Sherri Williams v. Attorney General of Alabama
378 F.3d 1232, 2004 U.S. App. LEXIS 15533 (2004)
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Rule of Law:
The Due Process Clause of the Fourteenth Amendment does not recognize a fundamental right to sexual privacy that encompasses the use of sexual devices. Therefore, a state statute prohibiting the commercial distribution of such devices is not subject to strict scrutiny and is constitutional if it has a rational basis.
Facts:
- The state of Alabama enacted the Anti-Obscenity Enforcement Act.
- The Act prohibits the commercial distribution of 'any device designed or marketed as useful primarily for the stimulation of human genital organs.'
- The law does not prohibit the possession, use, or non-commercial distribution of such devices, nor does it prevent residents from acquiring them out-of-state.
- The statute exempts sales for 'bona fide medical, scientific, educational, legislative, judicial, or law enforcement purpose.'
- The American Civil Liberties Union (ACLU) challenged the statute on behalf of individuals who use these devices and vendors who sell them.
Procedural Posture:
- The ACLU sued the state of Alabama in the U.S. District Court for the Northern District of Alabama, seeking to enjoin the enforcement of the state's Anti-Obscenity Enforcement Act.
- Following a bench trial, the district court found no fundamental right but struck down the statute as lacking a rational basis and permanently enjoined its enforcement.
- Alabama, as appellant, appealed to the U.S. Court of Appeals for the Eleventh Circuit, with the ACLU as appellee.
- The Eleventh Circuit reversed the district court's rational basis holding and affirmed its rejection of a facial fundamental-rights challenge, remanding the case for consideration of an as-applied fundamental-rights challenge.
- On remand, the district court granted summary judgment for the ACLU, finding that the statute, as-applied, unconstitutionally burdened a fundamental right to sexual privacy.
- Alabama, as appellant, now appeals that summary judgment decision to the U.S. Court of Appeals for the Eleventh Circuit for a second time, with the ACLU as appellee.
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Issue:
Does an Alabama statute that prohibits the commercial sale of devices designed or marketed primarily for sexual stimulation unconstitutionally burden a fundamental right to privacy under the Due Process Clause of the Fourteenth Amendment?
Opinions:
Majority - Birch, J.
No, the Alabama statute does not unconstitutionally burden a fundamental right to privacy. The Supreme Court has never recognized a freestanding fundamental right to sexual privacy, and the decision in Lawrence v. Texas did not create one. To recognize a new fundamental right, the court must apply the test from Washington v. Glucksberg, which requires the asserted right to be 'deeply rooted in this Nation’s history and tradition.' The right to use sexual devices does not meet this standard, as there is no historical record of its affirmative legal protection; a mere absence of historical prohibition is insufficient. Because no fundamental right is implicated, the statute is not subject to strict scrutiny.
Dissenting - Barkett, J.
Yes, the Alabama statute unconstitutionally burdens a fundamental right to privacy. The majority misinterprets Lawrence v. Texas, which established a substantive due process right for consenting adults to engage in private sexual intimacy. By narrowly framing the issue as being about 'sex toys' instead of the broader right to sexual privacy, the majority repeats the analytical error of the overruled Bowers v. Hardwick decision. Furthermore, even under rational basis review, the statute fails because Lawrence implicitly rejected 'public morality' as a legitimate state interest for regulating private, consensual adult sexual conduct.
Analysis:
This decision significantly cabins the potential reach of Lawrence v. Texas, interpreting it as a rational-basis case rather than one establishing a broad fundamental right to sexual privacy. It reinforces the high bar set by Washington v. Glucksberg for recognizing new unenumerated rights, demanding a history of affirmative legal protection, not just a historical lack of prohibition. The ruling makes it more difficult for litigants to challenge morals-based legislation affecting private, consensual adult conduct by asserting a fundamental right to privacy under the Due Process Clause.
