Legal News

On Marital Aids, Alabama, and the U.S. Constitution

By Ashby Jones

We need no grabby lead or snarky rhetorical question to kick off this post, LBers. In fact, we’re going to play it as straight as we know how. The very subject reveals why: whether a law banning the sale of “marital aids” — our preferred euphemism for those devices more commonly known as “sex toys” — is legal.

Here’s the deal: Last week, the Alabama Supreme Court, in a 7-2 decision, upheld a state anti-obscenity law which bans the sale of marital aids within a certain distance of homes, churches, schools and day-care centers. In its ruling, the court said public morality was a legal reason to regulate sales. The marital-aids purveyor who filed the challenge, a Hoover, Ala., store called Love Stuff, had argued that the ban violated the right to privacy of Alabama residents. Click here for a copy of the opinion; here for coverage from the Birmingham News. (Hat tip: ABA Journal.)

“Public morality can still serve as a legitimate rational basis for regulating commercial activity, which is not a private activity,” Associate Justice Michael F. Bolin wrote in the majority opinion.

According to the Birmingham News, a lower court judge had earlier ruled for the store, saying a part of the state law was unconstitutionally vague. But the earlier ruling also rejected Love Stuff’s request to declare a ban on sales of marital aids flatly unconstitutional. Lawyers for Love Stuff filed an appeal, leading to Friday’s state high court decision.

Could the U.S. Supreme Court be the next tribunal to weigh in on the issue? Maybe. Love Stuff attorney Amy L. Herring said a high-court appeal might make sense given the split in the circuits on such laws. “It’s been an issue in the Southeast because no one else has a problem with this,” Herring said.

A sex toy case at the Supreme Court? Eugene Volokh, writing over at the Volokh Conspiracy, thinks it could happen. (Click here for a link to a variety of posts from Volokh on the issue, going back several years.)

Writes Volokh:

It’s quite possible that the issue will now go to the Supreme Court. There was already a split on whether such statutes are constitutional in the wake of Lawrence v. Texas. . . . But presumably the losers in the Alabama case will likely ask for review, and the split creates a decent chance of the Court’s agreeing to hear the case.

Volokh’s post goes even farther, predicting not only that the Supreme Court will agree to hear the case, but that the court will uphold such laws by a 6-3 vote. Writes Volokh:

The vote will be at least 6-3, because even some of the liberals on the Court - especially Justice Breyer - and moderate conservative Justice Kennedy will think that the courts’ power to recognize unenumerated rights should be saved for rights (e.g., abortion, contraception, sexual intimacy, parental rights, right to refuse medical treatment, right to live with close family members, and the like) that are more important in most of their exercisers’ lives. And this is so even though the government’s arguments for the practical benefits of the law seem comparatively weak, or as to the supposed immorality of the conduct, largely conclusory. The majority on the Court will likely conclude that such conclusory moral arguments are adequate except when something more important to most people’s lives is at stake (since probably no Justice accepts the libertarian constitutionalist notion that a broadranging liberty to do what one pleases so long as it doesn’t directly enough hurt others is itself so important that it should be recognized as a constitutional right).

Full post as published by Law Blog - WSJ.com on September 16, 2009 (boomark / email).