11th Circuit says no fundamental right to sexual privacy, upholds Alabama ban on sale of sexual devices

The case is instructive on the subject of judicial reasoning. You will learn how judges do things by studying this case.

By the way, the 3-judge panel is comprised of Nixon, Bush I and Clinton appointees - the decision was unanimous, and was written by the Clinton appointee

The case is Williams v. Morgan (pdf file).

Here’s a synopsis of the opinion. The ACLU started a lawsuit in Alabama seeking to overturn Alabama’s law against the sale of dildos and other sexual devices. At the time, the US Supreme Court had just overturned laws against private gay sex. So the ACLU figured it was time to clarify that there exists a right to sexual privacy generally.

Well, the 11th Circuit Court of Appeals disagreed. Read the opinion for their analysis. We do not have a fundamental right to sexual privacy.

The Court then reasoned that, since there is no right to sexual privacy, then Alabama only needed a “rational basis” to justify the law. Then the Court decided that Alabama’s interest in promoting public morality provided the rational basis to justify the law banning the sale of sexual devices.

The Court stated that “We declined to recognize a new fundamental right to sexual privacy”. I disagree with that characterization of what the Court was being asked to do. In my opinion, the Court was being asked to declare that Alabama had no business treading upon our liberty interest (or fundamental right) to sexual privacy. You see, in my minority opinion the 9th Amendment grants us all rights not specified in the Constitution. Therefore, we have the right of sexual privacy by default, in my opinion. The court isn’t being asked to “recognize” a “new” right - it’s being asked if anything had happened to take away our right. (Most legal minds disagree with my view of the power of the Ninth).

But by framing the issue as if the Court were being asked to “create” a right, the Court was able to duck the political hot potato of issuing a pro-freedom ruling in the religiously controversial area of sexual relationships. The judges were able to render a “conservative” opinion by not “creating a new right”.

In my view, the Court ended up making a political ruling anyway, in the sense that it is politically unpopular to render pro-freedom rulings in the sexual arena - and the Court endorsed the idea that it would cause a lot of social turmoil to “recognize” the right of sexual privacy.

Judges recognize that our religious leaders would create a firestorm if they issue pro-sexual-freedom rulings.

And so the forces of theocracy prevail, and effectively subvert our freedoms through generating fear of vicious protest.

A Libertarian Democrat is vigorously pro-personal liberty, and believes government can play a constructive role in regulating our economy and providing a social safety net.

Lenny Says:
February 17th, 2007 at 9:31 pm

Try the tenth Amendment:
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

From your own source:
“This statute targets commerce in sexual devices, an inherently public
activity, whether it occurs on a street corner, in a shopping mall, or in a living
room. As the majority in Williams IV so colorfully put it: “There is nothing
‘private’ or ‘consensual’ about the advertising and sale of a dildo.” 378 F.3d at
1237 n.8; see also id. at 1241. The challenged statute does not target possession,
use, or even the gratuitous distribution of sexual devices. In fact, plaintiffs here
continue to possess and use such devices. States have traditionally had the
authority to regulate commercial activity they deem harmful to the public. See,
e.g., Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 456, 98 S. Ct. 1912, 1919, 56
L. Ed. 2d 444 (1978) (“[T]he State does not lose its power to regulate commercial
activity deemed harmful to the public whenever speech is a component of that
activity.”). Thus, while public morality was an insufficient government interest to
sustain the Texas sodomy statute, because the challenged statute in this case does
not target private activity, but public, commercial activity, the state’s interest in
promoting and preserving public morality remains a sufficient rational basis.”

I’d bet there are states closer than Alabama where you can purchase the products that you desire. The internet might be a good source as well.
After a month and a half without blogging, this is what trips your trigger? I find it ironic that you are pro-dildo.

Tim the RM Says:
February 21st, 2007 at 11:48 am

You’re not the only one calling me out for being lazy about posting. But I’ve really had nothing I felt I could add to the raging debates about the Iraq Surge, and Anna Nicole’s baby’s father, and Britney’s escapades.

But then along came this court decision. This court decision caught my eye due to the easily understandable anti-liberty aspects of it. It’s not a subtle opinion. It squarely faced the liberty issue and decided against freedom in order not to upset the social order.

This case is a good learning tool for anyone who wants to understand more deeply how judges help restrict our personal freedoms. Personal liberty is a big concern of mine, and the term “Libertarian Democrat” describes me well. We’re more accustomed to hearing about Libertarian Republicans like Neal Boortz, and former Republican Congressman (now Libertarian - and ACLU member) Bob Barr.

Glad you took the time to read the opinion. As you can see, Judges do have a logical basis for their opinions, even if we disagree with those opinions.

The same applies when a so-called Liberal opinion occurs - when you read the opinion you find that the hated Libs have a logical basis for their decision. You may disagree with their decision, but you will understand the logic behind it.

But in today’s climate, it seems rare that judges will risk the wrath of the Right by issuing a pro-personal freedom ruling. The Williams v. Morgan court acknowledged this concern of theirs, when the court mentioned the concept of social order at least three times in the opinion, strongly suggesting the court did not want to disrupt the social order, and talked about how the legislature should decide how the moral values of the people should be expressed in the law.

The court insulted the people of Alabama for their backwardness, even though the court was not going to interfere. Consider the following quote:

“By upholding the statute, we do not endorse the judgment of the Alabama legislature. As we stated in Williams II: However misguided the legislature of Alabama may have been in enacting the statute challenged in this case, the statute is not constitutionally irrational under rational basis scrutiny because it is rationally related to the State’s legitimate power to protect its view of public morality. “The Constitution presumes that . . . improvident decisions will eventually be rectified by the democratic process and that judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted.”

Now, when you mention the Ninth Amendment’s reservation of rights to the States or to the People, you raise an interesting issue: If the Ninth Amendment is a source of rights to the States or the People, then in striking a balance, do we err on the side of more personal freedom, or more State power to restrict personal freedom? When there isn’t a compelling need for restriction of liberty, should we allow the “State” to restrict freedom (and trump the reservation of People’s rights)?

In answering that question, Libertarians of all stripes would err on the side of more personal freedom. Democrats also tend to err on the side of more personal freedom. But non-libertarian Republicans err on the side of more state power to restrict personal freedom. And so, Republicans could use the Ninth Amendment to justify all manner of non-essential State restriction of personal liberty. Libertarians would use the Ninth Amendment to prevent non-essential State restriction of personal liberty.

But alas, the Ninth Amendment is generally not interpreted as a source of rights, but instead as a limitation on how the Constitution can be interpreted - “Don’t even Try to argue that because we listed certain rights, we intended to exclude other rights not listed” - that’s pretty much what the Ninth Amendment has been ruled to mean.

Now, if I’d get as inflamed about unnecessary government regulation of business (rather than just personal liberty), then I could call myself a Real Libertarian. I’d still vote Democratic though, in our two party system.

Libertarian Democrat

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11th Circuit says no fundamental right to sexual privacy, upholds Alabama ban on sale of sexual devices

The case is instructive on the subject of judicial reasoning. You will learn how judges do things by studying this case.

By the way, the 3-judge panel is comprised of Nixon, Bush I and Clinton appointees - the decision was unanimous, and was written by the Clinton appointee

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