U.S. justices, rejecting an appeal without comment or recorded dissent, refused to hear an appeal by two vendors and a group of sex-toy users who argued the case raised important issues about the scope of the constitutional right to sexual privacy.
“It is unfortunate that they didn’t take the case, given the right of sexual autonomy,” attorney Lawrence Walters told XBiz. “It is disappointing that they didn’t take the case despite the fact that 20 percent of women in the nation use vibrators.”
“My guess is we’ll see it again [at the high court],” Walters said. “You never know why [justices] make these decisions. It could be they just didn’t like the plaintiffs, or that they have an extremely busy docket.”
Texas and Georgia are the only other states that restrict the distribution of sexual devices. 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.
Alabama’s law prohibited the distribution of "any device designed or marketed as useful primarily for the stimulation of human genital organs."
It hands out fines of up to $10,000 and as much as one year in jail for first-time violators.
The 7-year-old law allowed the sale of ordinary vibrators and body massagers that are not designed or marketed primarily as sexual aids. It exempted sales of sexual devices "for a bona fide medical, scientific, educational, legislative, judicial or law enforcement purpose."
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 U.S. Circuit Court of Appeals. 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 — Sherri Williams and another who conducts Tupperware-style parties to sell the products — also were plaintiffs. Williams owns Pleasures Alabama stores in Huntsville and Decatur.
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. But in July, the 11th Circuit 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.”
That ruling was affirmed Tuesday.
Attorneys for the American Civil Liberties Union, representing those who challenged the law, argued that private, consensual sexual conduct among adults is constitutionally protected and beyond the reach of government regulation.
The ACLU said the high court's decision in 2003 — Lawrence vs. Texas —striking down a Texas sodomy law also created a fundamental, constitutional due process right to sexual privacy.
"The evidence shows that this case is not about novelty items, naughty toys or obscene matter. It is a case about human sexuality and extremely intimate acts," ACLU attorneys said.
The case is Sherri Williams, et al, vs. Alabama, No. 04-849.
