Joanna L. Grossman

Courts Divide Over the Constitutionality of Sex Toy Bans

By JOANNA L. GROSSMAN
Tuesday, November 10, 2009

The Supreme Court of Alabama recently upheld a state obscenity law banning the sale or promotion of sex toys. In so holding, the Court agreed with one of the two federal appellate courts to consider the same question in recent cases.

At issue in the Alabama case, 1568 Montgomery Highway, Inc. v. City of Hoover, is whether there is a constitutional right to sexual freedom – but that is an issue the U.S. Supreme Court may not yet be ready to tackle.

The Alabama Law

In 1998, the Alabama legislature passed an amendment to the state's obscenity laws that made it a crime to distribute "any device designed or marketed as useful primarily for the stimulation of human genital organs for anything of pecuniary value." The law does not criminalize masturbation or the use of sexual aids purchased across state lines. In the Act, the legislature stated that the purpose of the law was to protect children and unwilling adults from exposure to obscene materials and sexual aids.

Sex toys seem to have two main distribution mechanisms: adult stores and in-home parties, akin to Tupperware parties, at which women sell the products to their friends and other customers in return for a cut of the profits. The tagline for Passion Parties, the leading sex toy party company, is "The Ultimate Girls' Night In." Its stated mission is to promote women's business ownership, while "enhancing the sexual relationships of our clients with sensual products designed to promote intimacy and communication between couples."

In the recent Alabama case, the City of Hoover sought a declaratory judgment that a company doing business as "Love Stuff," which sells sexual aids targeted at women, among other things, was in violation of several provisions of Alabama's obscenity law, including the provision cited above. Love Stuff responded with a challenge to the constitutionality of the law. Indeed, the law was challenged by sex toy vendors and users almost immediately upon enactment and has been embroiled in litigation ever since.

It is clear that the defendant, Love Stuff, has standing to assert the constitutional rights of its customers. After all, the cornerstone of the constitutional right to privacy was Griswold v. Connecticut, a case in which another third party – there, a pharmacist -- successfully challenged Connecticut's ban on the sale of contraceptives as a violation of the liberty of married couples who wanted to purchase and use them. Similarly, with sex toys, a criminal ban on sale frustrates the ability of individuals to exercise the right – if one is found – to make use of them. Thus, the seller should – and will – be recognized to have standing to raise a constitutional challenge to the law.

A Brief History of Sexual Freedom (and the Limits Imposed Upon It) in the United States

Although this history is unfamiliar to most people, there is a long history in the United States of regulating, and even criminalizing, various sexual practices. The so-called "morals offenses" had their heyday in the Progressive Era, early in the Twentieth Century. At a time when the sale of alcohol was constitutionally prohibited, and the "anti-vice" movement was in full swing, states filled their statute books with laws designed to exact from their citizens adherence to a fixed moral code. Laws criminalizing acts like adultery, sodomy, and cohabitation were common place. Even fornication – the simple act of sexual intercourse as an unmarried person – was criminalized in most states.

Support for criminal enforcement of a private moral code waned over the course of the Twentieth Century, however. Prosecutors essentially ceased to enforce these laws, especially the ones related to private, consensual sexual activity. They were occasionally enforced, but typically only when the questionable activity came up in some other legal proceeding. Many states repealed laws in this vein as part of the periodic modernization and updating of their codes, but others left them on the books to die a quiet death from neglect. The power of states to pass and enforce these types of laws, however, was never called into question.

The Impact of Lawrence v. Texas on Laws Restricting Sexual Freedom

The landscape for sexual freedom changed completely in 2003, however, when the Supreme Court handed down its ruling in Lawrence v. Texas. In that case, the Court struck down Texas's criminal ban on same-sex sodomy as a violation of the Due Process Clause of the Fourteenth Amendment. The ruling was somewhat surprising, since the Court had reached the exact opposite conclusion in 1986, when it upheld Georgia's criminal ban on sodomy in Bowers v. Hardwick – a decision that it now chose to overrule.

In Bowers, the Court reasoned that the sodomy ban was constitutional because, though there was constitutional protection for a variety of rights that clearly implicated sex – contraception, abortion, and marriage, to name just a few – there was no actual constitutional right to engage in sexual behavior of any kind. The ruling in Bowers thus put a roadblock in the way of any further expansion of doctrines which would expand the line of cases on "privacy."

But Lawrence reached the Court at a very different moment in time – after significant developments in the gay rights arena had come to pass, and societal acceptance of homosexuality had greatly increased.
The events that gave rise to the Lawrence case began when police responded to a weapons disturbance call at a private residence, but discovered, instead, two gay men engaged in anal sex. Their actions violated the Texas Penal Code, which prohibited "deviate sexual intercourse with another person of the same sex," defined, specifically, to include anal sex.

The Court, in Lawrence, condemned its prior ruling in Bowers as wrong when decided and still wrong, in an opinion that spoke broadly and empathically about the necessary sphere all individuals must have in which to pursue intimate relationships. The Supreme Court did not come right out and extend constitutional protection to sex per se, but it found protection, instead, in the liberty interest of adults to conduct consensual personal relationships "in the confines of their homes and their own private lives."

The right the Court recognized was said to include the right to the "overt expression" of the relationship in "intimate conduct"; and the right of individuals, whether married or not, to make decisions about "intimacies of their physical relationship, even when not intended to produce offspring."

Significantly, the Court in Lawrence rejected the long-accepted view that states could use their police power to insist on adherence to a particular moral code. The Court also strongly suggested that laws affecting the institution of marriage, involving minors, or involving sexual activities that are conducted in public or for commercial purposes would not be within the bounds of the "private relationships" protected by the Fourteenth Amendment.

The Impact of Lawrence v. Texas on Laws Restricting Sexual Freedom

The direct impact of Lawrence was, of course, to put an end to sodomy bans, which then existed in thirteen states. Among its other effects, Lawrence brought to light the myriad state laws that regulate or even criminalize certain kinds of sexual activity -- or even just plain old sex -- in particular contexts. When Lawrence came down, judges across the country were faced with a slew of new cases (and petitions for rehearing of prior cases) about the validity of every law having anything to do with sex – such as polygamy and adultery bans, prohibitions on the promotion or sale of sex toys, and statutory rape laws, to give just a few examples.

Thus far, the Lawrence challenges have met with mixed results. The Virginia Supreme Court invalidated its longstanding criminal ban on fornication in the wake of Lawrence, as I discussed in a prior column. A trial court in North Carolina invalidated the state's criminal ban on cohabitation, a ruling the state did not even bother to appeal. The Kansas Supreme Court invalidated a provision of its criminal laws that punished same-sex statutory rape more severely than the same conduct between members of the opposite sex (discussed here). However, the Utah Supreme Court upheld its ban on polygamy against a Lawrence challenge in State v. Holm, and none of the court rulings invalidating same-sex marriage bans were based on Lawrence.

Can a Criminal Ban on Sex Toys Survive Lawrence? Federal Courts Disagree

Federal appellate courts have split over whether a criminal ban on sex toys is unconstitutional in the wake of Lawrence.

Several years ago, a Texas mother of three, Joanne Webb, was arrested after selling sex toys to two people, who purportedly were a young married couple in search of sexual regeneration, but actually were undercover police officers. She was charged under Texas's obscenity law, which makes it a crime to promote a device "designed or marketed as useful primarily for the stimulation of human genital organs." She sold sex toys at "passion parties" held at her home; the alleged violation of law was not selling the devices, but "promoting" them through her advice to the couple about different products and how they work. (I discuss that case in greater detail in a previous column.)

The law under which Webb was charged was ultimately invalidated by the U.S. Court of Appeals for the Fifth Circuit in Reliable Consultants, Inc. v. Earle, in a 2008 ruling in a case unrelated to Webb's own prosecution. The court held, under Lawrence, that the Texas law significantly infringed the fundamental right of the individual "to engage in private intimate conduct of his or her choosing." The Texas ban, the court reasoned, meant that an "individual who wants to legally use a safe sexual device during private intimate moments alone or with another is unable to legally purchase a device in Texas, which heavily burdens a constitutional right."

The court was moved in part by the Texas law's breadth, which made it a crime even to give a sexual aid to another person, regardless of whether or not money changed hands. This feature of the statute, the court wrote, "undercuts any argument that the statute only affects public conduct."

But the court also disputed the power of the state to use the ban to enforce "public morality," which it defined to require the restriction of "prurient interests in autonomous sex and the pursuit of sexual gratification unrelated to procreation and prohibiting the commercial sale of sex." In the view of the court of appeals, the Supreme Court had made clear in Lawrence that states cannot "burden consensual private intimate conduct simply by deeming it morally offensive."

Meanwhile, a similar case challenging Alabama's criminal ban on the sale of sex toys was working its way through the federal court system. In Williams v. Morgan, a case that went back and forth between trial and appellate courts repeatedly, the U.S. Court of Appeals for the Eleventh Circuit ultimately reached a different conclusion than the Fifth Circuit had in Reliable Consultants. The many different opinions in the case emphasize different points, but the final ruling in 2008 upheld the validity of the Alabama law.

In so doing, the court relied heavily on the fact that the Alabama law regulated only commercial activity – the sale of sexual aids, and not their use. Even after Lawrence, this court held, the state retains the right to regulate commercial activity based on concerns about public morality, and maybe to regulate more broadly when it comes to any law that needs only a rational basis to survive – in other words, any law that does not trigger the more demanding level of review called "strict scrutiny" that the Supreme Court has sometimes held is warranted.

The Opinion in 1568 Montgomery Highway v. City of Hoover

That bring us back to Hoover, the case with which I began this column: The Alabama Supreme Court considered, in that case, the same Alabama statute that was upheld by the U.S. Court of Appeals for the Fifth Circuit in Williams. In so doing, it noted, correctly, that the debate about Lawrence's scope "remains open." The Supreme Court, for example, did not firmly establish the standard of review for evaluating "intimate association" or "sexual freedom" cases because it ruled that Texas's sodomy ban could not survive even the lowest level of review (rational basis review). The Lawrence Court also tried to limit its decision's reach by listing the types of laws that did not infringe on the right it recognized, but the reasoning of the opinion suggests a much broader scope for the holding.

The question of the constitutionality of a criminal ban on sex toys squarely exposes Lawrence's ambiguity: Does the decision preclude the state from restricting all forms of private, consensual sexual conduct? Only those that encompass discrimination against a group, such as homosexuals? Only those that have a commercial aspect? Only those that necessarily involve an "intimate relationship"?

At the crux of the split between the Fifth and Eleventh Circuits is a dispute about how broadly to read Lawrence. On one hand, if adults in consensual relationships have the right to voluntarily engage in sodomy as part of their sexual life, then, arguably, they ought to be able to choose to use legal sex toys as well. Prohibiting either seems to invite a disturbing level of governmental intrusion into matters most intimate.

Moreover, Lawrence says pretty clearly that the fact that a state views a "particular practice as immoral" is not a sufficient reason for upholding a ban on it. And it is hard to imagine a compelling reason to ban the sale of sexual aids other than a belief that their use is immoral. Moreover, sex toys, when sold to adults and used in private, do not fall within Lawrence's express list of exclusions: There is no apparent risk to minors; there is no coercion; there is no prostitution; and the general public is not forced to witness the activity or formally recognize the practice.

On the other hand, Lawrence could be read more narrowly to protect relationships, rather than sexual acts, and to permit morality as a justification for regulating commercial, rather than private activity. The Alabama Supreme Court took this approach, siding with the Eleventh Circuit in Williams. Because the Alabama statute limited only the sale of sexual aids, the court did not dispute the state's right to regulate in the name of "public morality." It also did not find any discrete class of individuals to be targeted for discrimination or hostility by the sex toys law, whereas the same-sex sodomy law struck down in Lawrence had obviously targeted homosexual persons.

The Alabama Supreme Court Erred – But this Area of Law Is In Flux

On the merits, the Alabama Supreme Court probably got this one wrong, but not unreasonably so. Lawrence v. Texas made an earth-shattering noise when it was handed down in 2003, but, ultimately, its full extent is unknown. Reasonable minds could differ on how to define both the right protected and the state's power to enforce public morality.

Now, with so many "Lawrence challenges" percolating through state and federal courts, the time may be ripe for the Supreme Court to weigh in again. But will the Court be brave enough to take a case on a constitutional right to use sex toys? That is a very interesting question.


Joanna Grossman, a FindLaw columnist, is a professor of law at Hofstra University. Her columns on family law, trusts and estates, and discrimination, including sex discrimination and sexual harassment, may be found in the archive of her columns on this site.

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