A Sexual Bill of Rights: Bickering over vibrators on the 11th Circuit

Slate ^ | Aug. 4, 2004 | Dahlia Lithwick

[Lurking Libertarian]

Last week, the United States Court of Appeals for the 11th Circuit upheld an Alabama ban on the sale of sex toys. Alabamians can still use, improvise, borrow (not recommended by Slate or its legal counsel), or import from out-of-state the latex items of their choosing. But as far as the court of appeals is concerned, the sale and advertising of "any device designed or marketed as useful primarily for the stimulation of human genital organs" can now get you up to a year of jail time and up to $10,000 in fines. Condoms and Viagra are exempted from the ban, as are whipped cream, anything sold at the Sharper Image, and Barry White CDs.

The court of appeals decided by a 2-1 vote to uphold the 1998 law, struck down twice by a lower court. Enforcement will begin shortly. The big fight comes down, very simply, to this: Does the Constitution protect, as a "fundamental right," private, consensual sexual activity that harms no one? The answer to this turns largely on how you choose to read Justice Anthony Kenndy's majestic-yet-inscrutable majority opinion in Lawrence v. Texas—the gay sodomy case decided two terms ago by the Supreme Court. Because clearly, Lawrence did one of two things: It either carved out a place in America's bedrooms that is free from police scrutiny, or it simply added one more choice (in this case, sodomy) to a limited menu of constitutionally protected intimate activities. The sad truth is that Lawrence tried to do both. As a result of this muddiness, judges on either side of the culture wars are reduced to playing interpretive games. All of which proves that everyone's a judicial activist when it comes to interpreting vague cases.

[Lurking Libertarian]

From the article:

"Sound legal arguments can be made in either direction after Lawrence. One version holds that the case changed everything; that even where it failed to explicitly announce a new fundamental right to sexual privacy, it nevertheless made it close to impossible for states to enact irrational sex laws based on vague claims about public morality. The alternative, and equally plausible, reading is that Lawrence expressly avoided getting to the question of whether there was a fundamental right to sexual privacy and that—mountains of lofty dicta notwithstanding—nothing has actually changed, except for a prohibition on sodomy prosecutions. The problem, of course, is that Justice Kennedy so mixed up the legal tests and fudged the standard of review in Lawrence that both positions are accurate."

[OSHA]

I know where this is headed.

[cripplecreek]

The court is abuzz with anticipation.

[yarddog]

For some reason this reminds me of the opening scene of "Not Just Another Teen Movie" If that is the correct name.

Sort of a raunchy movie that I would not recommend for that reason, but still it had it's funny moments.

[OSHA]

Assault with batteries.

[cripplecreek]

Shake rattle and roll.

[OSHA]

May have to conduct a probe.

[OSHA]

PING

[cripplecreek]

Lets just hope there isn't a stink raised as a result of the ptobe.

[tacticalogic]

Hysterical paroxysm bump.

[tpaine]

"One version holds that the case changed everything; that even where it failed to explicitly announce a new fundamental right to sexual privacy, it nevertheless made it close to impossible for states to enact irrational sex laws based on vague claims about public morality."

"The alternative, and equally plausible, reading is that Lawrence expressly avoided getting to the question of whether there was a fundamental right to sexual privacy and that—mountains of lofty dicta notwithstanding—nothing has actually changed, except for a prohibition on sodomy prosecutions."

______________________________________

Dahlia is wrong on both 'versions'..
We the people have always had a fundamental right to privacy, sexual or otherwise. The power to infringe upon our private acts has never been granted to ANY level of government.
States violate due process to enact irrational sex laws based on vague claims about public morality.

'Lawrence' expressly avoided getting to the question of whether there was a fundamental right to sexual privacy ~because~ nothing has actually changed, -- Prohibitions, - fiat decrees on private property or private acts, -- are repugnant to the principles of our Constitution.

[Larry Lucido]

The topic may arouse interest in Alabama, but won't have much penetration in legal circles elsewhere. The issues are kind of slippery to grasp.

[Americanwolf]

Literally I am assuming.

[Bronco_Buster_FweetHyagh]

any device designed or marketed as useful primarily for the stimulation of human genital organs

This is impermissibly broad - it will be struck down on grounds other than priacy grounds.

[OSHA]

I have to agree, but the ban is not on ownership or use, just sales and advertising.

[Americanwolf]

I say the whole case is self serving....people manipulating the courts for their own pleasure....It does bring a whole new ring to the saying "All Rise!"

[OSHA]

Where was it that a judge was utilizing such a device in the courtroom?

[Americanwolf]

Wasn't it in Oregon or somewhere out west.

[TruthShallSetYouFree]

So, let me see if I understand:

The Supreme Court, citing a Constitutional "Right to Privacy" has said that it is okay to have sex, get pregnant, and then murder the fetus at anytime prior to its full ememrgence from the birth canal. But, in Alabama, if you use a small electical device to massage a particularly private area of your body, you are subject to fine, imprisonment or both.

[TruthShallSetYouFree]

electical=electrical.

(I went to Electoral College.)