'Obscene' Devices Head for the Supreme Court

WASHINGTON - You know a case is ripe for Supreme Court review when the retelling of its history cites lower court decisions labeled "Williams I," "Williams II," "Williams III," "Williams IV" and "Williams V."

The "Williams," of course, is Sherri Williams, who along with eight co-petitioners is seeking to overturn Alabama's obscene device law, which in Williams' case would prevent her from selling and/or distributing any sex toy intended primarily for the stimulation of humans to orgasm in the privacy of their own homes.

It's that "privacy" that matters, at least in two of the three questions posed in Williams' petition for writ of certiorari, the official request for the U.S. Supreme Court to decide her case. She asks, "Did the Eleventh Circuit Court of Appeals employ an insufficient constitutional analysis when it erroneously upheld an Alabama sexual device law that impermissibly burdens consensual private conduct that is protected by the Due Process Clause of the Fourteenth Amendment to the same extent as the private sexual conduct that was at issue in Lawrence v. Texas, 539 U.S. 558 (2003)?" And, "Can a public morality rationale alone ever justify government intrusion into personal decision-making concerning private sexual conduct?"

At least as to that second question, Williams has an interesting argument to present. No less than arch-conservative Associate Justice Antonin Scalia agreed that with the high court's Lawrence decision, "morality" was out the window, or at least "called into question," as a legitimate governmental interest in adult sexual matters.

"Countless judicial decisions and legislative enactments have relied on the ancient proposition that a governing majority's belief that certain sexual behavior is 'immoral and unacceptable' constitutes a rational basis for regulation," wrote Scalia in his dissent in Lawrence. "State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers' validation of laws based on moral choices. Every single one of these laws is called into question by today's decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding."

"Bowers" is Bowers v. Hardwick, the case specifically overturned by the Lawrence decision ... and as "luck" would have it, one of the cases Scalia cites for which Bowers is the underpinning is ... Williams v. Pryor, now Williams v. King, the case that started Ms. Williams down her road to the Supreme Court.

So ... since the basis for the original adverse Williams decision was Bowers, and since Lawrence specifically overturned Bowers, shouldn't that mean a slam-dunk for Williams in Williams?

Probably ... and no doubt would be, if the often-rational Chief Justice William Rehnquist and Associate Justice Sandra Day O'Connor hadn't been replaced by arch-conservatives Chief Justice John Roberts and Associate Justice Samuel Alito. It also seems likely that Scalia, who has undoubtedly often regretted the honesty he expressed in his Lawrence dissent, will find some way to rationalize enough differences between Williams and Lawrence to uphold a governmental interest in "morality" even in the post-Lawrence world.

Moreover, there is much of interest in the lower court opinions in Williams, which petitioners recount here. That includes the district court's findings that "any legitimate interest Alabama might have in banning public displays of obscene material does not support a far-reaching restriction that criminalizes the sale of sexual devices in wholly private settings"; and that "the state's purported interest in stemming the alleged evil of 'commerce in sexual stimulation and auto-eroticism, for its own sake, unrelated to marriage, procreation, or familial relationships,' is not rationally advanced by [the] Alabama Code" because while the statute bans the distribution of devices, it does not ban actual commerce in sexual activities – that is, people can still own and use the devices for sexual stimulation – and because therefore, the ban does interfere with "sexual stimulation and auto-eroticism which is related to marriage, procreation, and familial relationships." And finally, since vibrators and dildos "express nothing," they can't be "obscene."

On the state's first appeal, the Eleventh Circuit "rejected the District Court's conclusion that the statutory prohibition of the distribution of sexual devices did not have a rational basis," ruling that the state had a "legitimate ... interest in public morality," and that the ban on distribution of the devices was legitimate because if people couldn't buy them in local stores or at house parties, it would make it harder for the citizenry to acquire and use the devices, and that was somehow a Good Thing. However, the appeals court kicked the case back to the district court to consider the question of how the statute might "implicate different and important interests in sexual privacy" under the Supreme Court's ruling in Washington v. Glucksberg.

What the district court took from that was an investigation into "whether our nation has a deeply rooted history of state interference, or state non-interference, in the private sexual activity of married or unmarried persons [or] whether contemporary practice bolsters or undermines any such history." The court concluded that states generally didn't prosecute couples, married or unmarried, even for engaging in "consensual sexual activities" that were illegal; and that vibrators have been around for a long time, have a long history of use by physicians – anybody remember that dreaded affliction, "the vapors"? – and are easily obtained in stores in the 47 states that don't have obscene device statutes, not to mention by mail-order and Internet purchases. In sum, the district court found that the Alabama statute "impermissibly burdened plaintiffs' right to sexual privacy by prohibiting distribution of sexual devices."

Back to the appeals court! That court acknowledged that "[f]or purposes of constitutional analysis, restrictions on the ability to purchase an item are tantamount to restrictions on the use of that item" ... but that didn't matter, because such use wasn't a "fundamental right" under the criteria set down in Glucksberg. However, since Lawrence v. Texas had been decided while this second appeal was before the Eleventh Circuit, the court remanded the case once again, this time in order that the district court could "consider the impact of Lawrence's explicit overruling of Bowers v. Hardwick."

So now the case was before District Court Judge Lynwood Smith for the third time, and he apparently got the message that no matter how many times he ruled in favor of the plaintiffs, he would be overturned by the Eleventh Circuit ... and no judge likes to have a lot of reversals on his/her record. So he granted summary judgment this time for the state, ruling that "the holding in Williams II — that the subject Alabama statute has a rational basis (e.g., public morality) — remains 'good law,' even though Bowers v. Hardwick has been overruled." See, unlike this case, Lawrence supposedly upheld the rights of a "stigmatized class of individuals" (gay males) who were being prevented by Texas law from performing certain sexual acts (sodomy) that heterosexual couples could perform with impunity, so there was no "rational basis" for the Texas statute, and according to the Eleventh Circuit, the Supremes never got into the "fundamental rights" analysis set forth in Glucksberg. The district court therefore decided that apparently, the group of people who use dildos, vibrators and artificial vaginas for sexual stimulation is so vast and diverse that Lawrence shouldn't (or at least didn't) apply to them.

The Eleventh Circuit (of course) agreed, saying that "[t]o the extent Lawrence rejects public morality as a legitimate government interest, it invalidates only those laws that target conduct that is both private and non-commercial." Selling vibrators, being an "inherently public activity," therefore somehow evades Lawrence's proscription on the state attempting to regulate private sexual conduct. In a sense, it's similar to the Third Circuit's rejection of the dismissal of obscenity charges against Extreme Associates, and points up the fundamental disconnect between the Supreme Court's approval in Stanley v. Georgia of private ownership of obscene material and all of its succeeding cases, where it upheld the power of the state to prosecute those who sell such "obscene material": That in order to own an "obscene" book, video or device, one usually has to buy that item; most people don't manufacture their own "obscenity."

The petitioners here, however, see the most recent ruling as "applying a diluted constitutional standard" which guts the clear message of Lawrence that the state should stay out of regulating people's private sexual activities – and those private sexual activities are bound to be affected (if not completely curtailed) if people can't easily buy (and Alabama retailers can't sell) the devices with which they carry out those private sexual activities.

The basis of Lawrence is the Fourteenth Amendment's due process clause, which states, "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." It's this amendment that applies the Bill of Rights to state law – and certainly one of the most important but little-discussed of those rights is #9: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." If there were ever a basis for the state (and feds) staying out of people's bedrooms when they're doing the bouncy-bouncy (even if with a vibrator), that's it!

Or as Williams' petition puts it, "Such a law, predicated on conceptions of public morality enforced by the state through the criminal code, derogates ["detracts from"] important personal privacy protections recognized by Lawrence as substantive due process rights."

The petition then promptly points up the "fundamental disconnect" noted above:

"Ruling that Lawrence is distinguishable from the instant case on the ground that the Alabama law restricts public, commercial activity, not private sexual conduct, the Eleventh Circuit ignored its obligation to evaluate petitioners' substantive due process rights in the context of those cases where it has been recognized that '[f]or purposes of constitutional analysis, restrictions on the ability to purchase an item are tantamount to restrictions on the use of that item.' ... The Court of Appeals' failure to employ the appropriate constitutional analysis of petitioners' due process claims resulted in the court's erroneous rejection of Lawrence as the governing rule in this case, and the denial of constitutional privacy protection for the most intimate and private activities of adults in Alabama."

The petition then quotes the Lawrence holding, which adopts the words of Justice John Paul Stevens' dissent in Bowers:

"Our prior cases make two propositions abundantly clear. First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from attack. Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of 'liberty' protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons."

What's clear from the various Eleventh Circuit opinions in this case is that that court was desperately trying to uphold Alabama's quest to conform private "morality" to the state's own notions of same, and willing to contort the clear holding of Lawrence to do it:

"Inexplicably, when the Court of Appeals revisited the Lawrence issue on the latest appeal after the case was remanded to the District Court for consideration of the impact of Lawrence on the rational basis analysis of the challenged statute, it completely ignored the burdens imposed on an individual's use of sexual devices by a ban on the sale of such devices," the petition reads. "Indeed, not only did the court ignore what it had previously acknowledged as a crucial part of the constitutional analysis, but it actually highlighted the sale of sexual devices as a reason to distinguish Lawrence from the instant case. In essence, the Court of Appeals pointed out in one decision that a privacy right to use sexual devices cannot be denied merely because the state desires to eliminate their commercial availability, and in its next decision in the same case proceeded to do just that— reject the privacy protections of Lawrence precisely because the Alabama law prohibits commerce in sexual devices ... A correct analysis of Alabama's prohibition of the commercial distribution of sexual devices would have recognized that the public sales ban directly burdens the private use of such devices ... and that the user's liberty interest with respect to the private use of sexual devices is indistinguishable from the liberty interest protected in Lawrence."

The "morality" issue is also central to Williams' argument that a state's attempted promotion of "a public morality rationale" cannot justify governmental intrusion into people's personal decision-making concerning private sexual conduct:

"The only justification offered by the State of Texas for its homosexual sodomy law was promotion of public morality. The Lawrence Court dismissed the idea that a public morality concern was sufficient to authorize the state to regulate the private sexual practices of consenting adults ... Similarly, the only justification for Alabama's statute prohibiting distribution of sexual devices is 'promotion and preservation of public morality'."

The law rarely gets more "on point" than that!

Finally, Williams argues that even if personal sexual liberty isn't a "fundamental right," as some (like "traditionalist" Scalia) would claim, a rational basis analysis still leads inevitably to the same conclusion:

"[A] better reading of Lawrence is that the Due Process Clause protects certain liberties from unjustified or unduly burdensome government intrusions — including those liberties that do not necessarily fall within the limited category of 'fundamental rights'."

The petition notes that Lawrence doesn't employ the usual verbiage associated with a rational basis analysis, such as affording the Texas statute "a strong presumption of validity" or requiring the plaintiffs to "negate every conceivable basis" by which the anti-sodomy statute could be upheld. Also missing from Lawrence are common "rational basis" words such as "arbitrary" and "irrational."

"Instead," petitioners argue, "the Lawrence court held that Texas' purported interest in public morality 'furthers no legitimate state interest which can justify its intrusion into the personal private life of the individual.' Rational basis review simply does not consider such factors. Traditional rational basis analysis does not inquire as to whether the government's interest is sufficient to justify the limitation on the individual. Rather, the test is only whether the law might rationally promote a legitimate purpose ... The language used by the Court in Lawrence suggests that it is a 'protected liberty' case (versus a 'fundamental rights' case) in which state interests are balanced against the liberty interests of the individual."

The "protected liberty" concept seems somewhere in-between the "strict scrutiny" analysis afforded to cases involving fundamental rights (like free expression) and the "rational basis" analysis employed when the claimed violations are less fundamental. However, Williams suggests that this "new" level of analysis has been employed by the high court for some time.

"In this case, as in Lawrence, the only interest recognized by the Eleventh Circuit in support of Alabama's prohibition of the commercial distribution of sexual devices is public morality," Williams' petition concludes. "The challenged law, as in Lawrence, burdens private sexual intimacy between consenting adults. Further, like Lawrence, this case does not involve minors, persons who might be coerced or injured, public sexual conduct, or prostitution. Consequently, just as public morality was insufficient to justify the burden placed on individual liberty by the sodomy law challenged in Lawrence, the public morality justification asserted in support of the Alabama statute does not outweigh the burden imposed on the protected liberty interest of individuals in making personal decisions regarding how they will conduct their private and intimate sexual lives."

Williams' petition was filed one week ago, and the state of Alabama will have 45 days within which to file a response, as will the various amici who undoubtedly will weigh in on this issue, Free Speech Coalition among them. Certainly, the entire adult industry will be waiting anxiously for the Supreme Court's decision as to whether to take this immensely important case.