Thursday, February 15, 2007

No Valentine's Day Sex Toys in Birmingham

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.


Caleb said...

I think the problem might run deeper than that. While I cannot speak on their behalf (and I should say that I don't sympathize with their arguments), groups that oppose the sale of sex toys on "moral" grounds might very well feel that using them "harms" people.

While it's easy to dismiss those arguments as baseless (How could it really harm anybody?), I think we're still making assertions based on our own beliefs. (I think I could come up with an internally coherent - if rather tenuous - argument for why selling sex toys "harms" people).

If we try to draw a distinction between "immoral" activity that doesn't harm people and that which does, it seems to me that we'll run into problems with borderline cases (what is a moral/non-harmful age of consent?).

All this to say that we have a category of activity we clearly wish to prohibit (murder, rape, etc) which can be described as immoral or harmful, and a category which we clearly do not wish to (and probably should not) prohibit which can ALSO be described as immoral or harmful. At the moment, however, I don't have any better suggestions for distinguishing between the two other than Holmes' acquiescence to the public sentiments.

Adam P. said...

Two quick things, since I havent read the whole opinion yet, though I have some knowledge about the oral arguments...
1) I think it's telling that the Appellants are referred to as "the ACLU", repeatedly, reflecting a strong bias against the New York based attorneys on the case.

2) I think if the argument was that sex toys harm people, I think rational basis review would have been much tougher on the state. Murder, rape, etc. affect individuals other than the perpetrator- sex toys only "harm" sense of morality. There is no way that a sex toy can harm someone when used consensually (barring malfunction or improper usage- which again- is not what the state claimed here.)
What's also far stupider about the underlying facts here- you can sell a "Massage stick" or a "Vibrating peg" in Alabama...

3) "Animus" or the naked desire to subordinate can easily be disguised as "morality". If we only accept judeochristian "morals", which the 11th circuit would seem to be okay with,we obviously violate 1st Amendment sensibilities.

Adam P. said...

Oh, and also the essentiality of the 11th Cir.'s opinion seems to suggest that if this was a simple ban of sex toy USE it could be ok. If morality is the issue, there's no reason to ban sale but not use. Of course, the sexual privacy jurisprudence would seem to make that easily struck down.

egarber said...

In response to caleb:

"At the moment, however, I don't have any better suggestions for distinguishing between the two other than Holmes' acquiescence to the public sentiments."

I think it depends on where one thinks the burden lies.

If privacy is an inherent right (as I believe), then the state bears the burden of proving some compelling interest to deny it. Preventing or punishing murder easily falls into an area where the state can win under this test.

But in instances where it’s highly debatable whether any “harm” has taken place, imo courts should err on the side of individual liberty (within the rights “retained by the people”), not government power.

The criticism of my approach is that you end up with judges who supposedly “cherry-pick” rights. But to a large degree, I think that’s more a framing issue than anything else. If this law is ultimately defeated in court, it will likely be because, 1) the general zone of personal privacy was implicated, and 2) the state couldn’t make a strong enough case to limit said activity. Some of course would frame such a result as a “judge having decided that we all have a constitutional right to have sex toys.” But to me, that’s using narrowness as an opportunistic tool – kind of like if I said a ruling defending the first amendment was about a judge who likes pornographers.

The commercial nature of the activity (governments are typically given a lot of leeway in commerce regulation) certainly makes this case different than say, consensual sex. But I think if individual liberty is to really mean something, there has to be a powers-constraint component to the bill of rights.

Of course, if privacy is kind of like a big lake (as I think), you still have the problem of defining the shoreline. But you know, if judges go “too far” in extending it, we’ve at least erred in the right direction. And the constitution can be amended, as we all know.

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