Adult retailer Sherri Williams, of the Pleasures store chain, once again has had her bust for the sale of non-prescribed vibrators remanded to the U.S. District Court for the Northern District of Alabama, which has twice found in her favor. There were nine other co-defendants, though not all were involved in the current appeal.
In a 2-1 decision that largely ignored the implications of substantive due process rights in the U.S. Supreme Court’s landmark decision in Lawrence v. Texas, Judge Stanley F. Birch, Jr., writing for the U.S. Court of Appeals for the 11th Circuit, essentially accused the trial court of waffling on the question of whether citizens had a fundamental right to use sexual devices.
The appeals court noted that the trial court, Judge Lynwood Smith, Jr., had “concluded that there was no currently recognized fundamental right to use sexual devices and declined the ACLU’s invitation to create such a right,” but that after the case had been remanded for the first time, “[a]fter a lengthy discussion of the history of sex in America, the district court announced a fundamental right to ‘sexual privacy,’ which, although unrecognized under any existing Supreme Court precedent, the district court found to be deeply rooted in the history and traditions of our nation.”
Judge Birch then spent 40 pages attempting to explain what that view was incorrect, often referring to a 1997 U.S. Supreme Court decision, Washington v. Glucksberg, involving assisted suicide, which Judge Birch used to draw a fine (some would say non-existent) line between the private ownership and use of sex toys and the sale of same.
However, Judge Rosemary Barkett, writing in dissent, proclaimed that the case was about far more than selling vibrators.
“This case is not, as the majority’s demeaning and dismissive analysis suggests, about sex or about sexual devices,” wrote Judge Barkett, who penned the excellent opinion in the Peek-A-Boo Lounge case last year. “It is about the tradition of American citizens from the inception of our democracy to value the constitutionally protected right to be left alone in the privacy of their bedrooms and personal relationships.”
That the majority’s analysis was “demeaning and dismissive” was obvious even from a cursory reading of their opinion.
“The ACLU invokes ‘privacy’ and ‘personal autonomy’ as if such phrases were constitutional talismans,” wrote Judge Birch. “In the abstract, however, there is no fundamental right to either.”
“Undoubtedly, many fundamental rights currently recognized under Supreme Court precedent touch on matters of personal autonomy and privacy. However, ‘[t]hat many of the rights and liberties protected by the Due Process Clause sound in personal autonomy does not warrant the sweeping conclusion that any and all important, intimate, and personal decisions are so protected’,” Judge Birch continued, citing the Glucksberg case. “Such rights have been denominated ‘fundamental’ not simply because they implicate deeply personal and private considerations, but because they have been identified as ‘deeply rooted in this Nation’s history and tradition and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.’”
However, as Judge Barkett pointed out, “Lawrence reiterated that its prior fundamental rights cases protected individual choices ‘concerning the intimacies of [a] physical relationship’ Because of this precedent, the Lawrence Court overruled Bowers [v. Hardwick, the original case criminalizing private homosexual conduct], concluding that Bowers had ‘misapprehended the claim of liberty there presented’ as involving a particular sexual act rather than the broader right of adult sexual privacy. Instead of heeding the Supreme Court’s instruction regarding Bowers’ error, the majority repeats it, ignoring Lawrence’s teachings about how to correctly frame a liberty interest affecting sexual privacy.” [citations deleted here and below]
“Compounding this error, the majority also ignores Lawrence’s holding that although history and tradition may be used as a ‘starting point,’ they are not the ‘ending point’ of a substantive due process inquiry,” Judge Barkett recognized. “In cases solely involving adult consensual sexual privacy, the Court has never required that there be a long-standing history of affirmative legal protection of specific conduct before a right can be recognized under the Due Process Clause. To the contrary, because of the fundamental nature of this liberty interest, this right has been protected by the Court despite historical, legislative restrictions on private sexual conduct. Applying the analytical framework of Lawrence compels the conclusion that the Due Process Clause protects a right to sexual privacy that encompasses the use of sexual devices.”
The majority in this case is apparently more conversant with Justice Antonin Scalia’s dissent in Lawrence than it is with Justice Anthony Kennedy’s holding, since the issue of whether religious morality is a proper basis for criminal law comes up several times in the majority opinion.
“The dissent also flatly states that the Lawrence Court rejected public morality as a legitimate state interest that can justify criminalizing private consensual sexual conduct,” Judge Birch stated, “but this conclusion ignores the obvious difference in what this statute forbids and the prohibitions of the Texas statute. There is nothing ‘private’ or ‘consensual’ about the advertising and sale of a dildo. And such advertising and sale is just as likely to be exhibited to children as to ‘consenting adults.’... One would expect the Supreme Court to be manifestly more specific and articulate than it was in Lawrence if now such a traditional and significant jurisprudential principal has been jettisoned wholesale (with all due respect to Justice Scalia's ominous dissent notwithstanding).”
This distinction ignores the fact that the form of such advertising can be regulated without the mere act of selling made illegal, but more fundamentally, it ignores the entire history of the legalization of sexually explicit speech, where the Supreme Court has held time and time again that the right to own something – say, hardcore porn – fundamentally implicates the right of someone to sell that material, assuming the sale of the material does not violate local community standards – but neither side has presented any evidence in this case on that score.
Judge Birch spends a long footnote reciting several decisions where the Supreme Court has blessed the idea of protecting ‘the social interest in order and morality’ – but no case cited is less than a decade old (Barnes v. Glen Theater, a 1991 nude dancing case, is the newest) and most are from the early ‘70s or before. The Supreme Court, however, in its Lawrence decision, reversed the 1986 Bowers ruling, obviously recognizing that society’s vision of sex and society had changed radically in just 17 years.
Judge Barkett, however, is right on top of the Supreme Court’s moral “evolution,” quoting that seminal sexual privacy case, Roe v. Wade: “‘Where certain fundamental rights are involved, the Court has held that regulation limiting these rights may be justified only by a compelling state interest’ and that such legislation ‘must be narrowly drawn.’”
Moreover, “The Lawrence Court noted in its opinion that it had granted certiorari specifically to consider ‘[w]hether Petitioners’ criminal convictions for adult consensual sexual intimacy in the home violate their vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment?’” she wrote, adding her own emphasis. “In resolving this issue of whether the petitioners were ‘free as adults’ to engage in ‘private [sexual] conduct,’ the Court retraced its substantive due process jurisprudence by discussing the fundamental rights cases of Griswold, Eisenstadt, Roe, and Carey and emphasized the breadth of their holdings as involving private decisions regarding intimate physical relationships.”
“In light of the Court’s conclusion that its prior decisions in Griswold, Eisenstadt, Carey, and Roe had already made ‘abundantly clear’ that adults have a right to make intimate decisions about their sexual relationships, the majority cannot seriously maintain that this dissent ‘never identifies’ a precedential source of the right to sexual privacy,” Judge Barkett concluded.
According to reports, Sherri Williams has vowed to pursue this case further, though whether it will be at the district court level, where Judge Smith is likely to rule in her favor yet again, albeit on different grounds in keeping with the appeals court’s majority decision here, or whether she will attempt a direct petition to the U.S. Supreme Court, citing errors of law in the current appellate opinion. Should she attempt the latter course, and the Supreme Court were to accept certiorari, it seems likely that the high court would come down in her favor by the same margin it favored Lawrence.
As they say, it ain’t over till it’s over.
