Ruling on sex toys is long overdue
Posted by Jennifer Amato on 02/18/2008 in General SexEd Articles
Granted, the U.S. Supreme Court has weightier issues to consider. But sooner or later, it needs to make a definitive ruling on sex toys.
The decision last week by the 5th U.S. Circuit Court of Appeals that overturned a Texas ban on the sale of sex toys is in direct opposition to a ruling by the 11th Circuit that applies to Alabama.
It also leaves Alabama as the only state in a position to actively enforce a ban on sex toy sales.
Texas lawmakers made it illegal to sell or promote “obscene devices” like vibrators with punishments ranging up to two years in jail. The 5th Circuit, citing a 2003 Supreme Court opinion that struck down bans on consensual sex between gay couples as a violation of the 14th Amendment’s guarantee of privacy, held the Texas law unconstitutional.
The court decision described it as “an attempt to enforce a public moral code by restricting private intimate conduct ... The case is not about public sex. It is not about controlling commerce in sex. It is about controlling what people do in the privacy of their own homes.”
That is precisely what Alabama’s ban is all about.
However, a panel from the 11th Circuit Court ruled in 2004 that Americans do not have a fundamental right to sexual privacy, despite the ruling on gay couples. It upheld this state’s law that subjects people who sell sex toys to up to a year in prison.
Still, Judge Stanley F. Birch Jr., who wrote the majority opinion made his feelings clear. This is an issue for the people, not the courts. Without a fundamental right at stake, Birch wrote, only the people of Alabama could decide “that a prohibition of sex toys is misguided, or ineffective, or just plain silly ... ”
Plain silly is exactly what it is.
Alabama’s Legislature believes that sex toys promote a “prurient interest in autonomous sex” through “the pursuit of orgasms by artificial means.”
Heaven help us.
When a Jefferson County judge ruled in November that the state law was too vague to force closure of a sex toys store in Hoover, Attorney Gen. Troy King said he would seek a stricter law from the Legislature.
Thankfully, state Rep. John Rogers, D-Birmingham, prefiled a bill to scrap the ban entirely.
We hope his colleagues respond readily. There are weightier issues for the lawmakers to handle as well.
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