WASHINGTON — The U.S. Supreme Court this week denied review of a lawsuit against the city of Sandy Springs, Ga., which imposed a ban on sex toy sales after it incorporated in 2005.
With the review denied at the high court, the city won’t have to pay a financial penalty for a law that may have been unconstitutional.
Last year, Sandy Springs deleted the sex toy ban ordinance on the eve of an 11th U.S. Circuit Court of Appeals decision that likely would have found its sex toy ban law unconstitutional. The 11th Circuit, as a result, ruled the case moot.
But plaintiffs argued the case, Davenport v. Sandy Springs, should have continued with nominal damages imposed and asked the U.S. Supreme Court to decide.
This week, U.S. justices declined to take the case.
Numerous civil liberties groups sided with the plaintiffs and filed amicus briefs, stating a concern that government was getting a free pass at violating the Constitution by deleting a law at the last minute of a court challenge.
Sandy Springs contended, however, that no one was harmed with the sex toy ban ordinance because it was never enforced. The ordinance prohibited 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 said 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 contended they have a fundamental right to engage in acts of private, consensual sexual intimacy and said the Sandy Springs ban placed a burden on that right.
The appellants argued the ban violated the due process clause of the 14th Amendment of the Constitution.
But Sandy Springs, just prior to the likely adverse decision at the 11th Circuit, deleted the sex toy-ban ordinance.
