Standing up for what's right

Over a year ago, on December 18, 2003, I posted about an utterly inane case in which a woman in Cleburne, Texas, was arrested for selling a vibrator to undercover narcotics cops. Last July 27 I was able to report the good news that the charges had been dropped.

Well, it turns out that the good folks in Alabama are made of stiffer stuff - uh, I mean firmer stu - uh.... Well, anyway, it seems that Alabama has a law that makes it a crime, punishable by up to a $10,000 fine and a year in jail, to sell "any device designed or marketed as useful primarily for the stimulation of human genital organs." That is, basically, vibrators and dildos. With the help of the ACLU, the law was challenged by two vendors and a group of people who said they regularly used such sex toys.

They won in federal district court, lost in federal appeals court - and on Tuesday, without comment, the Supreme Court refused to hear the appeal. So the people of Alabama continue to be protected from the heinous criminality of such as Adam and Eve and Xandria.

What is truly bizarre about the case is the reasoning the Court of Appeals in Atlanta used in overturning the lower court's decision.

Advocating that public morality should no longer be a "rational basis to restrict private sexual activity," the dissent [It was a 2-1 decision.] seeks to ignore that the legislation at issue bans by its express terms only the unsavory advertising and sale of sexual devices that the majority of the people of Alabama may well find morally offensive."

Indeed, the decision goes out of its way to note that the law has a very limited focus: It bans the sale of sex devices but does not ban their possession, use, or free distribution. What's more,

[t]he law does not affect the distribution of a number of other sexual products such as ribbed condoms or virility drugs. Nor does it prohibit Alabama residents from purchasing sexual devices out of state and bringing them back into Alabama. Moreover, the statute permits the sale of ordinary vibrators and body massagers that, although useful as sexual aids, are not "designed or marketed ... primarily" for that particular purpose. Finally, the statute exempts sales of sexual devices "for a bona fide medical, scientific, educational, legislative, judicial, or law enforcement purpose."

Beyond wondering just which sexual devices are sold for a "bona fide law enforcement purpose" and just what such a purpose might be, I note that the court has openly acknowledged, in fact aggressively asserted in its defense, that the law accomplishes absolutely nothing beyond going "ewww."

[I]n fact, the users involved in this litigation acknowledge that they already possess multiple sex toys.... The fact remains that the complainants here continue to possess and use such devices, burdened only by inconvenient access."

In short, the Court of Appeals ruled that Alabama can in fact legislate morality: It can ban the sale of items not because they are dangerous, not because they present a public risk, not because their advertising is fraudulent or misleading, but just because a supposed majority find them icky.

Apparently those zombies have overrun at least one federal court, too.

Thanks to Fred at Stone Court for the excerpts from the Appeals Court decision.

Footnote: The state of Alabama did not contest claims that about 20% of American women use a vibrator and at least 10% of sexually active adults use them in their regular sex life.