Via Feministing, the Eleventh Circuit has upheld an Alabama law banning the sale of “any device designed or marketed as useful primarily for the stimulation of the human genital organs.” The court’s argued that, though the Supreme Court’s decision in Lawrence v. Texas struck down state laws against consensual sodomy as infringements on the right of sexual privacy, the Alabama statue targets the public, commercial sale of vibrators and other fun objects, which the court likens to prostitution.
This is very hard to make sense of. Two of the seminal privacy cases of the last century— Griswold v. Connecticut and Eisenstadt v. Baird—involved contraceptives, which were publicly sold and distributed commodities. So it seems clear that when some activity is implicated in the right of sexual privacy, the fact that it necessarily includes some public component—in this instance the dissemination or commercial sale of contraceptives to be used in the privacy of the home—cannot provide a pretext for gutting the right. Really, in light of Griswold and Eisenstadt, the key question would seem to be, not whether the state may thrust the camel’s nose of regulation into the commercial tent-flap (no!), but whether the liberty interest in dildoes really belongs in the same category as contraception, given that the former do not seem to be something “so fundamentally affecting a person as the decision whether to bear or beget a child.” But Lawrence seems to draw a pretty wide circle around the bedroom:
The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.
Now if you just look at Lawrence, you might think (as the Eleventh Circuit seems to have) you could use get some leverage by way of this private conduct/public commerce distinction. But if instead you focus on Griswold in light of Lawrence, with the latter clarifying the scope of the sexual liberty protected in the former, this seems a lot tougher sell.
The Circuit Court also leans heavily on the notion that Lawrence “declined” to create a fundamental right to sexual liberty, meaning that the Alabama law need not be justified by the “compelling state interest” that would be required under the “strict scrutiny” triggered by such a right. Instead, it may be upheld if any “rational basis” for the statue can be imagined. Weirdly, their main citation in support of this reading comes not from the Lawrence majority, but from Scalia’s dissent.
Now, it’s true that Lawrence doesn’t explicitly make any reference either way to the whole messy multi-tiered edifice of “strict scrutiny” vs. “intermediate scrutiny” vs. “rational basis” analysis. But it is exceedingly hard to read Lawrence—including the language quoted above—and conclude that the sexual liberty they’re talking about can be trumped by any “rational basis.” By that extremely deferential standard, surely sodomy bans would have been upheld: It would have been enough to claim (say) that legislatures were motivated by the worry that sexually transmitted diseases could be more readily spread by anal sex. And given how weak “rational basis” analysis is, that should have done it, even in the absence of any empirical evidence that such laws actually reduce STD rates, since at that level of scrutiny, such determinations are simply left to the legislatures.
My initial thought here was that the Eleventh Circuit would have been on much more solid ground distinguishing on the basis of the seriousness of the liberty interest infringed: Intuitively, saying that a gay person may not have sexual relations with anyone they’re attracted to is a rather more severe imposition than making it hard to buy a vibrator. But on reflection, that would not have done much better. First, the court in Lawrence explicitly declined to make their ruling about identity—about fairness to homosexuals. Rather, the liberty specified in the ruling just covers the freedom of any couple to decide the sort of sex they’d like to have. And it’s not obvious that barring a couple from engaging in a specific set of sexual acts involving their own body parts (while permitting others) is more onerous than barring a set of acts involving other accouterments. There are doubtless plenty of couples who aren’t especially interested in (say) anal sex, but make extensive use of various toys in the bedroom. More to the point, a distinction of the sort I initially considered would put the courts in the position of deciding on a case-by-case basis which forms of consensual sexual liberty were “serious” and which were not—and however interesting the footnotes that might be produced under such a system, it doesn’t sound like a terribly desirable state of affairs.