WASHINGTON, D.C. – The Supreme Court today refused without comment to consider a case that could have overturned an Alabama state law that bans the sale of many different kinds of sex toys. The Alabama law, enacted in 1998, bans the sale of any device whose primary function is the stimulation of the human genitals. There are exceptions for devices that can be shown to have medical or therapeutic value. The law was challenged by the American Civil Liberties Union on behalf of both retailers and their customers.”The sexual devices covered by the statute have many recognized beneficial uses and are used by consenting adults in deeply private acts that are beyond the reach of government regulation,” read the filing that opposed the Alabama law.
According to attorney Reed Lee of J.D. Obenberger and Associates, the case challenging the Alabama sex toy ban is far from over. Lee said that the Supreme Court probably rejected hearing this case because there are more angles that need to be explored at a lower court level.
“I know it’s agonizing for [the ban opponents], but the Supreme Court tends to like to take cases when they’re finished, and this one isn’t done,” explained Lee. “All that means is they didn’t want to pull it from the trial court at this time.”
“We’ll never get any of the inside reasoning, but we can speculate that they just thought that that wasn’t enough to take this at this procedural time. But the case isn’t over yet.”
Lee cautioned that the refusal shouldn’t be read as the Supreme Court’s approval of the Alabama sex toy law.
“There is no indication that anybody on the Supreme Court thinks that the 11th Circuit case is rightfully decided,” Lee told YNOT.
Opponents of the sex toy ban had used the Supreme Court’s previous decision in Lawrence v. Texas, the successful challenge to a Texas sodomy law, to argue against the Alabama sex toy ban. Those arguments were rejected by the 11th Circuit Court of Appeals last July. Adult industry attorney Louis Sirkin also used the Lawrence v. Texas decision in his defense of adult film makers Extreme Associates on charges of obscenity, however Sirkin’s arguments won a dismissal of all charges against Extreme Associates last month; the United States Justice Department has appealed that case to the 3rd Circuit Court of Appeals.
According to Lee, the Lawrence decision should have been considered more carefully when the 11th Circuit Court of Appeals decided the constitutionality of the Alabama sex toy ban.
“It’s awfully hard to see how the statute prohibiting sodomy can be unconstitutional without what seems to be a lesser government interest supporting the sex toys law also being unconstitutional,” said Lee.
According to Lee, the Supreme Court’s refusal to hear the Alabama sex toy ban challenge does not hurt the scope of the Lawrence decision. Even if the scope was somehow limited in the future, Lee says there are other First Amendment protections that would protect erotic speech.
“The use of Lawrence in Extreme Associates was very, very limited and unnecessary,” said Lee. “There are solid First Amendment arguments that can do the same work in Extreme Associates as Lawrence did, so I’m not so much worried about Extreme Associates on this ground.”
Attorney Eric Bernstein from Eric M. Berstein and Associates also agreed that the Supreme Court’s refusal to hear the challenge was not a particularly telling development.
“We can’t tell anything from this, nor should we,” Bernstein told YNOT. “It doesn’t change the Lawrence v. Texas decision at all. It may be of some guidance under some situations relative to what the 11th Circuit may or may not allow to occur or not to occur, but frankly I think all of these cases are turning on individual fact patterns. I think they always have and they always will.”
The case is Williams v. Alabama, 04-849.
