MIRAMAR, Fla. – As you may have heard, Rep. Alcee Hastings (D-Fla.) caused a bit of a stir last week by referring to Texas as “a crazy state.” Tempering his comment somewhat by noting he loves Texans, Hastings also tried to limit the scope of his words by specifying what he doesn’t cotton to is the “policymakers who are in the majority” in the state. [A whole heap of gerrymandered-into-irrelevance Texans join him in that sentiment. -Ed.]
Predictably, some Texans took issue with Hastings’ comments, demanding apologies, firing back with comments of their own and in one instance, allegedly cancelling a trip to Florida’s Disney World.
As proof of his assertion concerning the collective mental state of Texas politicians, Hastings cited examples from state law, including one statute prohibiting the shooting of bears from second-story windows and another restricting the number of dildos a woman can possess under the law.
“One of their cities has a law that says that women can only have six dildos, and the certain size of things,” Hastings said. “And if that ain’t crazy, I don’t know what is.”
In fairness to The Lone Star State, the dildo law actually was overturned in 2008 by the Fifth Circuit Court of Appeals’ ruling in Reliable Consultants, Inc. v. Earle, in which the court held the law violated the 14[SUP]th[/SUP] Amendment to the U.S. Constitution. [The 14th Amendment includes “due process” and “equal protection” clauses. -Ed]
I’m not entirely sure whether it’s still illegal to shoot bears from a second-story window in Texas, nor am I clear why it would be preferable to shoot one from the ground floor, but as to Hastings’s concerns about the pleasure-product-possession rights of Texans, he’s about seven years behind the curve.
Rather than take Hastings to task over referencing “bad law,” however, I prefer to direct the man’s obvious passion for sexual privacy rights in a direction where it is still needed — by which I mean the state of Alabama.
Whether or not Alabama is “a crazy state,” it undeniably is a state where advertising dildos for sale remains illegal. Section 13A-12-200.2(a)(1) of the Alabama criminal code states in pertinent part: “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 anything of pecuniary value.”
A conviction makes the misdemeanor perpetrator eligible for a maximum fine of $10,000. The offender “may also be imprisoned in the county jail or sentenced to hard labor for the county for not more than one year.”
Alabama reserves stiffer penalties for repeat offenders under its dildo ad ban, with subsequent violations resulting in a Class C felony, punishable by a fine ranging from $10,000 to no more than $50,000.
What makes the continued existence of the Alabama statute even harder to fathom is that it has not gone unchallenged since it was enacted in 1998. In fact, a district court invalidated the statute at one point, only to have its decision overturned by the 11[SUP]th[/SUP] Circuit Court of Appeals in 2004.
In effect, the 11[SUP]th[/SUP] Circuit declined to follow in the footsteps of some other courts and find a Constitutional right to “sexual privacy” or a corresponding right to “sexual intimacy,” in part due to concerns about the unclear scope and ramifications of finding such rights exist.
“If we were to accept the invitation to recognize a right to sexual intimacy, this right would theoretically encompass such activities as prostitution, obscenity, and adult incest — even if we were to limit the right to consenting adults,” stated the majority opinion. “In short, by framing our inquiry so broadly as to look for a general right to sexual intimacy, we would be answering many questions not before us on the present facts.”
Ultimately, the court concluded the proper forum for overturning the law in question was Alabama’s state legislature — or perhaps more directly, by voter referendum.
“If the people of Alabama in time decide that a prohibition on sex toys is misguided, or ineffective, or just plain silly, they can repeal the law and be finished with the matter,” the decision noted. “On the other hand, if 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.”
It’s worth noting that while officials in both Texas and Alabama have indeed defended their state’s (possibly crazy) bans on dildo sales and/or multiple dildo-possession, so too have legislators from each state attempted to have those bans overturned.
As such, maybe the most we can definitively say of the collective mental condition of Texas and Alabama (or any other state we choose to judge on the basis of its laws or legislators) is they are part crazy — and in Alabama’s case, it’s arguably the court that has enabled the continued insanity, more than any policymaker who happens to be in the majority at the moment.
Will the citizens of Alabama ever do as the 11[SUP]th[/SUP] Circuit suggested and take action to repeal the ban on selling sex toys?
Perhaps a better question: Since it’s already lawful to possess dildos in Alabama, and it’s not illegal to purchase dildos in other states and transport them across state lines into Alabama, and it’s not illegal to transport dildos within the state, either… What is the point of this law, exactly?
If you were hoping the court provided a good answer to this question, I think you’ll be disappointed. According to the 11[SUP]th[/SUP] Circuit, “the promotion and preservation of public morality” is the rational basis on which the dildo ban rests.
That’s right, folks: The same state that didn’t desegregate its schools until the federal government forced it to do so at gunpoint, a state that had a government infested with high-ranking members of the Ku Klux Klan for decades, the state that serves as home to the totally not racist Council of Conservative Citizens has an absolute right to “promote and preserve public morality” by banning the sale of dildos.
That’s not crazy, right?
