Following the 11th Circuit in Williams, Alabama court holds that public morality is a sufficient basis to uphold ban on sale of “sex toys”
1568 Montgomery Highway, Inc. v. City of Hoover, No. 1070531, 2009 WL 2903458 (AL Sup. Ct., Sept. 11, 2009)
Following the 11th Circuit in Williams, Alabama court holds that public morality is a sufficient basis to uphold ban on sale of “sex toys”
Following a trial court’s judgment finding the Alabama Code’s definition [found in § 13A-12-200.5, Ala . Code 1975] of “adult-only enterprise” unconstitutionally vague and therefore unable, as part of a criminal statute, to restrict the sale of its “sex toys,” 1568 Montgomery Highway d/b/a “Love Stuff” filed a motion to amend the court’s simultaneous refusal to find § 13A-12-200.2–which bans the sale of “device[s] designed or marketed as useful primarily for the stimulation of human genital organs”–unconstitutional under the United States and Alabama Constitutions. When the circuit court refused, Love Stuff appealed to the Alabama Superior Court
Love Stuff’s appeal asked the Superior Court to follow the 5th Circuit’s ruling in Reliable Consultants v. Earle, No. 06-51067 (5th Cir. 2008) [CDC abstract], which held that Texas law burdens “the individual’s substantive due process right to engage in private intimate conduct of his or her choosing,” instead of the 11th Circuit’s ruling in Williams v. Morgan, No. 06-11892 (11th Cir. 2007), which held that public morality is a sufficient rational basis to uphold the constitutionality of an Alabama statute prohibiting the commercial distribution of devices”primarily for the stimulation of human genital organs.” Hence the potential, as Eugene Volokh points out, for Love Stuff’s appeal to eventually allow the U.S. Supreme Court to solve the circuit split over the correct application of Lawrence v. Texas 539 U.S. 558 (2003).
Love Stuff argued that the sale of “sex toys” involves a “liberty interest” that must be balanced with Alabama’s “interest in protecting its citizens,” and that, in effect,”the right of Alabamians to sell and to use sexual devices should prevail over Alabama’s purported interests in public morality.” The court disagreed. Upholding the Alabama statute, with two justices dissenting, the court “embraced” the 11th Circuit’s view of Lawrence, and adopted the 11th Circuit’s holding “that public morality supplies a legitimate rational basis for the statute”:
The Court of Appeals for the Eleventh Circuit recognized that the statute in Lawrence criminalized private sexual activity while the Alabama statute prohibits public, commercial activity. Section 13A-12-200.2 does not prohibit the personal use of or “the gratuitous distribution” of sexual devices . . . Although the court recognized thaat to the extent that Lawrence rejected public morality as a legitimate governmental interest, it invalidated only those laws that involved both private and noncommercial activity. Section 13A-12-200.2 involves public commercial activity, not the regulation of private sexual conduct. Also, the Texas statute in Lawrence involved a discrete class of individuals targeted for discrimination out of simple hostility, where no such class is targeted in the Alabama statute. The Eleventh Circuit did not “endorse the judgment” of the Alabama Legislature in enacting a statute banning the sale of sexual devices, but it left it to the citizens of this state to rectify, in its view, any improvident legislation through the democratic process.
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