Gender, Sexuality and Law:
The Great Dildo Hunt (or, Comstock’s Revenge)
Harper Jean Tobin
Another great legal struggle appears to be over: Alabama
can lock you up for selling sex toys. Without answering the more pressing
question – why on earth have such a law? – the Eleventh Circuit Court of
Appeals a few months back reversed a lower court and upheld the law in Williams v. Alabama,
a suit filed by the ACLU on behalf of sex toy users.
The case centered, of course, on interpretation of the
2003 Lawrence v. Texas decision of the Supreme Court, overturning
Texas’s sodomy law. As previously discussed in this column, a Pennsylvania
District Court recently held federal obscenity laws unconstitutional, based on
its reading of Lawrence as recognizing a fundamental right to sexual
privacy. The Eleventh Circuit rejected such a reading as strained and ultimately
incorrect, finding that “the Lawrence opinion did not employ
fundamental-rights analysis and that it ultimately applied rational-basis
review, rather than strict scrutiny, to the challenged statute.” It further
held that a right to use or sell sex toys was not “deeply rooted in this
Nation's history and tradition, and implicit in the concept of ordered
liberty,” a test articulated by the Supreme Court in the 1997 Glucksberg
case for adducing fundamental rights. For support the Eleventh Circuit
perversely turned to the Comstock Acts, those notorious 19th-Century
laws banning anything and everything about sex and birth control. It ultimately upheld the Alabama law under
rational basis review because it found it furthered a public interest in
“preserving public morality.”
Williams
demonstrates the difficulties and controversies surrounding any application of Lawrence
to other “morals legislation.” Though making some stirring statements about
liberty, privacy and dignity, the Court’s analysis in Lawrence isn’t
exactly transparent. Is the Court announcing a fundamental right when it says
that “the liberty protected by the Constitution allows homosexual persons the
right” to express personal bonds through sex? Is it altering the Glucksberg
test when it says that “history and tradition are the starting point but not in
all cases the ending point of substantive due process inquiry,” and that the
“laws and traditions of the past half century are of most relevance here”? Or,
is it declaring “public morality” an illegal purpose when is says that “the
Texas statute furthers no legitimate state interest which can justify its
intrusion into the personal and private life of the individual”? Or, does its
invocation of Equal Protection principles make it inapplicable to laws not
apparently directed at a discrete social group like gays and lesbians? In any
case, why didn’t the Court just come out and say so?
Back to sex toys. Alabama is not alone in banning the
sale or possession of sexual devices; Colorado, Georgia, Kansas, Louisiana,
Mississippi, Texas and Virginia have enacted such statutes as well. What's
unusual about Alabama's is that while the other laws are very old, Alabama's
was only passed in 1998 (and has been tied up in litigation ever since) One wonders what crisis prompted the state legislature
to take on the issue: the Great Vibrator Epidemic of 1997?
These
are not just wacky but harmless statutes, either -- it appears that they are at
least occasionally enforced. Westlaw turns up over twenty cases involving sex
toy convictions in various states since the 1970s -- and of course, those are
just the cases that produced written opinions.
One
year ago JoAnn Webb of Cleburne, TX (coincidentally the locale of the Supreme
Court’s 1985 City of Cleburne v. Cleburn Living Center case) was
arrested for selling and “promoting” sex toys at “passion parties” (think
naughty Tupperware parties) in private homes. Webb faced up to a year in jail
and a $4,000 fine. Five months later, after legal wrangling and nationwide
media coverage, the county attorney dropped all charges, citing the waste of
county resources.
In
cases predating Lawrence, high courts in Colorado and Kansas struck down
sex toy bans because they violated the fundamental right to privacy. The
Louisiana Supreme Court rejected a fundamental rights argument but held that
the law failed rational basis review. All three courts addressed themselves to
the potential medical and therapeutic uses of sexual devices in cases of sexual
dysfunction and marital difficulty. On the other hand, Texas and Georgia have upheld their laws against due process, ree speech, and vagueness challenges. The
Fifth Circuit also rejected the argument that Texas's ban violated the equal protection rights of handicapped persons who required technological assistance to achieve a normal sex life.
The U.S. Supreme Court recently denied certiorari
in Williams v. Alabama. Amid vigorous debate and conflicting
applications of Lawrence, speculation on the meaning of this denial is
irresistible. Some commentators have said that only Brown v. Board and Roe v. Wade compare to Lawrence in their historical and cultural
significance. Consider, then, the Court's course following Brown: it
granted cert. in a number of segregation cases in the next few years,
expanding its attack on segregation to areas beyond education without
discussion, despite Brown's ostensible focus on the educational context.
The Court could take a similar course with Lawrence v.
Texas, clarifying and expanding the right to sexual autonomy. Williams,
it seems, signals its refusal to do so. It’s been a messy time in the law of
sex since Lawrence, and it looks like it’s going to continue.