Mike Fees, attorney for Pleasures store owner Sherri Williams, said he filed a writ of certiorari last week with the U.S. Supreme Court, asking it to decide the constitutionality of state laws prohibiting the sale of “any device designed or marketed as useful primarily for the stimulation of human genital organs.”
Originally enacted by the Alabama legislature in 1998, the law, designated as an “anti-obscenity” act, makes it illegal to distribute and possess with intent to distribute any type of sexual device. People prosecuted under the law face a fine of up $10,000 and “may be imprisoned in the county jail or sentenced to hard labor for the county.”
Taking a page from Lawrence vs. Texas, the U.S. Supreme Court case that struck down Texas laws prohibiting consensual sodomy between men because the court found it unconstitutional to limit legal acts between specific groups of consenting adults, Fees argues that, because masturbation and genitalia stimulation are not illegal in Alabama, the sale of devices used for the purpose should be legal as well.
“The constitutional right of privacy established in a long line of United States Supreme Court decisions forbids this type of intrusion into an individual’s lawful sexual practices and intimate medical affairs,” wrote Fees in an amended complaint in the initial court case.
According to Fees, prohibiting the sale of sexual aids also inhibits the medical treatment of “anorgasmic women” who have difficult achieving orgasm through any other means.
Among the many findings that Fees noted were specific sections of Food and Drug Administration code that address therapeutic uses of vibrators.
“To the extent the challenged statute purports to be premised on general principles of morality, the fact that neither use of sexual aids nor masturbation is unlawful undermines that rationale,” Fees wrote. “To the extent the challenged statute purports to be based on the premise that they are somehow obscene, the devices do not meet the definition of obscenity set out in the Alabama criminal code.”
In the underlying lawsuit, the plaintiffs have twice won their cases in trial courts, but lost on appeal. If the U.S. Supreme Court accepts the case and rules in favor of the plaintiffs, the case could have dramatic effects for the handful of states currently prohibiting the sale of sexual aids.
Currently, these states include Texas, Nebraska, Georgia, Mississippi, Louisiana and Virginia.
The case was lost most recently over the summer in the 11th Circuit Court of Appeals, when it ruled that there is no constitutionally guaranteed fundamental right to sexual privacy.
Fees expects to know whether the high court will accept the case by the middle of February.
The underlying case is Williams vs. Pryor, CV-98-S-1938-NE.