Last edited: July 31, 2004

11th Circuit Nixes Sex Toys, Sex Rights

Fulton County Daily Report, July 29, 2004

By Jonathan Ringel

Americans do not have a fundamental right to sexual privacy, a 2-1 decision of the 11th U.S. Circuit Court of Appeals said on Wednesday.

The split panel upheld an Alabama law—nearly identical to one in Georgia—that made the sale of sex toys a crime punishable by up to a year in prison.

The decision extends an emerging division in the court over sexual rights, with Judges Stanley F. Birch Jr. and Rosemary Barkett leading opposing factions.

Birch maintains that although the U.S. Supreme Court last year struck down a Texas law criminalizing homosexual sodomy, the justices have not decided fully that sexual privacy is a fundamental right protected by the Constitution.

Barkett claims that the court is refusing to apply the sodomy decision to laws that violate people’s right “to be left alone in the privacy of their bedrooms.”

Last week, the full 11th Circuit split 6-6 in denying reconsideration of a decision that upheld a Florida law prohibiting homosexuals from adopting children. Birch wrote that while he thought the law was “misguided,” since there was no “constitutional liberty interest in private sexual intimacy,” the court must uphold Florida lawmakers’ right to exclude gays and lesbians from adopting.

Barkett wrote that the Florida law violated equal protection guarantees in the 14th Amendment and “substantive due process” rights to sexual privacy established in last year’s sodomy case, Lawrence v. Texas, 123 S.Ct. 2472.

Two judges agreed with Barkett that Florida was violating homosexuals’ equal protection rights; three other judges said the case was important enough to deserve another look.

This week Birch and Barkett faced off again, with Senior Judge James C. Hill providing Birch the swing vote in favor of Alabama’s right to prohibit the distribution of “any device designed or marketed as useful primarily for the stimulation of human genital organs ... .”

The result read like a highly charged repeat of last week’s decision, with Birch echoing his earlier analysis and Barkett calling the majority’s ruling “demeaning and dismissive.”

Users, Sellers of Toys Sue

Just after the law went into effect in 1998, a group of plaintiffs sued then-Alabama Attorney General William H. Pryor Jr., who is now an 11th Circuit judge. They claimed the new law violated a host of civil rights, including ones guaranteeing free expression, due process and safety from unreasonable government searches of homes.

The plaintiffs included six people who used sex devices—some on the advice of therapists as a means to combat depression and improve their marriages. One woman used a device because she suffers from a chronic disability that makes intercourse painful.

Two sellers of the sex devices, one who owns two “Pleasures” stores in the state and the other who conducts “Tupperware-style” parties to sell the products, also were plaintiffs.

A federal trial judge in 1999 found the law unconstitutional, but an 11th Circuit panel vacated the ruling, seeking a broader examination of how sexual laws had been enforced over time. After concluding that sexual privacy was “deeply rooted” in American legal tradition and practice, the trial judge again found the law unconstitutional.

Decision Belongs to Alabama

But on a second review before the 11th Circuit, Birch repeated his argument from the Florida gay adoption case, writing that the U.S. high court did not address the issue of sexual privacy in Lawrence last year.

He also reiterated a point conservatives make in the culture wars throughout the country—that judges should not become embroiled in making social policy. 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 ... .”

Birch added an argument that parallels one Pryor used unsuccessfully last year as Alabama’s attorney general in offering amicus support for the Texas sodomy laws. Wrote Birch in his sex toys opinion:”[I]f we today craft a new fundamental right by which to invalidate the law, we would be bound to give that right full force and effect in all future cases—including, for example, those involving adult incest, prostitution, obscenity, and the like.”

In dissent, Barkett said Birch’s analysis was in conflict with Lawrence. Quoting Justice Anthony M. Kennedy’s majority decision in Lawrence, Barkett wrote, “Our obligation is to define the liberty of all, not to mandate our own moral code.”

Barkett ended by suggesting that the court’s reluctance to apply Lawrence to the Florida case had become “a stubborn unwillingness to consider relevant Supreme Court authority” in the Alabama case. Williams v. Attorney General of Alabama, No. 02-16135 (11th Cir. July 28, 2004).

Birch, Barkett Agreed in Georgia Case

This ongoing debate between Birch and Barkett may make them seem polar opposites on issues of sexual rights, but it’s not that simple. Birch is a 1990 appointee of President Bush on the largely conservative 11th Circuit. In 1997, he joined Barkett, a former nun and 1994 President Clinton appointee considered one of the few liberals on the court, in a case about the rights of a homosexual Georgia lawyer.

Robin Shahar had sued then-Georgia Attorney General Michael J. Bowers for rescinding a job offer after he learned Shahar was going to have a marriage ceremony with her lesbian partner.

The 11th Circuit rejected Shahar’s suit against Bowers, but Birch wrote a dissent, joined by Barkett and two others, arguing Shahar’s relationship “qualifies as a protected intimate association under the First Amendment ... .” Shahar v. Bowers, 114 F.3d 1097 (11th Cir. 1997).

Comments from the American Civil Liberties Union, which represented the plaintiffs, could not be obtained by press time. Alabama AG Troy King issued a statement saying the 11th Circuit had “done its duty.”

According to the Alabama trial judge’s review of sex laws, only Georgia and Texas also have bans on sex toys. Alan I. Begner, an Atlanta lawyer who represents sex shops, said Georgia’s ban is “nearly identical” to Alabama’s law.

“On the face of it, sex toys are illegal to sell,” Begner said, but he said shops can survive prosecution if they can prove their products are “for novelty use only.”

The laws do not affect the use of Viagra or similar drugs, the 11th Circuit decision stated.

Begner added that in Georgia a physician may prescribe the use of a sex toy, but the allowance does not apply to a therapist who has only a Ph.D.

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