In 1998, the Alabama legislature passed a law amending the Alabama Code to make the distribution of certain devices a criminal offense. After the amendment, the Alabama Code obscenity provisions stated, “It shall be unlawful for any person to knowingly distribute, possess with intent to distribute, or offer or agree to distribute any obscene material or any device designed or marketed as useful primarily for the stimulation of human genital organs for any thing of pecuniary value.” Exceptions were permitted for “bona fide medical, scientific, educational, legislative, judicial or law enforcement purposes.” A first violation was a misdemeanor punishable by a maximum fine of $10,000 and up to one year of jail or hard labor. A subsequent violation was a class C felony. Vendors and users of such devices filed a challenge. The district court declined to hold that the statute violated a constitutional right but ruled the ban unconstitutional because it lacked a rational basis.
The State of Alabama appealed the decision, arguing that “a ban on the sale of sexual devices and related orgasm stimulating paraphernalia is rationally related to a legitimate legislative interest in discouraging prurient interests in autonomous sex" and that “it is enough for a legislature to reasonably believe that commerce in the pursuit of orgasms by artificial means for their own sake is detrimental to the health and morality of the State.”2 The 11th Circuit Court accepted this argument and agreed with the district court’s rejection of the constitutional challenge that there was a privacy right at stake. Although he court recognized that Roe v. Wade guaranteed privacy protections from government interference within the framework of procreation, it argued that “none of these cases…is decisive on the question whether the Constitution protects every individual's right to private sexual activity and use of sexual devices from being burdened by Alabama’s sexual device distribution criminal statute.”
The Supreme Court’s decision in Bowers v. Hardwick precluded extending the constitutional right to privacy to include a broad fundamental right to all sexual autonomy (such as the rights of consenting adults to use, buy, or sell sex toys). Bowers was overturned by the Supreme Court holding in Lawrence v. Texas (2003), and, in February of 2007, the ACLU challenged the 11th Circuit decision upholding the Alabama ban. The 11th Circuit Court argued that the Lawrence Court “declined the invitation” to recognize a fundamental right to sexual privacy and that therefore a rational basis test was an appropriate test for the constitutionality of the Alabama ban. Finding that public morality, the purpose of the statute, serves as a rational basis for legislation, the 11th Circuit once again upheld the Alabama statute.
On October 1, 2007, the Supreme Court declined certiorari.
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