Constitutional Law - Substantive Due Process - Eleventh Circuit Upholds Alabama Statute Banning Sale of Sex Toys

Harvard Law Review, December 2004 | Go to article overview

Constitutional Law - Substantive Due Process - Eleventh Circuit Upholds Alabama Statute Banning Sale of Sex Toys


CONSTITUTIONAL LAW--SUBSTANTIVE DUE PROCESS--ELEVENTH CIRCUIT UPHOLDS ALABAMA STATUTE BANNING SALE OF SEX TOYS. --Williams v. Attorney General, 378 F.3d 1232 (11th Cir. 2004).

Last year, in Lawrence v. Texas, (1) the Supreme Court declared unconstitutional a Texas law criminalizing homosexual sodomy. (2) Following the decision, legal scholars were quick to note what appeared to be a new chapter in the Court's substantive due process jurisprudence. (3) But while Lawrence was undoubtedly an important decision, (4) it raised more questions than it answered. (5) Recently, in Williams v. Attorney General, (6) the Eleventh Circuit considered the import of the Court's decision in Lawrence and held that there is no fundamental right in the Constitution protecting the use of sex toys. (7) Although the majority was ultimately correct to uphold the Alabama statute, its restrictive reading of Lawrence was well off the mark. The dissent, in contrast, favored an unjustifiably broad interpretation of Lawrence that went beyond the limits of that case. Unfortunately, by failing to acknowledge the equal protection principles underlying the Supreme Court's watershed decision, both sides risked undermining the precedential value and cultural significance of Lawrence.

In 1998, the Alabama legislature made it a crime to distribute "any device designed or marketed as useful primarily for the stimulation of human genital organs for any thing of pecuniary value." (8) Vendors and users of "sexual devices" (9) challenged the constitutionality of the statute, contending that its implementation would violate their fundamental right to privacy and personal autonomy. (10) Plaintiffs further argued that the legislation violated due process because it did not bear a rational relationship to a legitimate state interest. (11) Applying rational basis review, the district court held that the statute was unconstitutional because it was not rationally related to the state's interest in regulating public morality. (12)

The Eleventh Circuit reversed the district court's rational basis holding, but remanded the case for further consideration of the plaintiffs' fundamental rights argument. (13) Writing for a unanimous panel, Judge Black (14) stated that the record was insufficient to allow a ruling on the as- applied fundamental rights claim because the district court "analyzed neither whether our nation has a deeply rooted history of state interference, or state non-interference, in the private sexual activity of married or unmarried persons nor whether contemporary practice bolsters or undermines any such history." (15)

On its second hearing of the case, the district court again struck down the Alabama statute. (16) The district court first framed the plaintiffs' asserted liberty interest as a general "right to sexual privacy" (17) and then held that the Constitution protected this right. (18) Finding that the challenged statute was not narrowly tailored to meet a compelling state interest, (19) the district court accordingly concluded that the prohibition on the sale of sexual devices was unconstitutional. (20)

The Eleventh Circuit reversed. (21) Writing for the majority, Judge Birch (22) declined to recognize a fundamental right to sexual privacy under the Constitution. (23) The majority maintained that recognizing such a right under Lawrence would be inappropriate because "the Lawrence opinion did not employ fundamental-rights analysis and ... ultimately applied rational-basis review, rather than strict scrutiny, to the challenged statute." (24) Having deemed Lawrence inapplicable to a fundamental rights claim, the majority performed a Glucksberg analysis (25) and held that the district court "committed reversible error in concluding that the Due Process Clause 'encompass[es] a right to use sexual devices like ... vibrators, dildos, anal beads, and artificial vaginas.'" (26) In applying Glucksberg, the majority particularly disagreed with the district court's characterization of the asserted constitutional right as a liberty interest in sexual privacy. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Constitutional Law - Substantive Due Process - Eleventh Circuit Upholds Alabama Statute Banning Sale of Sex Toys
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Author Advanced search

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.