Challenge to Sex-Toy Ban Might Come To A Supreme Court Near You

A lawsuit out of the Atlanta suburb of Sandy Springs is raising the question of whether the Constitution of these here United States protects the right to sell sex toys. Keep your Rabbits close, folks, because the answer isn't completely clear.

Since 2009, Sandy Springs has had a local ordinance in place banning the sale of obscene materials more generally. It captures sex toys under the following definition:

Any device designed or marketed as useful primarily for the stimulation of human genital organs is obscene material under this section. However, nothing in this subsection shall be construed to include a device primarily intended to prevent pregnancy or the spread of sexually transmitted diseases.

Last week, a couple of plaintiffs filed a lawsuit challenging the ordinance. One is an artist who claims he wants to use sex toys in his work. The other is Melissa Davenport, who has an even more compelling hook for her argument: she suffers from multiple sclerosis. The accelerating nerve damage brought on by that disease, she says, diminished the pleasure she took in sex. Sex toys solved that problem, and she speaks to other MS sufferers about their benefit, and even sells the toys.

Their complaint alleges various violations of the Fourteenth and First Amendments, mostly relating to the overbreadth of the ordinance and its infringement of their right to privacy.

In a landscape of sexts, sex tapes, and pretty frank dildo discussions on the television just about every day, the ordinance seems charmingly quaint. But in fact, there is a split between federal appeals courts on this issue just now. It comes as fallout from Lawrence v. Texas, the groundbreaking 2003 Supreme Court decision that struck down Texas' sodomy law. Sodomy laws had traditionally survived on the principle that local views of morality were a legitimate reason to regulate private sexual conduct. The Lawrence court more or less killed that idea, holding that,

the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.

In 2008, the Fifth Circuit was asked to consider the constitutionality of a Texas-wide statute banning the sale of sex toys, and it struck it down under Lawrence, writing that,

These interests in "public morality" cannot constitutionally sustain the statute after Lawrence. To uphold the statute would be to ignore the holding in Lawrence and allow the government to burden consensual private intimate conduct simply by deeming it morally offensive.

But in 2007, the Eleventh Circuit (which includes Georgia), upheld a similar Alabama statute, saying Lawrence didn't apply because the sale of sex toys was a "public, commercial activity."

To the extent Lawrence rejects public morality as a legitimate government interest, it invalidates only those laws that target conduct that is both private and non-commercial.

This "circuit split," as any law student knows, makes the next case eligible to get up to the Supreme Court, particularly since the Eleventh Circuit is unlikely to reverse itself on this case if it gets there.

Were I the only judge of it, I would likely go with the Fifth Circuit's approach, which legal experts seem to agree is the right one. Partly, that's because I'm strongly on the side of not letting "public morality" be the only reason to legislate something and partly because I turn into a raging libertarian on the question of whether people should be able to get their vibrators without risking a misdemeanor, heavens to Betsy.

But then, I'm no conservative wing of the current Supreme Court, of course.

[Image via Shutterstock.]