SANDY SPRINGS, GA—Anyone remember Sherri Williams? She was proprietress of the adult retail chain Pleasures, which had several stores across Alabama, a state where the sale of adult novelties—or as they're more commonly known, "sex toys"—was (and is) illegal absent a doctor's "permission slip." Williams spent 10 years in court trying to get the toys legalized so she could sell them to any adult, until her quest was quashed when the U.S. Supreme Court refused to accept her appeal in October 2007. She put her stores on the market the following year.
In the final appeals ruling in Williams v. King, an Eleventh Circuit panel opined that states have a "legitimate rational basis" for banning the advertising and sale of certain sexual devices in that such ban would "preserve public morality"—even though the neighboring Fifth Circuit, in 2008, came to the opposite conclusion.
And now, sex toys are in the news again, this time due to a lawsuit filed last year by Atlanta-based adult outlet Flanigan's Enterprises, where the U.S. District Court for the Northern District of Georgia allowed Kennesaw resident Melissa Davenport and Atlanta artist Marshall Henry to become Intervenors in the suit, which names the City of Sandy Springs as the defendant.
The case revolves around Sandy Springs Ordinance §38-120(d), which is found in the chapter "Obscenity and Related Offenses," which itself is part of the section titled "Offenses Involving Public Morals." The specific text states that, "[a]ny device designed or marketed as useful primarily for the stimulation of human genital organs is obscene material." The law prevents retailers from selling such devices, and the only defense against such a charge, according to the ordinance, is if "that selling, renting, or leasing the material was done for a bona fide medical, scientific, educational, legislative, judicial, or law enforcement purpose."
(A humorous "analysis" of how those "bona fide purposes" could relate to vibrators can be found here.)
Melissa Davenport probably should fall under the "medical" exception, since Davenport suffers from multiple sclerosis, and according to her lawsuit, "By approximately 2003, Davenport and her husband had largely ceased sexual intimacy because the quality of their intimate sexual relations was negatively impacted by the progression of her MS. Davenport’s sexual intimacy was impacted because sexual arousal begins in the central nervous system, where MS strikes. The disease can damage nerve pathways to the sexual organs. Sexual response, including arousal and orgasm, can be directly affected. In addition, spasticity and fatigue impact sexual intimacy for persons with multiple sclerosis."
"It had started to really tear us apart," Davenport, 44, told Atlanta TV station WSB. "The nerve pathways interfered with the nerves going to my intimate area to where I had no feeling ... People really do need devices because they need it for health reasons and to have a healthy intimate life with their spouse."
Marshall Henry, on the other hand, simply wants to use the devices for his own pleasure, though he has used them before in art displays, and would like to do so again in the future. Henry is also barred from selling his sexual-device artwork because the works feature the devices, which are illegal to sell for artistic purposes under the ordinance.
However, loss of sexual intimacy isn't a medical reason to use the toys, and Davenport can't get a doctor to prescribe them for her; hence the lawsuit. (She'd also like to be able, legally, to sell the toys to others, as she currently does on the down-low.)
The Intervenors' argument is largely based on the Fourteenth Amendment, which "grants an interest in and a right to privacy and to liberty," and the suit charges that "The Sandy Springs Ordinance significantly, substantially, and needlessly infringes on Plaintiffs’ interests in and rights to privacy and liberty."
"Plaintiffs have a right to be free from governmental intrusion regarding the most private human conduct: their consensual sexual behavior in the privacy of their own homes," the lawsuit states.
The plaintiffs also charge that the ordinance does not support a "compelling state interest," and to the extent that it might, it is "not narrowly tailored to serve that interest." Henry also claims a First Amendment right to use the devices in his artwork, noting that the devices cannot be "obscene" since they do not comport with the Supreme Court's Miller test for obscenity.
Finally, the Intervenors charge that, "Plaintiffs have a liberty of privacy guaranteed by the Georgia Constitution that includes private, intimate, consensual sexual activity between consenting adults. This right to privacy is a fundamental constitutional right," which is "even more extensive and protective of the state’s citizens than its federal analog."
The lawsuit is made all the more poignant since the Georgia Supreme Court's recent ruling that any citizen can legally carry his/her gun pretty much anywhere in the state, including "bars, nightclubs, school classrooms and certain government buildings," while those same people can't use a sex toy to help with their orgasms—a situation which the Intervenors' attorney Gerry Weber called "ironic" and "absurd."
"People have the right to decide for themselves whether these devices help their intimate life, and the government has no business being the bedroom and second guessing that decision," Weber stated.
It is unclear when the lawsuit will go to trial. The text of the Intervenors' pleadings can be found here.
