Yesterday---in honor of Valentine's Day?---the Eleventh Circuit upheld an Alabama law banning the commercial distribution of sex toys, or as the statute describes them, devices "primarily for the stimulation of human genital organs." (Read the opinion here.) This was the third time this case was before the 11th Circuit, with the same result each time. First, the court said the law survived rational basis review; then it said that despite Lawrence v. Texas, there is no fundamental right to sexual privacy; and then yesterday the court said that Lawrence also didn't undermine the conclusion that the law serves no rational basis. The 11th Circuit distinguished Lawrence on the ground that "while the statute at issue in Lawrence criminalized private sexual conduct," the Alabama law "forbids public, commercial activity." There's certainly something to that. Lawrence doesn't, for example, call into question laws that forbid prostitution (commercial) or having sex in a courtroom while it's in session (assuming there are such laws, which I certainly hope there are). But the Alabama law makes it a crime to sell sex toys even if done discreetly so as not to offend those with delicate sensibilities, and if there were no rational basis for banning sex toy use, then it would be difficult (albeit not impossible) to find a rational basis for banning their sale. So the distinctions the court drew don't necessarily do the work the court seemed to think.
More troubling, however, was the 11th Circuit's reliance on an additional line of argument. Lawrence, the court said, does not undermine the proposition that "public morality" can serve as the rational basis for a law. For that proposition, the court cited its own post-Lawrence decision in Lofton v. Sec’y of the Dept. of Children and Family Servs., upholding a Florida law that forbids same-sex couples from adopting children. Of the two cases, Lofton is obviously the more pernicious in its effects. The Alabama law does not treat anyone as a second-class citizen, while the Florida law pretty clearly does. Indeed, the Alabama law is not especially effective, since it can easily be circumvented by, among other things, internet purchases of sex toys.
Both cases raise a larger worry, however. Insofar as judicial rhetoric enters public debate, I fear that we will increasingly hear invocations of "morality" or "public morality" as a justification for various laws, especially those forbidding same-sex marriage. What the courts and those who will echo the courts' talking points mean by "morality" in such circumstances is really something like "tradition" or "religious values," but whereas "tradition" does not, by itself, sound like a justification for legislation, and "religious values" are, in a still nominally secular society, not supposed to be the sole basis for legislation, "morality" is a perfectly good basis for legislation. It is legitimate to prohibit theft, murder and rape because these are "immoral" acts. Of course, what we mean in saying that is that theft, murder and rape harm people, but by using the same word---morality---to condemn harm and to condemn non-traditional or religiously proscribed practices, those who would defend laws like Alabama's and Florida's can substitute a label for a reasoned argument.