In Wednesday’s decision, the 11th U.S. Circuit Court of Appeals said Alabama can police the sale of adult novelties that include "any device designed or marketed as useful primarily for the stimulation of human genital organs.”
With the ruling, Alabama would join Georgia and Texas with adult toy bans. Most sex toys are illegal to sell in those states, but most shops can survive prosecution if they can prove the products are for novelty use only.
The court said that Alabama’s sex-toy laws do not affect the use of condoms and Viagra or similar drugs, nor does it apply to sex toys prescribed by a physician.
In its decision, 2-1, the court said that the issue was “whether the majority may use the power of the state to enforce these views on the whole society through operation of the criminal law.”
Attorney Lawrence G. Walters, who represents adult-industry companies, told XBiz that Wednesday's ruling is flawed.
“The 11th Circuit seems to be out of sync with the U.S. Supreme Court, since the high court clearly recognizes that the right of privacy extends to personal sexual autonomy, while the 11th Circuit appears to be giving that argument short shrift," Walters said.
" This is an unfortunate decision since it sets bad precedent for all retail locations selling sex toys, and will be relied upon by the government as a basis to criminalize or restrict this activity," he said.
Sherri Williams, an adult novelty retailer who filed the lawsuit with seven other women and two men, told The Associated Press that the decision "depressing."
Williams, who owns Pleasures stores in Huntsville and Decatur, said she plans to appeal the case to the U.S. Supreme Court.
"I'm just very disappointed that courts feel Alabamians don't have the right to purchase adult toys. It's just ludicrous," she said. "I intend to pursue this."
Alabama’s law makes the sale of sex toys a crime punishable by up to a year in prison.
After Alabama’s law went into effect in 1998, a group of plaintiffs sued then-Alabama Attorney General William H. Pryor Jr., who is now an 11th Circuit judge. They claimed the new law violated a host of civil rights, including ones guaranteeing free expression, due process and safety from unreasonable government searches of homes.
The six plaintiffs who used sex devices received the advice of therapists as a means to combat depression and improve their marriages. One woman used a device because she suffers from a chronic disability that makes intercourse painful.
Two sellers of the sex devices — Williams and another who conducts Tupperware-style parties to sell the products — also were plaintiffs.
A federal trial judge in 1999 found the law unconstitutional, but an 11th Circuit panel vacated the ruling, seeking a broader examination of how sexual laws had been enforced over time.
After concluding that sexual privacy was "deeply rooted" in American legal tradition and practice, the trial judge again found the law unconstitutional.
The case is Sherri Williams et al vs. Bill Pryor, Attorney General of Alabama, No. 02-16135.