental rights as determined by the Court and noting that such, in his view, “’fundamental rights’ should be limited to ‘interests traditionally protected by our society’”); see also Michael H. v. Gerald D., 491 U.S. 110, 122 (1989) (plurality, Scalia, J.); for more on the Court’s traditional recognition of narrow fundamental rights see Washington v. Glucksberg 521 U.S. 702, 721 (1997).

[16]Lawrence at 562.

[17] Williams IV at 1237 n. 8.

[18]See id. at 1238 (explaining that Lawrence was actually a rational basis decision).

[19]Id. at 1242 (defining the right at issue in the case as “the right to sell and purchase sexual devices”).

[20] Williams v. Morgan, 478 F.3d 1316 (11th Cir. 2007).

[21] Lawrence at 577.

[22] Williams VI, 478 F.3d at 1323 (citing Williams IV, 378 F.3d at 1238 n. 8).

[23]See Reliable Consultants at 744.

[24] Id. at 746.

[25] Id. at 745.

[26] Id.

[27] Id.

[28] Williams IV at 1251.

Ninth Circuit says NO to H8 Under Proposition 8

Joelle Ginsburg, Alabama Civil Rights and Civil Liberties Law Review, Junior Editor, Vol. 3

Joelle Ginsburg, Alabama Civil Rights and Civil Liberties Law Review, Junior Editor, Vol. 3

On February 7, 2012, a federal appeals panel in the Ninth Circuit ruled that California’s Proposition 8, which banned same-sex couples from marrying, was unconstitutional. This split decision is the most recent in a four-year long legal battle that began in November 2008 when 52% of California residents voted “yes” on the proposition, abruptly ending the rights of same-sex couples to marry in California.

This decision impacted the estimated 109,000 gay couples in the state and grassroots movements related to the ban were widespread. The campaigns for and against Proposition 8 raised a whopping $39.9 million and $43.3 million, respectively. Numerous lawsuits were filed in the California Supreme Court by same-sex couples and governmental entities challenging the validity of Proposition 8 and questioning its implications on previously administered same-sex marriages. Ultimately, the Supreme Court of California upheld Proposition 8 as a valid initiative, but allowed prior same-sex marriages to be grandfathered in.

On August 4, 2010, the ban was lifted when District Court Judge Walker overturned Proposition 8 in Perry v. Schwarzenegger, ruling that it violated both the Due Process and Equal Protection clauses of the Constitution. There was said be no compelling state interest justifying denying same-sex couples the fundamental right to marry and no rational basis for limiting the designation of ‘marriage’ to opposite sex couples. Controversy swarmed when proponents of Proposition 8 accused Walker of bias and claimed he should have disclosed his long-term relationship with another man. Some went as far as to say that Walker should have recused himself due to a conflict of interest. They argued that the conflict was not Walker’s sexual orientation, but the fact that his serious relationship could conceivably lead to marriage.

The June 14, 2011, decision by Chief Judge James Ware of the U.S. District Court in San Francisco left the ruling by Judge Walker in place. In his opinion, Ware wrote that it was not “reasonable to presume that a judge is incapable of making an impartial decision about the constitutionality of a law, solely because, as a citizen, the judge could be affected by the proceedings.” This ruling falls in line with similar precedence as no court has ever upheld the removal of a judge from a civil rights case because of his or her race, religion or gender.

The Ninth Circuit agreed with Judge Ware in saying that Walker was under no obligation to recuse himself for substantially the reasons set forth in the district court’s opinion. After moving past the initial roadblock of deciding that Judge Walker’s decision should not have been vacated, the panel moved on to assessing the constitutionality of Proposition 8.

Although it reached the same conclusion, the Ninth Circuit framed its decision in a narrower fashion than the District Court. Instead of pointing to an outright violation of the Equal Protection and Due Process clauses of the Constitution, the Ninth Circuit focused on another argument: Proposition 8 singled out same-sex couples for unequal treatment by taking away from them alone the right to marry, and this action amounts to a violation of the Equal Protection Clause. The court found this argument the most appealing because it was the narrowest ground for adjudicating the constitutional questions, as compared to more general equal protection and due process arguments with broader applications.

The court sympathized with opponents of Proposition 8 in saying that “a rose by any other name may smell as sweet, but to the couple desiring to enter into a committed lifelong relationship, a marriage by the name of ‘registered domestic partnership’ does not….It is the designation of ‘marriage’ itself that expressed validation, by the state and the community, and that serves as a symbol, like a wedding ceremony or a wedding ring, of something profoundly important.”

The Ninth Circuit found that eliminating the right of same-sex couples to marry in California was unacceptable. “Withdrawing from a disfavored group the right to obtain a designation with significant societal consequences is different from declining to extend that designation in the first place….The action of changing something suggests a more deliberate purpose than does the action of leaving it as it is.”

To that end, Judge Reinhardt found that “Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples.” Although the ban on same-sex marriage has now been lifted, a stay imposed on Judge Walker’s original decision will remain in place for at least two weeks after the decision. Opponents of Proposition 8 will likely seek to have the stay lifted, while supporters of Proposition 8 claim they will oppose this move.

Those against same-sex marriage are now faced with the decision to appeal the Ninth Circuit’s decision to the Supreme Court of the United States, or to ask a larger panel of the Ninth Circuit to review the decision. But, legal analysts question whether the Supreme Court will agree to take this appeal because the narrow Ninth Circuit ruling only applies to California law. The Supreme Court may wait to take a case regarding same-sex marriages until it is presented with a broader question that pushes for a final decision applicable nationwide.

Whatever one’s moral opinion on same-sex marriage may be, many have raised positive economic implications that stem from allowing same-sex marriage. The Sacramento Community College Players highlighted these positives in the comical “Prop 8-The Musical.” If you have not yet seen this short, admittedly liberal, star-studded play, you are in for a treat. It echoes what one circuit court judge recently told me: “Let them get married, it will be more business for divorce lawyers.” Sad, but almost certainly true.

Only time will tell what position our nation ultimately takes in this debate, but we can be sure of one thing: the next round in this fight is just over the horizon.

General Sources

 

http://en.wikipedia.org/wiki/California_Proposition_8

http://www.bloomberg.com/news/2012-02-07/california-s-gay-marriage-ban-ruled-unconstitutional-by-u-s-appeals-court.html

http://www.whatisprop8.com/

http://protectmarriage.com/

http://www.noh8campaign.com/

http://www.washingtonpost.com/politics/calif-same-sex-marriage-ban-ruled-unconstitutional/2012/02/07/gIQAMNwkwQ_story.html

http://www.cnn.com/2012/02/07/justice/california-proposition-8/index.html

http://slog.thestranger.com/slog/archives/2012/02/07/heres-a-copy-of-the-9th-circuits-opinion-on-prop-8

http://www.ca9.uscourts.gov/content/view.php?pk_id=0000000472

https://www.documentcloud.org/documents/204490-ware-decision.html

http://FunnyOrDie.com/m/1u1n

http://latimesblogs.latimes.com/lanow/2011/06/gay-marriage-judge-proposition-8.html

http://www.nytimes.com/2012/02/08/us/marriage-ban-violates-constitution-court-rules.html?_r=1

Disclaimer: The copyright in each article and post is owned by its respective author. Opinions expressed are those of the respective contributor and not presented as the views of the Alabama Civil Rights and Civil Liberties Law Review, its editors, the University of Alabama School of Law or the University of Alabama Board of Trustees or any other entity not specifically mentioned. All statements on this site belong to its writer. In addition, the views, opinions, and conclusions expressed in this page are those of the author and not necessarily those of The University of Alabama or its officers and trustees. The content of this page has not been reviewed or approved by the University of Alabama, and the author is solely responsible for its content.

Follow

Get every new post delivered to your Inbox.

%d bloggers like this: