ATLANTA — The 11th U.S. Circuit Court of Appeals this week sided with the city of Sandy Springs, Ga., in its battle against retailers that sell sex toys, upholding the municipality’s ban on the sale of sexually explicit merchandise.
But the 11th Circuit panel that reviewed the case also suggested that the whole court, en banc, should review the decision.
The 11th Circuit’s ruling upheld, for now, a lower court's dismissal of two complaints that challenge the constitutionality of the Sandy Springs’ ordinance prohibiting the sale, rental or lease of obscene material.
The legal challenge was brought by the adult stores Flanigan’s and Inserection, which sought to sell the banned sex toys and novelties, along with Melissa Davenport, who suffers from multiple sclerosis and says she uses sexual toys with her husband to facilitate intimacy, and Marshall Henry, an artist who uses the devices in his artwork.
Davenport and Henry contend they have a fundamental right to engage in acts of private, consensual sexual intimacy and said the Sandy Springs ban places a burden on that right.
The appellants argued the ban violated the due process clause of the 14th Amendment of the Constitution.
“The appellants contend that they have a fundamental right to engage in acts of private, consensual sexual intimacy, and that the ordinance burdens this right,” the panel said. “The city responds that this claim is foreclosed by our prior holding in Williams IV.”
The appeals court ruled that its prior holding in Williams v. Attorney General (Williams IV) took precedence.
In Williams IV, the appellate court upheld an Alabama law against the sale of sex toys, saying the Constitution does not protect the right to buy, sell and use sex toys and other explicit novelty items.
"Therefore, unless and until our holding in Williams IV is overruled en banc, or by the Supreme Court, we are bound to follow it. Although we are sympathetic to the appellants' 14th Amendment Due Process claim, we are constrained by our prior precedent in Williams IV, and we are obligated to follow it," the court said.
The 11th Circuit has jurisdiction over federal cases originating in the states of Alabama, Florida and Georgia.