Petition for Writ of Certiorari — Williams v. King

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O4-849 DEC 17 2004

No. 04-____

Supreme Court of the United States

SHERRI WILLIAMS, B.J. BAILEY, et al.,

Petitioners,

ATTORNEY GENERAL OF ALABAMA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

AMY L. HERRING MARK J. LOPEZ

(Supreme Court (Counsel of Record)

admission pending) STEVEN R. SHAPIRO

ATTORNEY AT LAw, P.C. SHARON M. MCGOWAN

229 East Side Square AMERICAN CIVIL LIBERTIES

Huntsville, Alabama 35801 UNION FOUNDATION

(256) 534-6565 125 Broad Street, 18th Floor

New York, New York 10004

(212) 549-2500

MICHAEL L. FEES

FEES & BURGESS, P.C.

213 Green Street

Huntsville, Alabama 35801

(256) 536-0095

Attorneys for Petitioners

QUESTION PRESENTED

Whether the Court of Appeals erred in ruling that a

state law criminalizing the sale of sexual devices, and thus

burdening the private sexual conduct of consenting adults, is

neither subject to heightened scrutiny, in contrast to

decisions by at least two state courts of last resort, nor

influenced by this Court’s decision in Lawrence v. Texas,

539 U.S. 558 (2003)?

LIST OF PARTIES

Petitioners are Shern Williams, BJ. Bailey, Dan

Bailey, Benny G. Cooper, Deborah L. Cooper, Alice Jean

Cope, Jane Doe, Jane Poe, and Jane Roe.

Respondent is the Attorney General of the State of

Alabama.

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TABLE OF CGNTENTS

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CONSTITUTIONAL AND STATUTORY

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STATEMENT OF THE CASE. dia saceadccaaipuaiaatbentalennliantes 2

REASONS FOR GRANTING THE WRIT.........00....0...2.. 14

I. This Case Raises Important Issues Concerning

II. The Eleventh Circuit’s Decision Is

Evidence of the Conflict and Confusion

Among Lower Courts with Respect to

This Issue, and the Need for Guidance

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CONCLUSION

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TABLE OF AUTHORITIES

CASES

Carey v. Population Services International,

GB) UB: CIC IIT iksssiniiniitslnsniacisanivinsiatiaiinntian 23, 24, 28

Griswold v. Connecticut, 381 U.S. 479 (1965)............... 16

Lawrence v. Texas, 539 U.S. 558 (2003) .......cscscseeeee: passim

Morrison v. State, 526 S.E.2d 336 (Ga. 2000)... 26

Nebbia v. New York, 291 U.S. 502 (1934)... eee 23

People of the State of Colorado v. Seven

Thirty-Five East Colfax, Inc.,

GBT P26 SOB GINO. TOG) nnvvscsninanisanrsonansnsnaanion 21, 22, 23

PHE, Inc. v. State, 877 So. 2d 1244

CRN: FOUN eicccnsaiecideecotsactintion dun aicaaitdeadanuiacaas 27

Planned Parenthood of Southeastern Pa. v.

Castty, FOS ULE. GSS TH wcsincsndassicassnnsanienaceinagae 17

Red Bluff Drive-In, Inc. v. Vance, 648 F.2d 1020

(FR CAE. BE isviccesitssinicsisasennenonnntianenpaanmsnaaanainen 27

Regalado v. State, 872 S.W.2d 7 (Tex. App. 1994).......... 27

State of Kansas v. Hughes,

792 P.24 1023 Cham. 1990) occcsccccnnacsoncsssasasaseoss 21, 23, 24

State of Louisiana v. Brenan,

me 21, 24, 25

State v. Sewell, 233 $.E.2d 187 (Ga. 1977)................000000 27

This, That and the Other Gift and Tobacco, Inc.

v. Cobb County, Civ. Action 1:00-CV-2920-WBH

COUR. ©, FOOT RE GD ccccssetavticccientatiaaaeas 27

Washington v. Glucksberg, 521 U.S. 702 (1997)....... 19, 20

Yorko v. State, 690 S.W.2d 260

CEC. CORR, PO, TE peccessnccsnesesecnnessinnsinnniaain 21, 25, 26

CONSTITUTIONAL PROVISIONS

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FEDERAL REGULATIONS

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OPINIONS AND ORDERS BELOW

The original decision of the District Court granting

summary judgment to the plaintiffs, and enjoining Alabama

Code § 13A-12-200.2(a)(1) (1975) (Supp. 2001), was

entered on March 29, 1999. The court’s opinion, 41 F. Supp.

2d 1257 (N.D. Ala. 1999) (Williams J), is reprinted in the

Appendix (“Pet. App.”) at Pet. App. la-77a. The Eleventh

Circuit decision reversing the District Court and remanding

for further proceedings was entered on October 12, 2000.

That opinion, 229 F.3d 1331 (11th Cir. 2000), was

withdrawn and is not reprinted in the appendix. On January

31, 2001, the Eleventh Circuit issued a superceding opinion

accompanying a denial of rehearing, 240 F.3d 944 (11th Cir.

2001) ( Williams IT), which is reprinted at Pet. App. 78a-97a.

On remand, the decision of the District Court

granting summary judgment to the plaintiffs, and again

enjoining Alabama Code § 13A-12-200.2 (a)(1)(1975)

(Supp. 2001), was entered on October 10, 2002. The District

Court’s opinion, 220 F. Supp. 2d 1257 (N.D. Ala. 2002)

(Williams III), is reprinted at Pet. App. 98a-195a. The

Eleventh Circuit decision reversing the District Court was

entered on July 28, 2004. It is reported at 378 F.3d 1272

(11th Cir. 2004) (Williams IV), and reprinted at Pet. App.

196a-249a. Rehearing and rehearing en banc were denied on

September 24, 2004. Pet. App. 250a-251a.

JURISDICTION

The Eleventh Circuit’s decision reversing the District

Court’s grant of final summary judgment was entered on

July 28, 2004. On September 24, 2004, that court entered an

order denying plaintiffs’ petition for rehearing and rehearing

en banc. This Court has jurisdiction under 28 U.S.C. § 1254.

CONSTITUTIONAL AND STATUTORY PROVISIONS

The Fourteenth Amendment to the United States

Constitution provides, in relevant part, that “No State

shall. ..deprive any person of life, liberty, or property

without due process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.” U.S. Const.

amend. XIV, § 1.

Alabama Code § 13A-12-200.2(a)(1) (1975) (Supp.

2001) provides: “It shall be unlawful for any person to

Knowingly distribute, possess with intent to distribute, or

offer or agree to distribute any obscene material or any

device designed or marketed as primarily useful for the

stimulation of human genital organs for anything of

pecuniary value. Material not otherwise obscene may be

obscene under this section if the distribution of the material,

the offer to do so, or the possession with the intent to do so is

a commercial exploitation of erotica solely for the sake of

prurient appeal. Any person who violates this subsection

shall be guilty of a misdemeanor and, upon conviction, shall

be punished by a fine of not more than ten thousand dollars

($10,000) and may also be imprisoned in the county jail or

sentenced to hard labor for the county for not more than one

year. A second or subsequent violation of this subdivision is

a Class C felony if the second or subsequent violation occurs

after a conviction has been obtained for a previous violation.

Upon a second violation, a corporation or business entity

shall be fined not less than ten thousand dollars ($10,000)

nor more than fifty thousand dollars ($50,000).”

STATEMENT OF THE CASE

This case involves a_ substantive due process

challenge to an Alabama statute prohibiting the distribution

of “any device designed or marketed as useful primarily for

the stimulation of human genital organs.” Ala. Code § 13A-

12-200.2(a)(1) (1975) (Supp. 2001) (‘sexual devices”).

Violations are punishable by fine and imprisonment. The

statute does not restrict possession or use of a sexual device.

The sexual devices covered by the statute have many

recognized beneficial uses and are used by consenting adults

in deeply private acts that are beyond the reach of

government regulation. Petitioners allege that the Due

Process Clause of the Fourteenth Amendment recognizes a

protected liberty interest in sexual privacy that encompasses

these activities. The asserted right necessarily includes the

right to acquire these products, subject to the state’s nght to

regulate them like other legal products marketed for adult

use. Alternatively, petitioners allege that the statute is not

rationally related to the governmental interests it purports to

advance. A group of individuals who regularly use sexual

devices with their spouses (or alone) and two retail

distributors challenged the statute both on its face and as

applied.

The first District Court opinion (“Williams I’). In the

original district court opinion, Pet. App. la-77a, the court

ruled that this Court’s holding in Bowers v. Hardwick, 478

U.S. 186 (1986), foreclosed the fundamental nght of sexual

privacy asserted by plaintiffs. The court also held that the

asserted right found no support in the due process analysis

required by Washington v. Glucksberg, 521 U.S. 702 (1997).

The court nevertheless struck down the statute on the

alternative ground that broadly prohibiting the sale of all

sexual devices — regardless of the many beneficial uses

acknowledged by the State — was not rationally related to

any legitimate state interest. Pet. App. 76a-77a. The district

court’s extensive findings describing those beneficial uses

were based on a stipulated evidentiary record. Pet. App. 6a-

34a.

The first Court of Appeals opinion (“Williams IT’). A

panel of the court of appeals reversed. Pet. App. 78a-97a.

The court first considered the district court determination

that the statute was unconstitutional because it failed rational

basis review. It held that “[t]he State’s interest in public

morality is a legitimate interest rationally served by the

statute.” Pet. App. 84a. The court reached this conclusion

even though it recognized that the statute disregarded the

many beneficial uses of sexual devices documented in the

record. Pet. App. 90a (“However misguided the legislature

of Alabama may have been in enacting the statute . . . [it] is

not constitutionally irrational under rational basis scrutiny

because it is related to the state’s legitimate power to protect

its view of public morality.”). The court then considered

plaintiffs’ fundamental rights claim. After reviewing this

Court’s substantive due process cases, the Eleventh Circuit

declined to find that the statute was unconstitutional in all of

its possible applications, and therefore upheld the statute on

its face. Pet. App. 91a-95a.

The Eleventh Circuit remanded the case for further

proceedings on plaintiffs’ as-applied challenge, however,

noting that the district court had not adequately considered

the as-applied challenge raised by the plaintiffs under

Glucksberg, because it failed to sufficiently weigh the

important interests in marital and sexual privacy that were

threatened by the statute. Pet. App. 95a-97a.

In ordering a remand, the appeals court specifically

rejected the approach taken by the district court, which

focused its due process analysis on whether the use of sexual

devices is conduct that, by itself, is “deeply rooted in this

Nation’s history” and “implicit in the concept of ordered

liberty,” and remanded for a determination of whether and to

what extent the Alabama statute infringes a “fundamental

right to sexual privacy” that includes the nght of these

plaintiffs to use sexual devices in the privacy of their

bedrooms. Pet. App. 96a-97a.

Although the court in Williams IT did not decide the

fundamental nights issue, the court plainly recognized the

important interests in sexual privacy implicated by this case:

the as-applied challenges raised by the

plaintiffs, married or unmarried, implicate

different and important interests in sexual

privacy. See Griswold, 381 U.S. at 485-86,

85 S. Ct at 1682 (“Would we allow the police

to search the sacred precincts of the marital

bedrooms? The very idea is repulsive to the

notions of privacy surrounding the marriage

relationship.”); . . . [Bowers v. Hardwick, 478

U.S. 186,] 216, 106 S. Ct. at 2857 (Stevens,

J., dissenting) (citing Eisenstadt and Carey as

holding that fundamental rights protection in

sexual matters “extends to intimate choices by

unmarried as well as married persons’’).

Pet. App. 95a-96a.

Consistent with that view, the district court was

specifically directed to consider, as part of the Glucksberg

test, “whether our nation has a deeply rooted history of state

interference, or state non-interference, in the private sexual

activity of married or unmarried persons [or] whether

contemporary practice bolsters or undermines any such

history.” Pet. App. 97a (emphasis added).

The second District Court opinion (“Williams IIT’).

On remand, the district court carefully applied the due

process analysis required by Glucksberg and by the panel

decision. In order to avoid mischaracterizing the asserted

liberty interest, the court started its analysis with a careful

description of the rights at stake by focusing on the marital

and sexual privacy interests of the individual plaintiffs. The

court’s discussion begins and ends with a_ thorough

assessment of how the Alabama statute affects the lives and

sexual practices of the individual plaintiffs in this case. Pet.

App. 108a-115a, 190a-191a.

The district court findings show how sexual devices

aid in the most intimate acts between husbands and wives

and other consenting adults. Pet. App. 108a-115a, 175a-

176a, 190a-191a. The court relied on the testimony of each

of the user plaintiffs in this case describing how the use of

sexual devices during marital and dating relationships has

enabled them to, among other things, improve the quality of

their marital communications, better their sexual

relationships, encourage intimacy in_ their marital

relationships, eradicate fears of infidelity between spouses,

and combat embarrassing or painful medical conditions. Pet.

App. 190a-19la. Additionally, the court adopted the

stipulated testimony of two experts in the study of human

sexuality describing how “sexual aids help in_ the

revitalization of potentially failing marital relations,” and

explaining that the use of sexual devices is recommended in

‘therapy for couples who are having sexual problems in their

—marriage.” Pet. App. 191a (internal quotations omitted). The

lower court held that the undisputed evidentiary submissions

supported the conclusion that the user plaintiffs’ purchase

and use of sexual devices is an integral part of the sexual

relationships they share with their spouses and other

partners. Pet. App. 175a-176a, 190a-19la. And the court

held that these facts supported plaintiffs’ contention that

“{t]laken as a whole, these devices are designed to improve or

enhance sexual relations or provide an alternative to them.”

Pet. App. 176a.'

' One of the plaintiffs, Jane Doe, is a fifty-year-old woman

who now is single, but who previously has been marmed and divorced.

The use of these devices is particularly important and

therapeutic for women who have difficulty achieving orgasm

through coitus alone. Pet. App. Illa, 149a; see also Pet.

App. 17a-18a, 20a. The individual plaintiffs courageously

testified to that effect both in the original district court

proceedings and on remand. Pet App. 14a-15a, 11 1a-1 15a.

As the district court found, the inability to achieve

orgasm through sexual intercourse is a recognized and

treatable medical condition. In the opinion of some medical

and psychological professionals, failure to treat the condition

may not only jeopardize the women’s physical and

physiological health, but may also destroy a marriage or

relationship. For this reason, many married and unmarried

couples seek out therapy or advice on how to treat this

condition. Pet. App. 191la; see also Pet. App. 17a-18a, 20a.

In fact, standard vibrator devices have FDA approval as a

powered vaginal muscle stimulator for therapeutic use in

increasing muscular tone and strength in the treatment of

sexual dysfunction or as an adjunct to Kegel exercise

Ms. Doe began using sexual devices on the advice of her therapist, as a

means to combat postpartum depression and to improve her marital

relationship. Ms. Doe currently uses the devices to avoid sexually

transmitted diseases, while remaining sexually active. Another plaintiff,

Deborah L. Cooper, is thirty-three years old, and married to plaintiff

Benny G. Cooper. The Coopers began using sexual devices in order to

repair their deteriorating sexual relationship and marriage. To that end,

Mrs. Cooper attended an “adult toy” party at a friend’s home, at which

she purchased a sexual device that she subsequently introduced into her

marriage. Both Mr. and Mrs. Cooper attribute the use of sexual devices

to “restoring . . . trust, dialogue, and understanding into their marriage.”

A third plaintiff, Dan Bailey, is sixty-one, and fourteen years older than

his wife. He has suffered in recent years from a respiratory condition and

problems with arousal. Mr. Bailey asserts that the use of sexual devices

has improved his sexual relationship with his wife.

(tightening of the muscles of the pelvic floor to increase

muscle tone). Pet. App. 174a; see also Pet. App. 10a-20a.°

Other plaintiffs use sexual devices because of

physical disabilities. The district court also noted that the

State of Alabama’s own University Health System Internet

site advocates applying a “powerful vibrator on the glans of

the penis” to enable men who have suffered spinal cord

injuries to ejaculate, for the specific purpose of

“impregnate[ing] their wives and hav[{ing] normal, healthy

children.” Pet. App. 19 1a.

As part of its Glucksberg analysis, the district court

also made extensive findings describing the widespread use

and availability of sexual devices in contemporary America.

The court found that vibrators have been mass marketed

since 1899 and were even advertised in the Sears Roebuck

Catalogue. Pet. App. 153a-154a, 170a. At first their use

was coupled with a misunderstanding of female sexuality,

which led them to be commonly used and recommended by

doctors for the treatment of “hysteria.” Pet. App. 148a-150a.

Today, the use of sexual devices is coupled with a greater

understanding of both male and female sexuality that has led

> 21 CER §§ 884.5940, 884.5960 (2004).

For example, plaintiff Jane Roe suffers from a chronic

disability that makes it extremely painful to engage in sexual intercourse.

Ms. Roe. who 1s thirty-eight years old, has lived with this condition since

she was twenty-four, and claims that sex has become increasingly less

enjoyable since that tme. Ms. Roe asserts, however, that she was invited

to an “adult toys” party, at which she was able to discuss her condition

with other women in a “private, supportive environment.” Ms. Roe

purchased sexual devices at this party that allow her to experience sexual

pleasure without pain or discomfort. This plaintiff states that, while she

hopes to marry or have a consistent sexual partner in the future, any

sexua] relationship will require her partner to use such a sexual device to

enable her to experience sexual pleasure without pain. The other user

plaintiffs describe similar issues. Pet. App. 112a-115a.

to their acceptance in virtually every part of the country —

including Alabama. Moreover, the State did not contest the

evidence that approximately twenty percent of all American

women occasionally use a vibrator, and at least ten percent

of sexually active adults use vibrators in their regular sex

life. Pet. App. 170a; see also Pet. App. 33a. Many other

findings in the court’s original decision are addressed to the

widespread use and availability of sexual devices in America

and in Alabama. Pet App. 8a-34a. Sex boutiques

specializing in romance enhancing products and novelties

operate in every major city in Alabama and throughout the

United States. Moreover, the products continue to be

advertised in the print and Internet media, such as airline

magazines, Cosmopolitan, and such upscale mail-order

catalogues as the Sharper Image. Pet. App. 170a. The

district court further found that only two states other than

Alabama (Georgia and Texas) restricted the distribution of

sexual devices. /d.

Following its discussion of the beneficial uses of

sexual devices in deeply private acts, the district court turned

to the second part of the Glucksberg analysis and found that

there exists a substantial history, legal tradition, and

contemporary practice of deliberate state non-interference in

the private, consensual, sexual relationships of marred and

unmarried adults. Pet. App. 171a-175a. The district court’s

findings not only describe the prevailing legal norms during

the period studied, but also the changing religious, scientific,

social, and demographic forces that influenced our nation’s

legal traditions as they developed during the last 200 years.”

By contrast, the only evidence introduced by the State

established that during the Comstock era “rubber goods used

* The stipulated evidence is based on both direct and

secondary sources, including expert testimony and_ scholarship

chronicling this history. Pet. App. 136a-170a.

for immoral purposes were sometimes confiscated.” Based

on this evidence, and the Attorney General's concessions,

the lower court concluded that this history, and these

traditions and practices protected marned and unmarried

adults from intrusions into their sexual lives and behaviors.

Pet. App. 171a-17Sa.° This is the precise issue that was

retumed to the lower court for additional findings. Pet. App.

Sa-97a. The ultimate result, the court held. is that plaintiffs

have shown that the fundamental nght of privacy

incorporates a nght to sexual privacy that is abridged by the

statute at issue.

Although the State failed to advance any justification

for the statute or to argue that it was narrowly tailored, the

court nevertheless considered a number of plausible

justifications for the law. Pet. App. 183a-187a. Applying

stnet gnenens the court determined that even if the state

assetted compelling interests underlying its enactment, the

Statute 1s not narrowly tailored to serve those interests and

herefore does not pass constitutional muster. Pet. App.

18° a-194a.

The first interest the court considered was the

protection of children and unwilling adults from exposure to

public displavs of obscene matenals and the prevention of

the spread of adult-onented establishments. The court held

that communities can achieve this objective through the

natTower option of zoning laws. In addition, the court held

that any interest in protecting children and unwilling adults

This evidence was extremely thin and was contradicted by

evidence showing that the enforcement of the Comstock laws primarily

targeted contraceptive devices (womb shields and condoms) and obscene

Dudiicanions and pictures. Pet. App. ]53a-1]54a.

The court aiso held that. with few exceptions. history and

contemmporar, practice demonstrate a deliberate and “conscious

zvoidance of state reguianon of these devices. Pet. App. 175a

has no application to one of the vendor plaintiffs, who sells

sexual devices at “Tupperware-style” parties in, private

homes. Pet. App. 189a-190a.

The second possible objective considered by the

court was banning commerce in sexual stimulation and auto-

eroticism, for its own sake, unrelated to marriage,

procreation, or familial relationships. Pet. App. 190a-192a.

The court rejected this justification as well. It held that,

rather than being narrowly tailored to achieve this objective,

the statute accomplishes just the opposite for the user

plaintiffs, because it prevents them from access to devices

“that they, and experts in the field of human sexuality, have

averred are integral to growing, preserving, and/or repairing

marital and familial relationships.” Pet. App. 192a.

The court found that the statute also “sweeps too

broadly” with respect to a third possible interest — banning

commerce in obscene material. Pet. App. 192a-194a. Many

of the devices at issue, the court noted, do not represent

human genitals and would not be considered “obscene”

under the guidelines of Miller v. California, 413 U.S. 15

(1973). The court held that although some of the devices

might suggest sexual activity, “a mere suggestion of sex will

not satisfy the Miller obscenity test.” Pet. App. 194a.

Accordingly, the court granted plaintiffs’ motion for

summary judgment and denied the defendant’s motion for

summary judgment. The court entered judgment enjoining

the Attorney General from enforcing the statutory provision

in accordance with its memorandum opinion. Pet. App.

194a-195a.

The second Court of Appeals opinion (*Williams

IV’). Qn the second appeal, the distnct court was again

reversed in a 2-1 decision upholding the Alabama law. Pet.

App. 196a-249a. Pnor to oral argument, the partes were

directed to file supplemental bnets addressing Lawrence v.

Texas, $39 U.S. S58 (2003), which was decided while this

case was pending on appeal. In overruling Bowers ~v.

Hardwick, 478 U.S. 186 (1986), and stnking down Texas’

sodomy law, Lawrence acknowledged the substantive due

process nght of consenting adults to engage in private sexual

conduct. Moreover, the Lawrence Court held that the

premises upon which Bowers rested were erroneous and that

the state’s interest in “public morality” could no longer

yustty cnminalizing private adult consensual sexual activity.

S39 US. at 571.

The panel rejected any application of Lawrence to

this case by reading the decision as solely establishing a bar

to cnminal prosecution for private adult consensual activity.

Pet. App. 202a-203a. The majonty did not acknowledge or

identify the underlying liberty interest asserted in that case

and declined to recognize the important liberty interests that

support Lawrence. Pet. App. 202a-207a. The majority then

turned to its Glucksberg analysis and engaged in the very

analysis that was rejected in Lawrence, and by the first panel

in Williams J]. Pet. App. 207a-228a. The court

charactenzed the asserted nght at a level of specificity that

demeans the sexual pnvacy nghts that are at stake in this

case. As a result. the majority repeated the error made in

Bowers. and in the first distnct court opinion, by mistakenly

reducing the liberty interest to a particular sexual act,

untethered from the broader interests in sexual privacy that

are protected by the Due Process Clause. The majority

framed the question simply as whether the Constitution

“protects the nght to use sexual devices.” Pet. App. 213a.’

As the majority acknowledged. there 1s no constitutional

distinction between a ban on the private use of sex toys and a ban on the

sale of sex tovs Pet. App. 213a. (“For purposes of constitutional

analysis. restricuons on the ability to purchase an item are tantamount to

restricuons on the use of that 1tem.”).

By shifting the emphasis to the seemingly trivial issue of

whether the use of sexual devices rates constitutional

protection, the majority avoided the very issue with which

this Court was concerned in Lawrence.

The majority dismissed the district court’s careful

analysis of whether “our nation has a deeply rooted history

of state interference, or state non-interference, in the private

sexual activity of married or unmarried persons [or] whether

contemporary practice bolsters or undermines such history,”

as “an irrelevant exploration of the history of sex in

America.” Pet. App. 214a. To the extent the Williams IV

court engaged this issue at all, the majority opinion

specifically rejected any application of the importance of

state non-interference as a factor in the Glucksherg analysis.

Pet. App. 217a-220a. Compounding its error, the majority

ignored the importance of developments in the law in the

20th century and other contemporary practices that support

the district court’s conclusion that sexual privacy is

constitutionally protected. Pet. App. 215a-217a.

The case was remanded yet again, Pet. App. 230a,

this time for a determination of whether the Eleventh Circuit

panei’s decision in Williams IT, which held that the Alabama

lav’ is supported by a rational basis (e.g., public morality),

remains good law now that Bowers has been overruled. Pet.

App. 199a. The remand, however, was accompanied by

instructions that so fundamentally alter the issue that plenary

review by this Court is now appropriate.*

* While acknowledging that “for purposes of constitutional

analysis, restrictions on the ability to purchase an item [sexual devices]

are tantamount to restrictions on the use of that item.” Pet. App. 213a, the

majority held that the State’s justification for the statute can be judged by

its secondary effects and not by the standards that would apply to a direct

restriction on the use of sexual devices. Pet. App. 205a n.8 (commenting

that there is nothing “private or consensual about the advertising and sale

Judge Barkett argued in dissent that Lawrence held

that a state may not criminalize private adult sexual activity

because of the existence of the very night to private sexual

intimacy that the majority refused to recognize. Pet. App.

233a-237a. She further argued that the majority repeated the

error made in Bowers by framing the due process issue in

terms of the particular sexual act rather than the underlying

right of sexual privacy. Pet. App. 238a-24la. Judge Barkett

also took issue with the majority’s crabbed view of the

proper weight to be given to the Glucksberg factors,

particularly the importance of contemporary practices and

mores in due process analysis. Pet. App. 24la-246a.

Finally, Judge Barkett argued that the State’s reliance on

public morality could not survive even rational basis scrutiny

following Lawrence. Pet. App. 246a-248a.

REASONS FOR GRANTING THE WRIT

l. The Eleventh Circuit’s decision rests on the

erroneous foundation that there is no substantive due process

nght to adult consensual sexual intimacy in the home and

erroneously assumes that the promotion of public morality is

a legitimate state interest that is furthered by criminally

burdening such private intimate activity. These premises

directly conflict with the Court’s holding in Lawrence v.

Texas. The court of appeals compounded its error by ngidly

applying the due process analysis of Washington v.

Glucksherg, as if Bowers had not been overruled by

Lawrence, and as if Lawrence had nothing to say about the

of a dildo”). After framing the due process analysis in this way, the court

suggested ample case authority for regulating sales, id , notwithstanding

the fact that it is plaintiffs’ use that is burdened.

s.. SSPE

proper framing of the asserted liberty interest and the

appropriate use of history as a guide.’

y a The lower courts are conflicted and confused about

the limits imposed by the Constitution on the State’s power

to regulate adult, consensual sexual intimacy in the home.

The panel decision directly conflicts with the decisions of the

Colorado and Kansas Supreme Courts. Both of those

decisions properly frame the asserted liberty interest in terms

of the underlying nght of sexual privacy in a way that is

consistent with Lawrence, and inconsistent with the decision

below. Four other State Supreme Courts have also reached

divergent results about the scope of permissible regulation in

this area. Louisiana has struck down a law similar to

Alabama’s, although on rational basis grounds. Texas,

Georgia, and Mississippi have upheld statutes simiisr to

Alabama’s. Because States continue to enforce these statutes

through criminal prosecutions, petitioners submit that there

is a need for uniformity in this area of the law.

I. This Case Raises Important Issues Concerning the

Scope of the Constitutional Right to Sexual

Privacy

In Lawrence, the Court considered~a challenge to a

Texas law that made certain sexual conduct between same-

sex partners a crime. In stnking down the law, the Court

answered the question that the court of appeals had left open

‘in Williams IT - the same question the district court

addressed on remand in this case — and held that the

constitutional mght to pnvacy and personal autonomy

protects private, consensual sexual conduct, regardless of its

Related issues are raised in the pending petition for

certiorari in Lofton v. Secretary of the Florida Dep't of Children and

Families, No. 04-478.

connection to marriage or procreation. Lawrence, 539 U.S.

at 574. To reach this result, the Court explicitly overruled

Bowers and rejected the due process analytical framework

that was used in that case. /d. at 578. The court of appeals

in this case dismissed the relevance of Lawrence as an

anomaly, and engaged in the very same flawed due process

analysis that was used in Bowers and rejected in Lawrence.

Lawrence's repudiation of Bowers’ substantive due process

approach cannot be dismissed so casually.

Lawrence does indeed recognize the liberty interest

asserted in this case. From its opening paragraph, the Court

explained the importance of the liberty interest here:

Liberty protects the person from unwarranted

intrusions into a dwelling or other private

places. In our tradition, the state is not

omnipresent in the home. And there are other

spheres of our lives and existence, outside the

home, where the state should not be a

dominant presence. Freedom extends beyond

spatial bounds. Liberty presumes an

autonomy of self that includes freedom of

thought, belief expression, and certain

intimate conduct. The instant case involves

liberty of the person, both in its spatial and

transcendent dimensions.

Id. at 562 (emphasis added). After making this observation,

the Court began its analysis by reviewing Griswold v.

Connecticut 381 U.S. 479 (1965) and its progeny, in which

the Court established the “nght to privacy” in both manital

and non-manital relationships and the right to “make certain

fundamental decisions affecting [one’s] destiny.” 539 US.

at 564-66. The Court explained that these cases established

that “the mght to make certain decisions regarding sexual

conduct extends beyond the marital relationship.” /d. at 565

(citing Eisenstadt v. Baird, 405 U.S. 438 (1972), Roe v.

Wade, 410 U.S. 113 (1973), and Carey v. Population Servs.

Int'l, 431 U.S. 678 (1977)).

The Court then discussed its broad description of this

right to “autonomy of the person” in Planned Parenthood of

Southeastern Pa. v. Casey, 505 U.S. 833 (1992). It said that

matters involving the most intimate and

personal choices a person may make in a

lifetime, choices central to personal dignity

and autonomy, are central to the liberty

protected by the Fourteenth Amendment. At

the heart of liberty is the nght to define one’s

own concept of existence, of meaning, of the

universe, and of the mystery of human life.

Lawrence, 539 U.S. at 574 (quoting Casey, 505 U.S. at 851).

The Court finally concluded that the fundamental

right to privacy and personal autonomy established in these

cases covers the right to sexual privacy unrelated to marnage

or procreation, including same-sex sodomy. /d. The Court

recognized that sodomy laws “touch[] upon the most private

human conduct, sexual behavior, and in the most private of

places, the home.” Jd. at 567. “[L]iberty,” the Court said,

“gives substantial protection to adult persons in deciding

how to conduct their private lives in matters pertaining to

sex.” Jd. at 572. Thus, the Court declared, using the words

of Justice Stevens in his dissent in Bowers:

[I]ndividual decisions by married persons

concerning the intimacies of their physical

relationship, even when not intended to

produce offspring, are a form-of “liberty”

protected by the Due Process Clause of the

Fourteenth Amendment. Moreover, this

protection extends to intimate choices by

unmarried as well as married persons.

Id. at 578 (quoting Bowers v. Hardwick, 478 U.S. 186, 216

(1986) (Stevens, J., dissenting)). “Justice Stevens’ analysis,”

the Court said, “should have been controlling in Bowers and

should control here.” /d.

By refusing even to acknowledge the existence of the

very liberty identified by Justice Stevens, the Eleventh

Circuit in this case failed to follow a critical teaching of

Lawrence. Judge Barkett’s dissent properly criticized the

majority for disregarding Lawrence and turning a reluctance

to expand substantive due process into a “stubborn

unwillingness” to consider relevant Supreme Court authority. -

Pet App. 249a.

By asking “whether the Federal Constitution confers

a fundamental night upon homosexuals to engage in

sodomy,” Bowers v. Hardwick framed the liberty interest too

narrowly. Lawrence, 539 U.S. at 567. The Lawrence Court

overruled Bowers because it had “fail[ed] to appreciate the

extent of the liberty at stake” — namely, the nght to engage in

private sexual activity whether or not connected to marriage

or procreation. /d. at 567. As in Lawrence, the Alabama

statute imposes criminal sanctions and directly targets the

private sexual activity of consenting adults by restricting the

availability of sexual devices.

The evidence shows that this case is not about

novelty items, naughty toys, or obscene matter. It is a case

about human sexuality and extremely intimate acts. The

-court found that the use of sexual devices is uniformly

credited by experts in the field of psychology and human

sexuality, as well as by the plaintiffs themselves, as not only

making sex more enjoyable, but improving self-esteem,

health, and the relationships between men and women. Pet.

App. 68a-70a. The State has never contested this basic

premise. The State has not argued that these products are

inherently dangerous or that they are susceptible to misuse.

The use of sexual devices is obviously not a cnme in

Alabama or anywhere else. In fact, the State has never even

defended the statute on the grounds that sexual devices are

obscene per se. Pet. App. 16a. Nor has it ever explained

why sales of performance enhancing drugs like Viagra,

Cialis, and Levitra and even mbbed condoms are not

similarly prohibited. Pet. App. 16a-17a. Similarly the State

has not sought to regulate the sale of sexual devices through

valid zoning laws that apply to other adult businesses. Pet.

App. 190a.

Having erred by proceeding as if Lawrence does not

control the fundamental mghts analysis and confirm a

substantive due process right to sexual privacy, the Eleventh

Circuit then compounded the error by applying the

Glucksberg fundamental rights analysis as if Lawrence does

not exist. The majority opinion conflicts with Lawrence in

several critical respects that, taken alone or together, would

lead to a different result in this case.'? Whatever else may be

said about the holding and meaning of Lawrence, the Court

relied on several important factors that the panel ignored in

this case. Judge Barkett’s dissent flags all of them.

First, by ignoring Lawrence’s teaching about how to

correctly frame a liberty interest affecting sexual privacy, the

majority unnecessarily engaged in a Glucksberg analysis in

search of the very nght that was affirmed in Lawrence. The

Glucksberg analysis applies where a court-inquires whether

to recognize a new fundamental nght. The nght asserted by

plaintiffs here is part of the mght previously recognized in

Griswold, Eisenstadt, Roe, Carey, Casey, and Lawrence.

'0 The majority’s decision to ignore Lawrence compounded

the error it made in failing to faithfully adhere to a decision of another

panel of that court in Williams II.

Because the right is already established, there is no need to

perform the Glucksberg analysis. Thus, the majority

repeated the error made in Bowers by mistakenly reducing

the asserted liberty interest here to a particular sexual act.

Second, even assuming that it was necessary to apply

the Glucksberg analysis after this Court’s decision in

Lawrence, the Williams IV panel ignored this Court’s

instruction in Lawrence that, although history and tradition

may be used as a “starting point,” they are not the “ending

point” of substantive due process inquiry. Lawrence, 539

U.S. at 572. Except for the overruled Bowers, this Court has

not relied upon the existence of historical legislative

restrictions on private sexual conduct to suggest that the

liberty interest asserted in this case has not been established.

Third, the court below suggested that recognizing a

right to “sexual privacy” in this case would theoretically

require the states to recognize a fundamental nght to sexual

privacy in all circumstances. Pet. App. 210a. Here again,

the majority misreads Lawrence, which recognized both the

broad scope of the existing liberty and the limits of the

question presented in any particular case. 539 U.S. at 578.

Like Lawrence, the present case does not “involve minors, it

does not involve persons who might be injured or coerced, or

who are situated in relationships where consent might not be

easily refused. It does not involve public conduct or

prostitution.” Jd. The case does involve adults who, with

full and mutual consent, engage in sexual practices that

assuredly are in and of themselves protected under the

Fourteenth Amendment. This Court should grant the wnt

sought in this case to reaffirm that this essential zone of

personal privacy cannot be abridged by the government.

II. The Eleventh Circuit’s Decision Is Evidence of the

Conflict and Confusion Among Lower Courts

with Respect to This Issue, and the Need for

Guidance from This Court.

The Eleventh Circuit’s decision in Williams IV adds

to a conflict among lower courts with regard to the

constitutional issues raised by these kinds of statutes. In

striking down the sexual devices statutes in their states, the

Supreme Courts of Colorado and Kansas engaged in the

correct analysis of the liberty interests at stake. People v.

Seven Thirty-Five East Colfax, Inc., 697 P.2d 348 (Colo.

1985); State v. Hughes, 792 P.2d 1023 (Kan. 1990). By

contrast, the Supreme Court of Louisiana, while failing to

recognize that its state sexual devices law burdened a

fundamental night, struck down the statute on the ground that

the State had no rational basis for restricting the sale of

devices with well-established therapeutic value. State v.

Brenan, 772 So. 2d 64 (La. 2000). Finally, the Texas Court

of Criminal Appeals flatly rejected the argument that any

fundamental mght was implicated by the state’s sexual

devices law, and sustained the statute as a rational exercise

of the state’s power. Yorko v. State, 690 S.W.2d 260 (Tex.

Cnm. App. 1985). The Court should grant the wnt to

resolve the conflict among these authorities.

A. Colorado

The Colorado Supreme Court considered a federal

constitutional challenge to a state law that criminalized the

“{p]romot[ion] or possess[ion] with intent to promote any . . .

obscene device,” which was defined as “‘a device including a

dildo or artificial vagina, designed or marketed as useful

primarily for the stimulation of human genital organs.” 697

P.2d at 369-70 (discussing Colo. Rev. Stat. §§ 18-7-101 and

-102). The court began its analysis by observing that “the

liberty interest protected by the Due Process Clause of the

United States Constitution encompasses a right of personal

privacy, or a guarantee of certain areas or zones of privacy.”

Id. (citing, inter alia, Roe v. Wade, 410 U.S. 113 (1973), and

Carey v. Population Servs. Int'l, 431 U.S. 678 (1977)).

Applying this first principle to the facts before it, the court

found that the “blanket proscription” on all devices

“designed or marketed as useful primarily for the stimulation

of human genital organs” impermissibly equated sex with

obscenity, and consequently “invaded the ‘personal

intimacies of the home.’” Jd. (quoting Paris Adult Theatre I

v. Slaton, 413 U.S. 49, 65 (1973)). Moreover, the law

infringed on a “sphere of constitutionally protected privacy

which encompasses the intimate medical problems

associated with sexual activity.” Jd. at 369 n.26 (citing

United States v. 12 200-Ft. Reels of Super 8MM Film, 413

U.S. 123, 127 n.4 (1973)). The court cited regulations from

the federal Food and Drug Administration regarding sexual

devices in support of its conclusion that the law burdened the

right of privacy of those seeking to make legitimate medical

or therapeutic use of such devices.” /d.at 370, n.27.

Having determined that a fundamental liberty interest

was burdened by the statute, the court then examined the

government interests that might justify this burden.

Ultimately, the court ruled that the government had

demonstrated “no interest in the broad prohibition of these

articles sufficiently compelling to justify the infringement on

the privacy right of those seeking to use them in legitimate

ways.” /d. at 370. The court instructed the legislature that

“[ajny statutory scheme [regulating these devices] . . . must

be compatible with the right of a person to engage in sexual

activities to the extent that right is encompassed within the

constitutional right of privacy.” /d. at 370, n.28.'!

B. Kansas

When faced with a similar law classifying sexual

devices as obscene and criminalizing their sale, the Kansas

Supreme Court reached the same conclusion. The court held

that the law under which the defendant had been prosecuted

“impermissibly infringe[d] on the constitutional nght of

privacy in one’s home or one’s doctor’s or therapist’s

office.” State v. Hughes, 792 P.2d 1023, 1032 (Kan. 1990).

In reaching this conclusion, the court relied extensively on

the testimony of Dr. Douglas Mould, a state certified

psychologist and sex therapist. /d. It also relied on the

authorities discussed by the Colorado Supreme Court in

Seven Thirty-Five, and concurred with that court’s

conclusion that a statute is impermissibly overbroad when it

impinges, without justification, on the sphere of

constitutionally protect privacy that encompasses the use of

sexual devices as therapy for medical and psychological

disorders. /d. at 1031. Acknowledging the importance of

the liberty interests at stake, the court concluded with the

following admonition:

When a state chooses to regulate matters

involving sensitive rights of its citizens, it is

obligated to do so in a manner that bears a

real and substantial relationship to the

objective sought, Nebbia v. New York, 291

U.S. 502 (1934), and is narrowly drawn to

express only those objectives, Carey v.

The court reserved for another day the broader question of

whether any regulation on the use and sale of these devices could pass

constitutional muster. 697 P.2d at 370, n.28.

Population Services International, 431 U.S.

678, 686 (1977).

Id. at 1032. Because the State had demonstrated “no interest

in the broad prohibition of distributing the [sexual] devices

in question sufficiently compelling to justify the

infringement of the mghts of those seeking to use them in

legitimate ways,” the court found the statute inconsistent

with the guarantee of liberty contained in the due process

clause of the federal constitution. Jd.

¢. Louisiana

When presented with a constitutional challenge to a

state law prohibiting the promotion of sexual devices, the

Louisiana Supreme Court did not adopt the fundamental

rights analysis applied by the Kansas and Colorado Supreme

Courts. State v. Brenan, 772 So. 2d 64, 69-70 (La. 2000).

Noting that this Court has not yet decided definitively

“whether lawful, private, sexual conduct is sheltered from

state interference by the Constitution,” the court insisted that

it had no occasion to determine whether “the government can

regulate aspects of non-commercial sexual activity.” Jd. at

72, n.5 (citing Carey, 431 U.S. at 689, n.5).'* As a result, the

court concluded that the restriction on advertising did not

implicate any federally protected fundamental nghts. /d. at

72.

Nevertheless, the court struck down the statute using

the more lenient rational basis standard of review, finding

that the prohibition did not bear any rational relationship to

Brenan obviously predated this Court’s decision in

Lawrence, and it is unclear whether the Louisiana Supreme Court would

have viewed Lawrence as answering this question.

the State’s interest in promoting morals and public order.'?

As an initial matter, the court observed that “the legislature

cannot make a device automatically obscene merely through

the use of labels.” Jd. at 74. The court then recounted

evidence ranging from the FDA regulations to the testimony

of experts from the scientific community demonstrating that

sexual devices have significant therapeutic value. /d. at 75-

76. Ultimately, the court concluded that, “[g]iven these

therapeutic uses, we cannot say that the State’s actions in

banning all devices that are designed or marketed pnmarily

for the stimulation of the human genitals without any review

of their prurience or medical use is rationally related to the

‘war on obscenity.” /d. at 76.

D. Texas

The Texas Court of Criminal Appeals, by contrast,

both applied the wrong analysis and reached the wrong result

in a challenge to that state’s sexual devices law. Yorko v.

State, 690 S.W.2d 260 (Tex. Crm. App. 1985). When

considering the question of whether a fundamental right was

burdened by the challenged statute, the majority justified its

distinction between contraceptives and other types of sexual

devices by noting that the former fell within the realm of

constitutionally protected liberty because they directly

implicated the decision to bear or beget a child, whereas the

latter did not. Jd. at 265. Because the statute did not

implicate any fundamental liberty interest, the court then

engaged in a rational basis review of the sexual devices

statute, and determined that it could be justified as a

legitimate exercise of the state’s police powers. /d. (finding

that state had an interest in “suppressing traffic in obscene

expression,” and could act to protect the ““social interest in

'S Again, because this decision predated Lawrence, the court

assumed that public morality standing alone was a sufficient justification

under rational basis review.

999

order and morality’ or ‘decency’” by outlawing sexual

devices) (internal citations omitted).

The dissenting judges, however, expressed frustration

at the majority’s overly constrained framing of the relevant

issue. As Judge Clinton noted in his dissent, the question

was not whether there was a fundamental right “to stimulate

human genital organs with an object designed or marketed as

useful primarily for that purpose.” /d. at 266 (Clinton, J.,

dissenting). Rather,

the question is more properly framed as

follows: Whether the constitutional nght of

personal privacy is broad enough to

encompass a person’s decision to engage in

private consensual sexual activity that

includes stimulating human genital organs

with an object designed to be pnmarily for

that purpose.

Id. at 267. Foreshadowing this Court’s decision in

Lawrence, Judge Clinton commented that if the decision to

engage in private sexual conduct is in fact “among the most

private and sensitive,” then the nght of the individual,

married or single, to make this decision in the first instance,

free from government intrusion, “must be practically

invulnerable.” /d. At a minimum, Judge Clinton observed,

the exercise of this mght cannot be infringed simply by “the

social interest in order and morality.” /d. (internal quotation

and citation omitted).

* * *

The issue presented in this case is not a mere

academic exercise. To the contrary, people have been, and

continue to be, prosecuted under these statutes. See

Morrison v. State, 526 S.E.2d 336 (Ga. 2000) (ruling that

there is “no constitutional mght to distribute obscene

material”); Regalado v. State, 872 S.W.2d 7, 9 (Tex. App.

1994) (rejecting an appeal from a conviction under the

obscene devices law by ruling that “[t]here is no fundamental

right to use obscene devices; therefore, restricting the

promotion of such devices does not infmnge on any

recognized fundamental right’); State v. Sewell, 233 S.E.2d

187 (Ga. 1977) (accepting state’s classification of sexual

devices as per se obscene, and rejecting defendant’s

constitutional defenses to prosecution), appeal dismissed for

want of substantial fed’l question, 435 U.S. 982 (1978)."*

Declaratory actions brought by those who face

prosecution have also been rebuffed. See PHE, Inc. v. State,

877 So. 2d 1244, 1248 (Miss. 2004) (finding “no

independent fundamental right of access to purchase sexual

devices”); This, That and the Other Gift and Tobacco, Inc. v.

Cobb County, Civ. Action 1:00-CV-2920-WBH (Nov. 8,

2004) (N.D. Ga.) (rejecting constitutional challenge to sexual

devices law, but expressing uncertainty as to whether the

furtherance of public morality is a sufficient rational basis to

sustain statute criminalizing distribution of sexual devices

against constitutional challenge).

In Lawrence, this Court reiterated in the clearest of

terms that “‘[i]t is a promise of the Constitution that there is a

realm of personal liberty which the government may not

enter.”” Lawrence, 539 U.S. at 578 (quoting Casey, 505 U.S.

'* On the strength of this Court’s dismissal of the appeal in

Sewell, the Fifth Circuit rejected a challenge to the Texas sexual devices

law. Red Bluff Drive-In, Inc. v. Vance, 648 F.2d 1020, 1028 (Sth Cir.

1981). Citing a paucity of evidence in the record developed at trial, the

court also refused to consider an equal protection claim regarding the

effect of this statute on handicapped individuals who wished to use

sexual devices in the privacy of their home. /d. (“With nothing more

than the naked legal conclusions on the record, we have no evidentiary

basis to sustain the plaintiffs’ proposed extension of the constitutional

guarantee of personal autonomy.’’).

at 847). As explained above, lower courts are interpreting

Lawrence in an improperly narrow manner, which is adding

to a split of authorities regarding a State’s power to interfere

with an individual’s personal choices regarding private,

consensual sexual activity. The Court should grant the writ

sought in this case to provide additional guidance with

respect “to the difficult question whether and to what extent

the Constitution prohibits state statutes regulating private

consensual sexual behavior among adults.” Carey, 431 U.S.

at 688, n.5.

CONCLUSION

For the reasons stated above, the Court should grant

certiorari. In the alternative, if the Court grants review in

Lofton v. Secretary of the Florida Department of Children

and Families, No. 04-478, it should hold this case until it

resolves the merits of that case because of the common

issues raised by both cases. See supra note 8.

Respectfully Submitted,

: Mark J. Lopez

Sy (Counsel of Record)

Supreme Court admission Steven R. Shapiro

pending Sharon M. McGowan ~~

Attorney at Law, P.C.

229 East Side Square

Huntsville, AL 35801

(256) 534-6565

American Civil Liberties

Union Foundation

125 Broad Street, 18th Floor

New York, NY 10004

(212) 549-2500

Michael L. Fees

Fees & Burgess, P.C.

213 Green Street

Huntsville, AL 35801

(256) 536-0095

Counsel for Petitioners

Dated: December 17, 2004

APPENDIX

APPENDIX A

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ALABAMA

NORTHEASTERN DIVISION

Civil Action No. 98-S-1938-NE

SHERRI WILLIAMS, B.J. BAILEY, BETTY FAYE

HAGGERMAKER, SHERRY TAYLOR-WILLIAMS,

ALICE JEAN COPE, and JANE DOE,

Plaintiffs,

BILL PRYOR, in his official capacity as the Attorney

General of the State of Alabama,

Defendant.

March 29, 1999

MEMORANDUM OPINION

The Alabama Legislature enacted an “Anti-Obscenity

Enforcement Act” during the Regular Session of 1989. The

Act subsequently was codified at Alabama Code §§ 13A-12-

200.1 to -200.10 41975) (1994 Replacement Volume). Nine

years later, dufing the 1998 Regular Session, the Alabama

Legislature amended various provisions of the Act through

passage of Alabama Act No. 98-467.’ Among other changes

wrought, section 6 of Act No. 98-467 extended Alabama

Code § 13A-12-200.27—which previously had applied only

' Act No. 98-467 was enacted on April 29, 1998, with an

effective date of July 1, 1998.

’ Prior to amendment, Ala. Code § 13A-12-200.2 (1975) (1994

Replacement Volume) read as follows: "

—~ &

ee Ms - 2 %9 g ee e 993

to the “distribution” of “obscene material’’—so as to

criminalize the distribution of “any device designed or

§ 13A-12-200.2. Distribution, possession with intent

to distribute, production, etc., of obscene material

prohibited; penalties.

(1) It shall be unlawful for any person to

knowingly distribute. possess with intent to distribute,

or offer or agree to distribute any obscene material for

any thing of pecuniary value. Any person who violates

this subsection shall be guilty of a misdemeanor and,

upon conviction, shall be punished by a fine of not

more than $10,000 and may also be imprisoned in the

county jail or sentenced to hard labor for the county for

not more than one year.

(2) It shall be unlawful for any person, being a

wholesaler, to knowingly distribute, possess with intent

to distribute, or offer or agree to distribute, for the

purpose of resale or commercial distribution at retail,

any obscene material for any thing of pecuniary value.

Any person who violates this subsection shall be guilty

of a misdemeanor and, upon conviction, shall be

punished by a fine of not more than $20,000 and may

also be imprisoned in the county jail or sentenced to

hard labor for the county for not more than one year.

(3) It shall be unlawful for any person to

knowingly produce, or offer or agree to produce, any

obscene material for any thing of pecuniary value.

Any person who violates this subsection shall be guilty

of a Class C felony. (Acts 1989, No. 89-402, p. 791, §

4.) :

The terms “obscene,” “material,” and “distribute” were

detined in Ala. Code §§ 13A-12-200.1(1), (2), and (3), reading as

follows:

(1) OBSCENE. Such term means that:

a. The average person, applying contemporary

community standards, would find that the material,

taken as a whole, appeals to the prurient interest; and

marketed as primarily useful for the stimulation of human

genital organs...”

(a)(1) It shall be unlawful for any

person to knowingly distribute, possess with

intent to distribute, or offer or agree to

distribute any obscene material or any device

designed or marketed as useful primarily for

the stimulation of human genital organs for —

any thing of pecuniary value. Material not

otherwise obscene may be obscene under this

section if the distribution of the material, the

offer to do so, or the possession with _the

intent to do so is a commercial exploitation of

erotica for the sake of prurient appeal. Any

person who violates this subsection shall be

guilty of a misdemeanor and, upon

conviction, shall be punished by a fine of not

b. The material depicts or describes, in a

patently offensive way, sexual conduct, actual or

simulated, normal or perverted; and

c. A reasonable person would find that the

material, taken as a whole, lacks serious literary,

artistic, political or scientific value.

(2) MATERIAL. Any book, magazine, newspaper,

printed or written matter, writing, description, picture,

drawing, animation, photograph, motion picture, film,

video tape, pictorial representation, depiction, image,

electrical or electronic reproduction, broadcast,

transmission, telephone communication, sound

recording, article, device, equipment, matter, oral

communication, live performance, or dance.

(3) DISTRIBUTE. To import, export, sell, rent, lend,

transfer possession of or title to, display, exhibit, show.

present, provide, broadcast, transmit, retransmit,

communicate by telephone, play, orally communicate

or perform.

more than ten thousand dollars ($10,000) and

may also be imprisoned in the county jail or

sentenced to hard labor for the county for not

more than one year. A second or subsequent

violation of this subdivision 1s_a Class C

felony if the second or subsequent violation

occurs _after_a conviction has been obtained

for_a_ previous violation. _Upon_a_second

violation, a corporation or business _ entity

shall_be_fined_not_less_than_ten_ thousand

dollars ($10,000) nor more than fifty thousana

dollars ($50,000).

1998 Ala. Acts 98-467, § 6, now codified at Alabama Code §

13A-12-200.2(a)(1) (Supp. 1998) (emphasis added to

language added by amendment).

For convenience, this court shall hereafter refer to the

statutory prohibition pertaining to “any device designed or

marketed as primarily useful for the stimulation of human

genital organs” in an abbreviated form, by the use of the

phrase “sexual devices.” or sometimes “proscribed devices.”

Six plaintiffs bring this action pursuant to 42 U.S.C.

$ 1983. challenging the constitutionality of Alabama Code §

13A-12-200.2(a)(1), as thus amended. These plaintiffs may

be bifurcated into discrete groups, each averring potential

harm from enforcement of the challenged statute: (1)

vendors of sexual devices (the “vendor plaintiffs”); and (2)

persons who use such devices (the “user plaintiffs”).

The first group includes plaintiffs Sherri Williams

and B. J. Bailey. Williams is the principal shareholder of

“Pleasures.” an Alabama corporation that owns and operates

two retail stores located in Huntsville and Decatur, Alabama,

respectively. both of which display and sell sexual devices

and novelties. Bailey is the principal investor in “Saucy

Lady. Incorporated.” an Alabama corporation selling sexual

devices and novelties, including vibrators, lubricants, and

oils. through in-home “*Tupperware’—style parties.” These

9 hsthse Dab a

vendor plaintiffs fear criminal prosecution under the subject

statute, and seek injunctive relief barring enforcement of it.

They also seek to bring suit on behalf of their customers,

who allegedly are reluctant to come forward “because of the

sensitive and intimately personal nature of the reasons for

using the product[s].” (Complaint, Doc. No. 1, {| 18.)

The second group of plaintiffs includes Betty Faye

Haggermaker, Sherry Taylor-Williams,’ Alice Jean Cope,

and Jane Doe. Each of these persons avers that she

personally uses sexual devices either for therapeutic

purposes related to sexual dysfunction, or as an alternative to

sexual intercourse. (/d., {{§| 29-33.)

All plaintiffs seek to enjoin Bill Pryor, the Attorney

General of the State of Alabama, from enforcing Alabama

Code § 13A-12-200.2(a)(1).° They contend implementation

of that statute will infringe upon their fundamental right to

privacy and personal autonomy secured by the United States

Constitution. Plaintiffs further argue that the challenged

legislation does not bear a reasonable relationship to a proper

legislative purpose.

4 The court offers as a point of clarification that plaintiff Sherry

Taylor-Williams is an individual resident of Alabama, whereas plaintiff

Sherri Williams is an individual resident of Florida.

> In their complaint, plaintiffs also named Timothy W. Morgan,

the District Attorney of Madison County, Alabama, as a defendant.

Morgan has since been dismissed, however. in accordance with a

stipulation of dismissal filed by plaintiffs on December 3. 1998.

(Document No. 32.)

6 “Federal courts [may] enjoin state officials to conform their

conduct to requirements of federal law.” Milliken v. Bradley. 433 U.S.

267. 289, 97 S.Ct. 2749, 2762, 53 L.Ed.2d 745 (1977). The doctrine of

Ex parte Young, 209 U.S. 123, 159-60, 28 S.Ct. 441, 426, 52 L.Ed. 714

(1908), allows a federal suit for prospective injunctive relief against a

state official, challenging the constitutionality of a state official's action

in enforcing state law. See Green v. Mansour, 474 U.S. 64, 68, 106 S.Ct.

423, 426, 88 L.Ed.2d 371 (1985).

Plaintiffs initially sought a temporary restraining

order, but formally withdrew that request on September 9,

1998, following an agreement among the parties stipulating

that “the status quo would be maintained and _ the

- amendments not enforced with respect to plaintiffs’ [sic],

pending the Court’s determination following a hearing on

plaintiffs’ claims for preliminary injunctive _ relief.”

(Plaintiffs’ request for expedited scheduling conference,

Doc. No. 27, at 4] 2.) No state adjudication has occurred, and

none is pending. The matter presently is before the court on

plaintiffs’ motion for permanent injunctive relief.’

OUTLINE OF DISCUSSION

I. STATEMENT OF UNDISPUTED FACTS

A. The Vendor Plaintiffs

1. Sherri Williams and “Pleasures”

2. BJ. Bailey and “Saucy Lady, Incorporated”

3. Other vendors of sexual devices

B. The User Plaintiffs

|. Betty Faye Haggermaker

2. Sherry Taylor-Williams

3. Alice Jean Cope

4. Jane Doe

Relevant Provisions of Alabama Law

Condoms, Virility Drugs, and Masturbation

Recognized Therapeutic Uses of the Proscribed

Devices

1. Federal Food and Drug Administration

regulations

2. Booksellers, magazine publishers, gift

shops, and Internet websites

pe he ©

” By means of an order entered on December 9, 1998 (Doc. No.

31), this court advanced the hearing on plaintiffs’ motion for declaratory

judgment and preliminary injunctive relief to a final hearing on the

merits.

3. Alfred Jack Turner, Ph.D.

4. Pepper Schwartz, Ph.D.

ll. ANALYSIS OF THE PARTIES’ CONTENTIONS

A. Standing to Sue

B. Framework of Analysis for Substantive Due

Process Claims

C. Does the Alabama Act Infringe on a Fundamental

Right?

Background: fundamental rights generally

Plaintiffs’ assertion of a fundamental right

The Attorney General's response

Decisions of other courts faced with this

issue

5. Breadth of the fundamental right to privacy

D. Rational Basis Review

1. | Conceivable state interests

2. Are the interests legitimate?

a. Banning public displays of obscene

material

b. Banning “the commerce of sexual

stimulation and auto-eroticism, for its

own sake, unrelated to marriage,

procreation[,] or familial

relationships”

c. Banning commerce of obscene

material

3. Is Alabama Code § 13A-12-200.2(a)(1)

rationally related to these legitimate state

interests?

a. Banning public displays of obscene

material

b. Banning “the commerce of sexual

stimulation and auto-eroticism, for its

own sake, unrelated to marriage,

procreation[,] or familial

relationships”

c. Banning commerce of obscene

material

(1) What can be classified as

“obscene”?

(2) What are the devices “designed

or marketed as useful primarily

for the stimulation of human

genital organs”?

(3) Are these devices obscene?

III. CONCLUSION

I. STATEMENT OF UNDISPUTED FACTS

The stipulation of facts filed by the parties on

December 3. 1998, is set forth in full immediately below.”

A. The Vendor Plaintiffs

1. Sherri Williams and “Pleasures”

1. Plaintiff Sherri Williams 1s a resident of Florida

and the owner and operator of “Picasures,” an Alabama

corporation doing business in Alabama. “Pleasures” has two

retail stores in Alabama, one located in Huntsville and one in

Decatur. Sexual aids and novelties are displayed and sold at

these locations.

: 2. The “Pleasures” store in Huntsville has been in

operation since June, 1993. It is located on a main

thoroughfare of Huntsville in a small shopping mall within a

retail business district. It is adjacent to other retail stores

which include an adult video store, a liquor store, a hair

* This court added the descriptive headings set out in boldface

type.

xe Ca an

salon, a spa, an O’Charley’s restaurant[,] and also a WalMart

Super Center just 150 feet to the rear.

3. The “Pleasures” store in Decatur has been in

operation since February, 1996. It 1s located on a main

thoroughfare of Decatur in a small shopping mall within a

retail business district. It is adjacent to other retail stores,

which include a Texaco, a chiropractor’s office, a pet

grooming facility, a tanning salon, a printer, a specialty kite

shop[,] and a women and children’s linen clothing store.

4. Both stores have brick storefronts with large

display windows which commonly display lingerie, massage

oils, adult games, hosiery, instructional videos, bath powders,

aromatherapy candles, romance novels, etc. They also have

standard wood signage on the glass front doors stating, =f, | |

offended by explicit sexuality, Please do not enter, You must

be 21 years of age.”

5. The products in both stores are displayed openly in

much the same way [that] products are displayed in a novelty

store.

6. The product line in both stores is adult oriented

and persons under the age of 21 are not permitted entry.

7. Both stores are strictly retail. There are no sexual

performances or video shows. The only services offered are

counseling on use of the product and the additional sale of

cakes, chocolates, and similar foods and various types of

coffee.

8. “Pleasures” does not purport to operate as or

resemble an adult bookstore, although a limited number of

adult oriented “soft porn” or “R” rated videos and magazines

are sold.

10a

9. The products sold at both stores include novelty

products with an adult theme, and items that are marketed to

facilitate sexual relations, such as condoms, lubricants, and

vibrators. A complete inventory list of the product{s]

available at “Pleasures” is attached.[’] Some of the products

sold may. Ms. Williams believes, be covered by the statute,

which Ms. Wiiliams believes may subject her, and/or her

agents, to arrest and prosecution.

10. “Pleasures” offers a large variety of romance

orientated products marketed simply as “Adventures in

Romance.” The product line represents the intimate, private,

and personal relations of the clientele. “Pleasures” promotes

an extensive line of lingerie, exotic oils, lotions, and

lubricants, gourmet chocolates, instructional video and

reading materials, marital aids, vibrating and non-vibrating

sexual aids.

11. There have been’ no arrests of Sherri

Williams. or her agents, in connection with the operation of

“Pleasures.”

12. The “Pleasures” store in Huntsville has

approximately 14,960 customers annually. In 1997,

approximately 22,440 items were sold, generating gross

revenue of approximately $448,837.00. Through July 1,

1998, approximately 10,060 items were sold, generating

gross revenue of approximately $201,314.00.

13. The “Pleasures” store in Decatur has

approximately 5,600 customers annually. In 1997,

approximately 8,455 items were sold, generating gross

revenue of approximately $169,093.00. Through July 1,

” Plaintiffs belatedly filed the inventory list (Doc. No. 40,

Exhibit A) on March 19, 1999.

lla

1998, approximately 5,170 items were sold, generating gross

revenue of approximately $103,438.00.

14. Customer interest in the products 1s varied. Many

use these products to avoid the possibility of sexually

transmitted diseases; while others use the products to better

stimulate intimate relationships with partners; there are those

who use the products to achieve sexual satisfaction not

otherwise available to them; and some use these products for

temporary or long-term sexual satisfaction when a partner is

not otherwise available. Many of “Pleasures’” customers

have even been referred to the store by therapists treating

them for sexual dysfunction or marital problems.

2. B. J. Bailey and “Saucy Lady, Incorporated”

15. Plaintiff B.J. Bailey is a resident of the State of

Alabama and the owner and operator of “Saucy Lady,

Incorporated,” an Alabama corporation doing business in

Alabama. “Saucy Lady, Incorporated,” conducts in-house

“Tupperware”-style parties at which sexual aids and novelties

are displayed and sold.

16. “Saucy Lady, Incorporated,” has been conducting

parties throughout Alabama since 1995, and prior to

incorporation since 1993.

17. “Saucy Lady” parties are conducted in the privacy

of a host home and are marketed exclusively to adult women.

Attendance is generated largely through word of mouth. No

advertising is conducted.

18. In 1997, approximately 770 “Saucy Lady” parties

were conducted throughout the [S]tate of Alabama. Through

July 1, 1998, approximately 380 parties were conducted.

12a

19. “Saucy Lady” parties were conducied in the

following counties in 1997-1998: Lauderdale; Lawrence;

Limestone; Madison; Jackson; Franklin; Morgan; Marshall;

Walker; and Shelby.

20. Attendance at “Saucy Lady” parties ranges from

3 to 35. Total attendance in 1997 was approximately 7,700.

Total attendance in 1998 (through July Ist) was

approximately 3,800.

21. At “Saucy Lady” parties, sexual paraphernalia,

aids and novelties are sold. A list of the product line is

attached.{'’] Some of these products may, Ms. Bailey

believes, be covered by the statute, which Ms. Bailey

believes may subject her[,] and/or her agents, to arrest and

prosecution.

22. In 1997, approximately 10,500 products were

sold, generating revenue of approximately $160,000.00. In

1998, through July Ist, approximately 5,250 products were

sold, generating revenue of approximately $80,000.00.

23. There have never been any arrests in connection

with “Saucy Lady” parties.

24. “Saucy Lady, Incorporated,” does not advertise its

business, which grows from referrals from parties. Ms.

Bailey is invited into a host’s home, where she shares

“romance-enhancing” information for an hour with the guests

who attend the party.

25. Ms. Bailey is self-taught, and makes no claim to

be a counselor of any kind. If Ms. Bailey becomes aware of

extreme cases of sexual dysfunction, she refers them to a

° Plaintiffs belatedly filed the product list (Doc. No. 40, Exhibit

B) on March 19, 1999.

1 5a

nabdiauiehsalaaiiall

13a

medical doctor and/or psychotherapist. She also refers

women who report abuse to the local women’s shelter, Hope

Place. Ms. Bailey describes her business as focused on ways

to help couples make their marriage stronger through better

communication, by understanding each other's bodies], ] and

by considering how their partner views their intimate

relationship.

26. “Saucy Lady” customers include married,

single[,] and divorced adult women from 19 to 70 years of

age (thus far), and of diverse religious, racial, and ethnic

backgrounds, and varied professions and occupations. These

women vary greatly in their level of sexual experience and

knowledge. If called to testify, Ms. Bailey would testify that

the majority of women who attend her parties have shared

with her that they were either anorgasmic or had extreme

difficulty reaching orgasm through sexual intercourse alone.

Some of these customers have consulted a doctor or therapist

about these issues. A great many customers have reported to

Ms. Bailey that the products they purchased helped them to

become orgasmic and greatly improved their marital and

sexual relations.

27. If called to testify, Ms. Bailey would testify that

many women have also shared with her that they wished to

avoid sexual relations with others because of the risk of

sexually transmitted diseases, prior negative relationships or

other risks associated with developing an_ intimate

relationship. Some women are unable to establish a

relationship with another person, but still wish to be sexually

active. These women often purchase sexual aids or devices

so that they can achieve their personal sexual goals in this

respect within the privacy of their homes without involving

another person.

3. Other vendors of sexual devices

14a

28. Until the adoption of section 13A-12-200.12 of

the Alabama Code, the products sold by “Pleasures” and

“Saucy Lady, Incorporated,” were available for sale within in

the State. Sex boutiques specializing in romance enhancing

products and novelties operate in virtually every major city in

Alabama and cities throughout the United States. Moreover,

the products are available through mail order catalogues and

the Internet.

B. The User Plaintiffs

1. Betty Faye Haggermaker

29. Plaintiff Betty Faye Haggermaker is a resident of

the State of Alabama and a user of the types of devices which

the new Alabama _ statute seeks to _ proscribe. Ms.

Haggermaker is a 43 year-old married woman who uses the

devices with her husband of twenty-five years, both to

enhance their intimate relationship and to assist her in over-

coming [sic] orgasmic difficulties. Ms. Haggermaker is a

customer of “Saucy Lady, Incorporated.”

30. During the second decade of Ms. Haggermaker’s

marriage, mcluding the time period after she had a partial

hysterectomy, it was very difficult for her to achieve orgasm.

She has now used for approximately the last four years[,] and

continues to use[,] marital aids to improve her intimate

relationship with her husband and to achieve orgasm.

2. Sherry Taylor-Williams

31. Plaintiff Sherry Taylor-Williams is a resident of

Alabama and a user of the types of devices which the new

Alabama statute seeks to proscribe. Ms. Taylor-Williams 1s a

48 year-old woman who has been divorced and is now single.

Ms. Taylor-Williams first began using sexual devices on the

advice of her medical doctor after experiencing five years of

15a

marital intimate relations without being able to achieve

orgasm. Without such devices, Ms. Taylor-Williams is

anorgasmic. Ms. Taylor-Williams is a customer of “Saucy

Lady, Incorporated.”

3. Alice Jean Cope

32. Plaintiff Alice Jean Cope is a resident of Alabama

and a user of the types of devices which the new Alabama

statute seeks to proscribe. Ms. Cope is a 30 year-old married

woman who uses the devices in her intimate relations with

her husband. The marital aids have been used as a door to

open communication by Mrs. Cope and her husband. Before

beginning use of such sexual devices approximately one year

ago, Ms. Cope was anorgasmic for approximately the last ten

years, even though she was sexually active during that time

period. Ms. Cope is a customer of “Saucy Lady,

Incorporated.”

4. Jane Doe

33. Plaintiff Jane Doe is a resident of Alabama and a

user of the types of devices which the new Alabama statute

seeks to proscribe. Ms. Doe is a 50 year-old woman who is

now single, but has previously been married and divorced.

Ms. Doe began using sexual devices as a means to combat

post-partum depression and to help her marital relationship.

Her use of such devices was approved of and encouraged by

her therapist. Using marital aids to reach orgasm improved

Ms. Doe’s marital relationship and helped her to overcome

depression. Ms. Doe currently uses the devices to avoid the

possibility of contracting sexually transmitted diseases. Ms.

Doe is a customer of “Saucy Lady, Incorporated.”

C. Relevant Provisions of Alabama Law

l6a

34. Pursuant to section 13A-12-200.2 of the Alabama

Code, it is unlawful to sell or otherwise distribute obscene

material. This has been the law in Alabama since at least

1975. In 1998, this provision of Alabama’s criminal code

was amended to prohibit the sale or distribution of any device

designed or marketed primarily for the stimulation of human

genital organs (“sexual aids,” “sexual devices” or “marital

aids”). The law went into effect on July 1, 1998.

Enforcement of the ban will make it a crime to sell or

distribute any device designed or marketed as primarily

useful for the stimulation of human genital organs for any

thing of pecuniary value. The only way to obtain marital aids

will be to purchase or otherwise obtain them in another state

and bring the product back across state lines. Alternatively, a

visiting friend or other person can bring them across state

lines and provide them to Alabama residents, provided a sale

is not involved.

D. Condoms, Virility Drugs, and Masturbation

35. The text of the statute does not define sexual

devices as obscene per se[,] or purport to regulate them on

the grounds that they may be obscene as that term is defined

in the statute. The statute simply declares that it is unlawful

to sell, distribute[,] or produce any devices designed or

marketed as primarily useful for the stimulation of human

genital organs for any thing of pecuniary value. The

legislative basis or rationale for the enactment of the

prohibition against the sale of sexual devices does not appear

in the statute or in the statement of legislative findings.’

'' The parties’ stipulation notwithstanding, the court notes that

the Alabama Legislature included its basis and rationale for Act No. 98-

467 in section one of that Act. See Part II.D.1 infra.

17a

36. Ribbed and tickler condoms are manufactured in

Alabama and sold throughout the [S]tate as well as

nationally.

37. Virility drugs, such as Viagra, are also available

in Alabama.

38. The laws of the State of Alabama do not per se

prosecute masturbation or other stimulation of the genitalia

— even when performed with a sexual aid. It is only the sale

of such devices that is proscribed. Note: This conduct may

be unlawful if performed in conjunction with another illegal

act, such as public lewdness, or moiestation.

E. Recognized Therapeutic Uses of the Proscribed

Devices

39. The plaintiff “sellers” of the products in this case

have customers with a wide variety of therapeutic needs. A

number of purchases are by anorgasmic women for which the

use of a vibrator or similar device is the standard treatment

recommended by therapists. Such a vibrator may or may not

be penis shaped and may or may not be used for vaginal

insertion. Because of the sensitive and intimately personal

nature of the reasons for using the products, most users of the

products are understandably reluctant to come forward and

challenge this law.

40. Women who are anorgasmic have difficulty

achieving orgasm through sexual intercourse, masturbation{, |

or other stimulation of the genitalia. The inability to achieve

orgasm through sexual intercourse is a recognized and

treatable medical condition. In the opinion of some medical

and psychological professionals, failure to treat the condition

may not only jeopardize the women’s physical and

physiological health, but may also destroy a marriage or

relationship. For this reason, many married and unmarried

18a

couples seek out therapy or advice on how to treat this

condition.

41. There are at least three reasons for use of a

vibrator by anorgasmic women. First, some women may be

less physiologically responsive than others. The vibrator is

helpful for these women in the same manner as are the

vibrators commonly used by physical therapists in the

treatment of people with cerebral palsy. In treating cerebral

palsy, the vibration has a specific effect on the sensory and

motor enervation of the muscle. A vibrator is used in sex

therapy to cause vibration to go through the pubic bone to the

sensory endings called muscle spindles within the pelvic

musculature. This helps lower the physiological threshold

for initiating the spinal reflex.

42. The second reason for using a vibrator in dildo

form is to lower a patient’s inhibitions and produce intense

stimulation that is difficult or impossible to duplicate

manually. This is especially helpful to women who have

built up a history of nonorgasmic sexual experiences, which

causes what is called orgasmic inhibition.

43. Another reason for use of a vibrator in dildo

form, or a dildo alone, is for women who have relaxed pelvic

muscles which cause the orgasmic response to be less intense

than usual. These women are prescribed Kegel’s exercise,

with a dildo or dildo-type vibrator inserted to provide

resistance. This exercise is essential for women suffering

urinary stress incontinence. Many women suffer varying

degrees of incontinence at some point in their lives. The

condition is often caused by the stretching of the pelvic

. ligaments during childbirth, which causes the bladder to

prolapse. Kegel’s exercise, in which the circumvaginal

muscles are contracted and strengthened, is universally

acknowledged as the most effective way of avoiding urinary

stress incontinence, short of surgery.

19a

1. Federal Food and Drug Administration regulations

44. The Food and Drug Administration has

promulgated the following regulations concerning powered

vaginal muscle stimulators and genital vibrators:

§ 884.[5940]. Powered vaginal muscle

stimulator for therapeutic use.

(a) Identification. A powered vaginal

muscle stimulator is an electrically powered

device designed to stimulate directly the

muscles of the vagina with pulsating electrical

current. This device is intended and labeled

for therapeutic use in increasing muscular tone

and strength in the treatment of sexual

dysfunction. This generic type of device does

not include devices used to treat urinary

incontinence.

(b) Classification. Class III (premarket

approval).

[....]

§ 884.5960. Genital vibrator for therapeutic

use.

(a) Identification. A genital vibrator

for therapeutic use is an electrically operated

device intended and labeled for therapeutic

use in the treatment of sexual dysfunction or

as an adjunct to Kegel’s exercise (tightening

of the muscles of the pelvic floor to increase

muscle tone).

)

20a |

(b) Classification. Class I]

(performance standards).

21 C.F.R. §§ 884.[5940] & 884.5960 (1984)

45. Various studies estimate that 20% of all sexually

active women have used a vibrator at some point during their

lives. Therapists sometimes direct patients to adult stores to

find suitable vibrators for therapy purposes. If vibrators and

related products, such as oils and lubricant, were not readily

available to the public, anorgasmic women who want to

obtain such products would have to leave the [S]tate to do so

or obtain them by other means.

46. Some of the plaintiff “users” of the products in

this case are indeed anorgasmic and have purchased vibrators

to treat their condition. _Many customers of the plaintiff

“sellers” in this case use sexual aids for these purposes as

well. Some of these individuals have acted on the

recommendation or approval of a therapist or medical doctor,

while others may have acted on the recommendation of a

husband, lover, friend, or popular literature freely available in

the community.

47. A separate category of purchasers of the vibrators

and other types of sexual devices covered by the challenged

Statutory provision are individuals for whom _ sexual

intercourse may not be an option for a number of reasons,

including a medical condition or physical handicap. Fear of

contracting or spreading AIDS or another sexually

transmitted disease 1s compelling grounds to avoid sexual

intercourse, the availability of condoms notwithstanding.

There are many individuals who would prefer to play it safe

rather than risk their life with a one-night-stand.. Many of the

plaintiff “sellers’” customers fall into this category.

2la

48. Sexual intercourse may not be an option for other

reasons as well. An individual may be unable or simply

unwilling to find a spouse or take on a serious or casual

lover. This may be the result of an individual’s physical

appearance, personality, philosophy, or even the person’s

age, particularly if it is advanced. Thus, in addition to the

women who use vibrators as a therapeutic device, a number

of the individual plaintiffs in this case simply use vibrators

and other devices as an alternative to sexual intercourse.

49. This decision is a matter of preference or may be

the only viable way of obtaining sexual gratification because

of the unavailability of a spouse or lover. Many of the

plaintiff “sellers’” customers fall into this category.

50. One of the “user” plaintiffs in this case uses a

vibrator or dildo-type device as an alternative to sexual

intercourse for one or more of the reasons set out in the

preceding paragraph.

2. Booksellers, magazine publishers, gift shops, and

Internet websites

51. Barnes and Noble bookstore is located on

University Drive in Huntsville, Alabama. Waldenbooks

bookstore and Spencer Gifts shop are both located in

Madison Square Mall in Huntsville. The Wal-Mart

department store and Whispers, an adult novelty shop, are

also located on University Drive. Except for Whispers,

which restricts admittance to persons over 21 years of age, all

of these stores are open to the general public.

52. Barnes and Noble sells a number of books which

describe the use of vibrators/sexual aids to assist women in

achieving orgasm and to help generally in sexual

relationships. The following books are available at Barnes

and Noble:

22a

Becoming Orgasmic: A Sexual and Personal

Growth Program for Women, Julia R.

Heiman, Ph.D., and Joseph Lopiccolo, Ph.D..,

1988, Prentice Hall Press[;]

The Complete Guide to Women’s Health, 3rd

Revised Edition, Bruce D. Shepard, M.D.,

F.A.C.O.G. and Carroll A. Shepard, R.N.[,]

Ph.D., 1997, First Plume Printing[;]

Healthy Sex, Dr. Miriam Stoppard, 1998, DK

Publishing Book[;]

The Kinsey Institute New Report on Sex:

What You Must Know To Be_ Sexually

Literate, June M. Reinisch, Ph.D.[,] with

Ruth Beasley[,] M.L.S., 1990, St. Martin’s

Press|: ]

The New Good Vibrations Guide to Sex,

Cathy Winks and Anne Semans, 1997, Cleis

Press Inc.[;]

Our Bodies, Ourselves for the New Century,

1998, Boston Women’s’ Health Book

Collective, 1998, Simon & Schuster[;]

Sex For One: The Joy of Selfloving, Betty

Dodson, Ph.D., 1996, Three Rivers Plus[;]

Sex Over 40, Saul H. Rosenthal, M.D., 1987,

Tarcher/Putnam]; }

Sexual Pleasure: Reaching New Heights of

Sexual Arousal & Intimacy, Barbara

Kessling, Ph.D., 1993, Hunter House, Inc.[;]

23a

A Woman’s Guide to Overcoming Sexual

Fear & Pain, Aurelie Jones Goodwin, Ed.D.[,]

and Marc E. Agronin, M.D., 1997, New

Harbinger Publications, Inc.

Excerpts from the above titles are attached to the affidavit of

Amy Louise Herring as Exhibit “A”, submitted in support of

Plaintiffs’ Motion for a Temporary Restraining Order and

Preliminary Injunction. Each of these books describe and

recommend the use of vibrators as a sexual aid.

53. Waldenbooks also has a variety of titles which

discuss vibrators and their use in achieving orgasm and

enhancing sexual relationships. The following books are

available at Waldenbooks:

Changing Positions: Women Speak Out On

Sex And Desire, Joanne Marrow, Ph.D.,

1997, Adams Media Corporation{;]

The Guide To Getting It On!: A New and

Mostly Wonderful Book About Sex, Goofy

Foot, 1996, The Goofy Foot Press[.!

Attached to the affidavit of Amy Herring as Exhibit “B” are

excerpts from those books. Those books describe and

recommend the use of vibrators as a sexual aid.

54. Spencer Gifts offers for sale a number of vibrators

from a variety of available products. Copies of portions of the

exterior packaging of three of these items are included as

Exhibit “C” in the affidavit of Ms. Herring. The packaging

of each of those items indicates that the items are intended to

be used in sexual activities.

55. Two of the books available in Huntsville’s

bookstores, entitled Sex Over Forty and Becoming Orgasmic,

24a

described a commonly sold body massager and how it could

be used to stimulate the human genitalia. A device meeting

this description is located in the personal appliance section of

Wal-Mart on University Drive. A copy of a portion of the

exterior packaging of this product is attached to the affidavit

of Ms. Herring as Exhibit “D”. Although nothing on the

package suggests the use of the product for such stimulation,

the instructions provided in Sex Over Forty and Becoming

Orgasmic clearly indicate that this product may be used

successfully for the stimulation of the human genital organs.

56. Numerous magazines available in Huntsville

contain advertisements for sexual aids available by mail

and/or articles about the use of sexual aids to achieve orgasm.

The following magazines are sold locally:

Complete Woman, June/ July 1998 (Obtained

from B.J. Bailey on July 9, 1998)[;]

Cosmopolitan, July 1998 (purchased at

Barnes & Noble on July 9, 1998)[;]

McCall’s, April 1998 (purchased at Barnes &

Noble on July 9, 1998)[;]

Redbook, July 1998 (purchased at Barnes &

Noble on July 9, 1998)[;]

Scientific American Presents _ Women’s

Health, Quarterly, Display until August 31,

1998 (purchased at Barnes & Noble on July 9,

1998)[;]

Sex Life, #4 (purchased at Barnes & Noble on

July 9, 1998)[.]

25a

Copies of ads and/or articles found therein are included as

Exhibit “E” in the affidavit of Ms. Herring.

57. The Internet contains numerous web sites which

featured the sale of sexual aids. The following sites are

available:

“Action Girl Toys,”

http://www. girltoys.com{;]

“Acts of Love: Toys & Video,”

http://www.barelake.com/ cat2.html[;]

“Condoms, etc.,”

http://www.condomsetc.com{;]

“Good Vibrations - Toys,”

http://secure.goodvibes.com/cgi-bin/menu...

=PJFWPXSPZNFRSNCM&sub=toys&docs=

index.html|[;]

“Kamma Sutra,”

http://www.pleasureplay.com/shop.htm][;]

“Secret Toys,”

http://www.secrettoys.com/sextoys/menu.html[;]

“TOYBOX erotica,”

http://www.toyboxerotica.comtbstlc.htm{. ]

Excerpts from the sites are attached as Exhibit “F” in Ms.

Herrings’s affidavit.

3. Alfred Jack Turner, Ph.D.

58. Dr. Alfred Jack Turner is a clinical psychologist

in private practice in Huntsville, Alabama and an expert in

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the fields of clinical psychology and human sexuality. In the

past, he has testified in that capacity. Dr. Turner is an expert

for purposes of FRE 702 in the field of clinical psychology

and the treatment of sexual disorders. The bases of his

opinion and testimony comport with FRE 703. Dr. Turner

has been in private practice since 1978. Before that, he was

the Associate Director of the Huntsville-Madison County

Mental Health Center from 1970 until 1978. Dr. Turner was

a faculty member at Auburn University from 1964 until

1970, first as an Assistant Professor of Psychology (1964-

1967) and later as an Associate Professor of Psychology

(1967-1970); serving also as a member of the University of

Alabama in Huntsville.

59. Dr. Turner was a consultant for the National

Aeronautics and Space Administration (“NASA”) in

Huntsville from 1963 to 1975. He served as a member of the

Alabama State Board of Examiners in Psychology from 1966

to 1972 and as a member of the Professional Advisory Board

of the State (Alabama) Mental Health Association from 1967

to 1970. He was a consultant to the Alabama Mental Health

Association (1963-1970), the OEO Programs in Lee and

Macon Counties, Alabama (1966-1969), the Tuskegee

Mental Health Clinic (1964-1969), the Veteran’s

Administration Hospital, Tuskegee, Alabama (1964-1969;

also Coordinator of Group Therapy from March, 1966), and

the Jackson County, Morgan County[,] and Tri-County

Mental Health Clinics (1962-1964).

60. Dr. Turner received his Ph.D. in Psychology from

Florida State University in 1962. He served an Internship in

Clinical Psychology at the University of Louisville during

1961-1962. He received the Bachelor of Science Degree in

Physical Education from Auburn University (1954). He also

pursued post-graduate ‘studies in psychology at Emory

University (1956-1957) and Auburn University (1957-1958).

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61. Dr. Turner holds professional memberships in the

American Psychological Association, the Southeastern

Psychological Association, the Alabama _ Psychological

Association (President 1967-1968, Chairman, Committee for

Training and Salary Standards for Psychologists in Alabama

and Committee on Insurance), the American Association of

University Professors, Phi Delta Kappa, Phi Chi, and the

Association for the Advancement of the Behavioral

Therapist. Dr. Turner’s vita is attached hereto as an

additional reference and also lists honors received and

describes his dissertation and professional publications.

62. If called to testify, Dr. Turner would testify that

in his practice in clinical psychology, he principally counsels

patients who have experienced sexual dysfunction or other

sexual problems. Many of his female patients have difficulty

in achieving orgasm and, in some cases, have never achieved

orgasm. Dr. Turner regularly recommends the use of

sexual/marital aids such as vibrators to his patients to assist

them in overcoming sexual dysfunction and other sexual

problems. Reports from his female patients have indicated

that sexual aids have helped them in achieving orgasm,

sometimes after many years of frustration and difficulty tn

their sexual relationships.

63. If called to testify, Dr. Turner would testify that

he also sometimes counsels older persons or disabled persons

who are having difficulties with sexual expression. The use

of sexual aids such as vibrators is also extremely helpful in

these situations, especially when sexual intercourse is not

possible due to physical limitations or lack of a partner.

64. If called to testify, Dr. Turner would testify that

other situations in which he has recommended the use of

sexual aids to aid in overcoming sexual difficulties have

included persons who are not able to have a sexual partner

due to fear of sexually transmitted diseases, emotional

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attachment|.}. or other perceived dangers of sexual

relationships, both real and imagined. He has counseled

some patients who were unable to locate appropriate sex

partners due to lack of physical atiractiveness or obesity.

Sexual aids have provided an appropriate outlet for sexual

expression for these patients as well.

65. It is Dr. Turner's professional opinion[,| based on

his years of experience in sexual therapy and counseling.

[that the] expression of sexuality, including the successful

experience of orgasm, are important aspects of a person's

overall mental health. His professional opinion is that the

sexual experience[,] culminating in- sexual climax or

orgasm|,| builds self-esteem and confidence, relieves stress[,|

and has been clinically proven to generate and release

hormones which aid in the achievement of an appropriate

mental balance and positive outlook on life situations in

general. In his practice, he has frequently seen sexual aids

help in the re-vitalization of potentially failing marital

relations as well.

4. Pepper Schwartz, Ph.D.

66. Dr. Pepper Schwartz is a Professor of Sociology

at the University of Washington Department of Sociology in

Seattle, Washington, where she has done research and taught

classes since 1972. She is a nationally renowned expert in

the field of human sexuality and has also testified on the

subject on numerous occasions. Dr. Schwartz is an expert for

purposes of FRE 702 in the field of human sexuality. The

bases of her opinion comports with FRE 703.

67. Dr. Schwartz's teaching has included courses on

the contemporary family, the history of the family, gender

and the family, gender and sexuality, the social organization

of human sexuality, qualitative methodology[,] and other

topics. At this university, Dr. Schwartz has also served on

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the executive, recruitment, admissions, and development

committees of her department[,] and took a leave of absence

to be a Special Assistant to the Provost for two years.

68. Dr. Schwartz received her Ph.D. from Yale

University in 1974. She received a M.Phil. from that

University in 1970, a M.A. from Washington University (in

St. Louis) in 1968[,] and a B.A. from Washington University

in 1967.

69. Dr. Schwartz was elected President of the Society

for the Scientific Study of Sex, an international association of

sex researchers, in 1992-93[,] after having served as

President of the Western region of that organization in 1989-

91. Among other national offices and services[] Dr. Schwartz

has performed, she was elected to the Committee of

Publications for the American Sociological Association

1995-98, appointed to the American Medical Association

review committee on Human Papilloma Virus Consensus

Group in 1997[,] and the Yale Council Committee on the

Social Sciences 1989-1993.

70. Dr. Schwartz is on the editorial board of a

number of sociological and sexological publications[.]

including the Journal of the International Network on

Personal Relations, Sexual Health[] (senior editor), and the

Journal of Personal Relationships. She has served as a

reviewer for many other journals[,] including the American

Sociological Review, the Journal of Marriage and the Family,

the Journal of Family Issues, etc. She has also served on

several review committees for the National Institute of

Health.

71. Dr. Schwartz has been asked to give expert

testimony on a number of important issues in her field and

has served on national commissions. She was asked to give

testimony in Baehr v. Department of Health, \st Circuit

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Court of Hawai, on the issue of gay marriage and marriage

in the United States, and on sexuality in the military in

Federal Court in New York City in the 2nd Circuit on the

comparisons of heterosexual and homosexual practices. She

has also given testimony to the United States Commission on

AIDS. Dr. Schwartz served on the National Committee on

Sexual Education for Planned Parenthood, the National

Committee on Sexuality and the Media for S.E.I.C.U.S.[]

(sex education, information council of the United States)[,]

and for the National Commission on Adolescent Sexual

Health. In 1984, Dr. Schwartz served on President Ronald

Reagan's Advisory Roundtable on the Family.

72. Dr. Schwartz is the author of eleven books, most

of a scholarly nature, among them The Gender of Sexuality

(with Virginia Rutter) Pine Forge, 1998, Peer Marriage, Free

Press, 1994, Gender and- Intimate Relationships (with

Barbara Risman and others) and American Couples (Wm.

Morrow, 1983). She also writes for a general audience and

writes nationally syndicated columns for American Baby

Magazine on relationships and sexuality and Glamour

Magazine (with Janet Lever) on Sex and Health. She has

also written The Great Sex Weekend (with Janet Lever;

Putnam, 1998) which, among other information, discusses

the use of vibrators in sexual enhancement. The newest

popular books Dr. Schwartz has written will be published

next year, What | Learned about Sex; Wisdom _ from

America’s Sex Educators, Counselors, and Researchers (with

Debra Hafner; Putnam, 1998) and 201 Questions for Parents

to_ask Children/ 201 Questions for Children to ask Parents,

Avon, 1999. Dr. Schwartz has also published over 40

academic articles. More specific information is included in

her vita.

73. If called to testify, Dr. Schwartz would testify

that based on her review of the literature, her interviews with

hundreds of couples about their sex lives, and her receipt of

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thousands of questionnaires and letters from both men and

women, she has concluded that vibrators are a commonly

accepted form of sexual pleasure, release and therapy in the

United States, most usually used in couple relationships, but

also used by women and men alone.

74. If called to testify, Dr. Schwartz would testify

that her research and experience indicates that some of the

earliest discussions of vibrators and dilators (often popularly

called dildos) appears in the therapeutic literature in the early

work of William Masters and Virginia Johnson in which they

used both devices to measure female sexual functioning. The

work they did would have been impossible to accomplish

without these devices and they helped establish base line data

on orgasmic capacity and dysfunction. Later work by

Masters, Johnson[,] and Kolodny helped establish that

vibrators and dilators were useful for helping establish

Orgasmic capacity in anorgasmic women and also for re-

establishing capacity in gerontological populations. They

also did some work in helping women who had little or no

sexual feeling establish sexual feeling.

75. If called to testify, Dr. Schwartz would testify

that her research and experience indicates that the field of

modern sex therapy was essentially established with the work

of Masters, Johnson, and Kolodny, although sexual therapy

per se has been practiced for hundreds of years and there is

advice on how to be sexually functional in the most ancient

of tracts. This is because, throughout the ages, people have

realized that sexual functioning is an important part of human

mental health -- not just for the purposes of reproduction, but

also for promoting health, happiness, and relationship

bonding.

76. If called to testify, Dr. Schwartz would testify

that her research and experience also indicates .hat modern

sexual therapy now believes that masturbation is an

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important adjunct to sexual functioning[.] and that

masturbation 1s a healthy rehearsal to establish knowledge

about one’s body and the ability to give and receive pleasure.

While it might seem that everyone could accomplish

masturbation manually, in fact, some women do _ not

masturbate competently, this 1s sometimes because of

misinformation, and other times because there may be

problems with blood flow into the vaginal area.

77. If called to testify, Dr. Schwartz would testify

that her research and experience indicates that vibrators

produce an intense stimulation that creates more blood flow,

more quickly for some women{[,] and thus is recommended

by therapists as a way for creating enough sexual arousal for

women who are having trouble increasing arousal enough to

have an orgasm, or even to enjoy sexual intercourse. This 1s

therapy for couples who are having sexual problems in their

marriage, but also for women without partners who want to

be able to experience sexual arousal and satisfaction. This

also includes older women who may be widowed and would

like to stay sexually active[,] even if they do not have a

partner[,| and the disabled[,] who may never have a partner[,]

or who, because of their disability, did not have the usual

gradual sexual socialization and haven't learned how to make

their body work for them and need assistance.

78. If called to testify, Dr. Schwartz would testify

that her research and experience indicates that sex therapy

has grown because so many people now value a high level of

sexual functioning. Still, there are very few places that

doctors and psychologists can send their patients to buy

sexual devices. There are some mail order catalogues[,] but

doctors do not always know about them[,] and individuals

seeking this information may not know about them either. In

Dr. Schwartz's professional opinion, small stores specializing

in these devices are absolutely necessary so that individuals

can find the vibrators and dilators that will help them be

33a

functional. Furthermore, there are different size dilators and

different power vibrators[.] and it helps to be able to look at

them and find what is required. In circumstances of severe

dilation problems, for example, the physician might start with

very little intromission (entry with a small finger, for

example) and then, upon increasing the elasticity of the

vagina, use dilators of increasing size.

79. Dr. Schwartz’s research and experience also

indicates that[.] while the most problematic of sexual

problems may be relatively rare (having to dilate an almost

closed vaginal canal), there are numerous other reasons for

using a vibrator. These include: (1) learning how to have an

orgasm; (2) satisfying one’s desires before one is ready fora

partner: (3) use by the pathologically shy: (4) use by people

with grave physical and mental afflictions, etc.: (5) use after

divorce; (6) use in old age: or (7) use when one’s partner 1s

unavailable. One prominent study relied upon by Dr.

Schwartz stipulates that approximately 20% of American

women at least occasionally use a vibrator. The National

Sexual Health Study by Julia Heiman (University of

Washington) and Joseph Catania (UCLA) done in 1997

indicated about 10% of sexually active adults use vibrators in

their regular sex life.

80. Dr. Schwartz’s research and experience indicates

that almost every book on sexual therapy supports the use of

vibrators arid dilators as an important way to teach sexual

functioning. Anecdotal information from case studies of

women in these books confirms the utility of these sex

devices. The Harvard Women’s Medical book talks about

using dilators for Kegel’s exercises (strengthening the pelvic

muscles to make orgasm more likely or more intense or to

help reverse stress incontinence—a common problem in post-

menopausal women). An article by Clive Davis, et al.. in the

Journal of Sex Research in 1996, “Characteristics of Vibrator

Use Among Women,” shows that in a sample of women who

34a

have bought vibrators at one store, that these women use

them in partnered relationships, but most commonly alone.

Women tended to rate orgasms as more intense with vibrators

than in intercourse (see also Lonnie Barbach, For Yourself)[, |

but that 1s seen as an adjunct to partner relationships, not a

replacement.

81. Dr. Schwartz's research and experience also

indicates that several articles (“Help with Sexual

Difficulties’, “Drug Therapy Bulletin”, “The relationship

between mode of female masturbation and achievement of

orgasm in coitus”, Archives of Sexual Behavior, June 1983,

and others to be produced). establish that vibrators helped

anorgasmic - women, especially disabled women, reach

orgasmic potential. Even articles that say vibrators are less

effective than previously thought, find vibrators helping

produce orgasmic capacity at 47% of the treatment group.

(“The semantics of success: do masturbation exercises lead to

partner orgasm?” J.C. Wakefield, Journal _of Sexual and

Marital Therapy, Spring 1987.)

82. In the professional opinion of Dr. Schwartz

vibrators and dilators are of medical and psychological

benefit to women and their partners, an adjunct to marital and

sexual therapy and an absolute necessity in some kinds of

therapeutic approaches for sexual dysfunction.

(Stipulation of facts, Doc. No. 33.)

Il. ANALYSIS OF THE PARTIES’ CONTENTIONS

A. Standing to Sue

The federal concept of “standing” addresses the issue

of whether a particular person 1s the proper party to mount a

constitutional challenge to governmental action. See

generally, Charles Allen Wright, Law of Federal Courts § 13

—

35a

(Sth ed. 1994): Erwin Chemerinsky, Federal Jurisdiction 53

(2d ed. 1994). “In essence the question of standing 1s

whether the litigant is entitled to have the court decide the

merits of the dispute or of particular issues.” Warth v. Seldin.

422 U.S. 490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343

(1975). The Supreme Court has articulated the standing

requirement as part of the “case or controversy’ requirement

of Article III, Section 2 of the United States Constitution.

See Lujan v. Defenders of Wildlife, 504 U.S. 555. 560. 112

S.Ct. 2130, 2136. 119 L.Ed.2d 351 (1992). The doctrine of

standing mandates that a party seeking to invoke a federal

court's jurisdiction demonstrate three things: (1) an “injury

in fact”; (2) a causal relationship between the injury and the

challenged conduct; and (3) a likelihood that the injury will

be redressed by a favorable decision. See Northeastern

Florida Contractor v. Jacksonville, 508 U.S. 656. 663. 113

S.Ct. 2297, 2302, 124 L.Ed.2d 586 (1993).

The Attorney General challenges the vendor

plaintiffs’ ability to assert a challenge to Alabama Act No.

98-467 on behalf of their customers: that is, of unnamed

users of the proscribed devices. Clarifying this position at

oral argument, the Assistant Attorney General representing

defendant said: “[w]e think the sellers can have standing as

sellers of the products but not on behalf of the users. ... given

the fact that users are here” (emphasis supplied).

As an initial matter, this court finds that the vendor

plaintiffs independently satisfy standing requirements. See

Craig v. Boren, 429 U.S. 190, 194, 97 S.Ct. 451. 455. 50

L.Ed.2d 397 (1976). Furthermore, this court agrees with the

Attorney General's implicit concession that the user

plaintiffs have standing to assert a due process challenge.

Cf. Carey v. Population Services International. 431 US.

678, 683-84, 97 S.Ct. 2010, 2015, 52 L.Ed.2d 675 (1977).

As a consequence, it is not necessary to decide the standing

of the vendor plaintiffs to act as advocates for the rights of

36a

unnamed users of the proscribed devices.'~ See id. at 682, 97

S.Ct. at 2014. The Article II] “case or controversy”

requirement has been satisfied for the challenges to the

legislation presented 1n this action.

B. Framework of Analysis for Substantive Due Process

Claims

Plaintiffs claim enforcement of Alabama Code §

13A-12-200.2(a)(1)'* would impose an undue burden on

their “fundamental rights of privacy and personal autonomy

guaranteed by the First, Fourth, Fifth, Ninth[,] and

Fourteenth Amendments of the United States Constitution.”

(Plaintiffs’ corrected memorandum, Doc. No. 24, at 2.)

Plaintiffs thus assert that their right of privacy and personal

autonomy constitutes a “liberty interest” protected by the

Due Process Clause of the Fourteenth Amendment. Such

claims fall under the rubric and correlative analytical

- Generally, a plaintiff must assert his, her, or its own legal

rights and interests. The Supreme Court has recognized exceptions to

this general rule, however, including one in which third parties have not

and are not likely to assert their nghts and interests which are at stake.

The vendor plaintiffs in the instant case presumably rely upon this

exception, and likely could avail themselves of this exception in the

absence of the user plaintiffs. “[V]endors and those in like positions

have been uniformly permitted to resist efforts at restricting their

operations by acting as advocates of the rights of third parties who seek

access to their market or function.” Craig, 429 U.S. at 195, 97 S.Ct. at

456.

' The text of section 13A-12-200.2(a)(1) is set out on p. 3

supra. Subsections (a)(2) and (a)(3) of the same statute also were

amended by section six of Act No. 98-467. Subsection 200.2(a)(2)

applies the prohibition articulated in (a)(1) to wholesalers. Subsection

200.2(a)(3) now makes it “unlawful for any person to knowingly

produce, or offer or agree to produce” such material or devices.

(Emphasis supplied.) Although these other subsections contain

prohibitions similar to the ones contained in section 13A-12-200.2(a)(1),

and likely would be subject to a similar analysis, only subsection (a)(1) is

attacked in the instant case.

37a

framework of substantive due process claims. See. é.2.,

Washington v. Glucksherg, 521 U.S. 702. 4 Oe

2258, 2267-68, 138 L.Ed.2d 772 (1997).

The standard of scrutiny a legislative act faces when

challenged on such grounds depends upon whether the

statute burdens a “fundamental right.” If legislation

interferes with the exercise of a fundamental right, then that

legislation is subject to strict judicial scrutiny. The ensuing

inquiry asks whether the challenged governmental action is

justified by a compelling state interest, and whether the

Statute at issue is narrowly tailored to achieve that

compelling state interest through the least restrictive means

possible. See, e.g., Roe v. Wade, 410 U.S. 113, 155, 93 S.Ct.

70S, 728, 35 L.Ed.2d 147 (1973) (“Where certain

‘fundamental rights’ are involved, the Court has held that

regulation limiting these rights may be justified only by a

‘compelling state interest; ... and that legislative enactments

must be narrowly. drawn to express only the legitimate state

interests at stake.”’) (citations omitted).

If legislation does not burden a fundamental right,

however, then the act faces only minimal scrutiny: that is, a

“rational basis” standard. When reviewing legislation under

a rational basis test, courts ensure only that a legitimate

governmental interest supports the legislation, and, that the

resulting law bears a rational relation to that interest. See

Glucksberg, 117 §.Ct. at 2271: Reno v. Flores, 507 U.S. 292.

302-05, 113 S.Ct. 1429, 1447-49, 123 L.Ed.2d 1 (1993),

Thus, determining whether a_ particular statute

interferes with the exercise of a fundamental right 1s a

critical inquiry in the analysis of substantive due process

claims.

C. Does the Alabama Act Infringe on a Fundamental

Right?

Plaintiffs do not seek recognition of a fundamental

right. Rather, they seek extension of the “right to privacy”

38a

which the Supreme Court has recognized as fundamental in

certain contexts.

Plaintiffs frame the issue in this case as whether the

right to privacy “is broad enough to encompass an

individual's decision to engage in private sexual activity not

proscribed by law.” (Plaintiffs’ corrected memorandum, at

14 (emphasis in original).)

The Attorney ‘ieneral, on the other hand. contends

this case presents the . ‘owing question: “whether there is a

constitutional right to obtain dildos, vibrators, and other

marital aids “designed or marketed as useful primarily for the

stimulation of human genital organs.’” (Brief of Alabama

Attorney General, Doc. No. 35, at 4.)

In the opinion of this court, however, the issue at this

stage of analysis 1s neither as broad as plaintiffs suggest, nor

as narrow as the Attorney General defines it. Instead, this

court must decide whether the concept of a constitutionally

protected “right to privacy” protects an individual's liberty to

use devices “designed or marketed as useful primarily for the

stimulation of human genital organs” when engaging in

lawful, private, sexual activity. '”

1. Background: fundamental rights generally

The Supreme Court has recognized that the Due

Process Clause of the Fourteen. Amendment protects

individuals from state governmental interference with

specific liberty interests, not simply from physical restraint.

In so doing, the Court speaks in terms of “substantive due

process’ and “fundamental rights.” The Court also

consistently expresses or manifests its reluctance to expand

these notions and, therefore, the protection of the Due

Process Clause:

i4 . .

For a complete discussion of how this court frames the issue

presented by plaintiffs’ proposed extension of the fundamental right to

privacy, see Part I1.C.5, infra.

BEST AVAILABLE COPY

39a

[W]e “ha[ve] always been reluctant to expand

the concept of substantive due process

because guideposts for responsible

decisionmaking in this unchartered area are

scarce and open-ended.” Collins, 503 U.S., at

125. 112 S.Ct. at 1068. By extending

constitutional protection to an asserted right

or liberty interest, we, to a great extent, place

the matter outside the arena of public debate

and legislative action. We must therefore

“exercise the utmost care whenever we are

asked to break new ground in this field,” ibid.

lest the liberty protected by the Due Process

Clause be subtly transformed into the policy

preferences of the members of this Court,

Moore, 431 U.S., at 502, 97 S.Ct., at 1937

(plurality opinion).

Glucksberg, 117 S.Ct. at 2267-68.

These concerns have prompted the Court to maintain

focus on its proper role when reviewing legislative

enactments. Accordingly, the Court adheres to an analytical

method with two principal guidelines: (1) “the Due Process

Clause specially protects those fundamental rights and

liberties which are, objectively, deeply rooted in this

Nation’s history and tradition, ... and implicit in the concept

of ordered liberty, such that neither liberty nor justice would

exist if they were sacrificed,” id. at 2268 (citations and

internal quotation marks omitted); and (2) substantive due

process claims require “a careful description of the asserted

fundamental liberty interest. ...°, id. (citations and internal

quotation marks omitted). In accordance with these

amorphous guidelines, the Supreme Court looks to the

history, legal traditions, and practices of this Nation as

“guideposts for responsible decisionmaking, ... that direct

40a

and restrain [the Court's] exposition of the Due Process

Clause.” /d.

Recently, in Hashington v. Glucksherg, S521 U.S.

702, 5 117 S.Ct. 2258, 2267-68, 138 L.Ed.2d 772 (1997),

the Court catalogued the opinions in which it had invalidated

state laws because they infringed on an_ individual's

fundamental rights.

In a long line of cases, we have held that, in

addition to the specific freedoms protected by

the Bill of Rights, the “liberty” specially

protected by the Due Process Clause includes

the nghts to marry, Loving v. Virginia, 388

U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010

(1967): to have children, Skinner v. Oklahoma

ex rel. Williamson, 316 U.S. 535, 62 S.Ct.

1110, 86 L.Ed. 1655 (1942): to direct the

education and upbringing of one’s children,

Mever v. Nebraska, 262 U.S. 390, 43 S.Ct.

625, 67 L.Ed. 1042 (1923); Pierce v. Society

of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69

L.Ed. 1070 (1925): to marital privacy,

Griswold v. Connecticut, 381 U.S. 479, 85

S.Ct. 1678, 14 L.Ed.2d 510 (1965): to use

contraception, ibid; Eisenstadt v. Baird, 405

U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349

(1972); to bodily integrity, Rochin v.

California, 342 U.S. 165, 72 S.Ct. 205, 96

L.Ed. 183 (1952), and to abortion, [Planned

Parenthood v. Casey, 505 U.S. 833, 112 S.Ct.

2791, 120 L.Ed.2d 674 (1992)]. We have

also assumed, and strongly suggested, that the

Due Process Clause protects the traditional

right to_refuse unwanted lifesaving medical

treatment. Cruzan [v. Director, Missouri

Dept. of Health, 497 U.S. 261, 278- 279, 110

4la

S.Ct. 2841, 2851-2852, 111 L.Ed.2d 224

(1990)].

(Emphasis supplied.) This exhaustive list comprises only

: sate ‘ . . : 1S

eight, specific liberty interests or fundamental rights.

2. Plaintiffs’ assertion of a fundamental right

As previously noted, plaintiffs seek extension of the

recognized right to privacy, so that it covers individuals who

desire to engage in lawful, private, sexual conduct. that

section 13A-12-200.2(a)(1) unduly burdens. Plaintiffs seck

protection behind that line of cases guarding “the personal

intimacies of the home, the family, marriage, motherhood,

procreation, child rearing.” Paris Adult Theatre I v. Slaton.

431 U.S. 49, 65-66, 93 S.Ct. 2628, 2639-40, 37 L.Ed.2d 446

(1973) (citing Eisenstadt v. Baird, 405 U.S. 438, 453-54. 92

S.Ct. 1029, 1038-1039, 31 L.Ed.2d 349 (1972): id. at 460.

463-65, 92 S.Ct. at 1042, 1043-044 (White. J. concurring):

Stanley v. Georgia, 394 U.S. 557, 568, 89 S.Ct. 1243. 1249,

22 L.Ed.2d 542 (1969): Loving v. Virginia, 388 U.S. 1, 12.

87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010 (1967): Griswold v.

Connecticut, 381 U.S. 479, 486, 85 S.Ct. 1678, 1682. 14

L.Ed.2d 510 (1965); Prince v. Massachusetts. 321 US. 158,

166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944): Skinner v

Oklahoma ex rel. Williamson, 316 U.S. 535, 541. 62 S.Ct.

(1925); Mever v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625.

626, 67 L.Ed. 1042 (1923).)

Initially, plaintiffs divide the fundamental right

jurisprudence into cases providing protection for “spatial”

' The Court did not add to this total in Glucksherg, see 117

S.Ct. at 2271, nor has it done so since.

42a

interests,'° as distinguished from those according protection

to “decisional” interests.'’- (Plaintiffs’ corrected

memorandum, at 15.) Plaintiffs then steer their argument

onto the side of the dichotomy protecting “decisional”

interests: “[This case] is more appropriately analyzed as

involving encroachment upon the ultimate personal

autonomy of individuals to make independent decisions

about intimate matters for themselves.” (/d.)

Plaintiffs also attempt to define the admittedly

evasive contours of the mght to privacy by dividing the

relevant case law into three classes:

(1) the right of marital privacy which extends

to the physical and emotional intimacies

between husbands and wives, see, e.g., Loving

v. Virginia, supra; Griswold v. Connecticut,

supra; (2) the right of family/ home privacy

which encompasses not only decisions

concerning raising children but also choices

concerning family living arrangements, see,

e.g., Moore v. City of East Cleveland, 431

U.S. 494 (1977); Wisconsin v. Yoder, 406

U.S. 205 (1972); Pierce v. Society of Sisters,

supra; cf. Stanley v. Georgia, supra ...; and

(3) the right of individual privacy which

encompasses decisions concerning _ the

integrity and autonomy of one’s body, see,

e.g., Carey v. Population Services

International, supra; Planned Parenthood of

557, 559, 89 S.Ct. 1243, 1245, 22 L.Ed.2d, 542 (1969), in which the

Supreme Court held that a person’s “mere private possession of obscene

matter [in the confines of his or her home] cannot constitutionally be

made a crime.” For a discussion of Stanley, see note 30 infra.

” Plaintiffs cite Roe v. Wade, 410 U.S. 113, 152-53, 93 S.Ct.

705, 726, 35 L.Ed.2d 147 (1973).

43a

Central Missouri v. Danforth, 428 U.S. 52

(1976); Roe v.- Wade, supra; Skinner v.

; Oklahoma, supra.

(Plaintiffs’ correctec memorandum, at 15-16.) Plaintiffs

claim the “central teaching” of the cases cited for the

respective classifications is that “the right of privacy is broad

enough to encompass matters of sexual intimacy.” (J/d. at

16.) Plaintiffs then conclude, by also invoking the holdings

of those cases addressing abortion and contraception,'* that

the decision whether to engage in lawful, private, sexual

activity garners the utmost constitutional protection.

The basic premise undergirding this argument is that

protection for decisions concerning abortion and the use of

contraceptives presupposes protection for the decision to

engage in sexual activity in the first instance. Or, as

plaintiffs phrase it: “That the Constitution provides the

freedom to make the second decision necessarily means that

the right to make the first one is protected.” (/d.) Indeed,

one could factually assert that the “decision whether to bear

or beget a child,” Eisenstadt, 405 U.S. at 453, 92 S.Ct. at

1038 (emphasis supplied), necessarily presupposes the right

of two consenting, heterosexual partners to engage in the act

of sexual intercourse.

3. The Attorney General’s response

The Attorney General answers plaintiffs primarily by

attempting to distinguish this controversy from those cases in

which the Supreme Court has recognized a protected liberty

interest under substantive due process analysis. For example,

he first directs this court’s attention to what the challenged

Alabama statute actually prohibits and, more importantly,

what it does not prohibit. In essence, section 13A-12-

'* See, e.g., Carey, 431 U.S. 678, 97 S.Ct. 2010.

44a

200.2(a)(1) bans the sale of sexual devices; it does not ban

the possession or use of them. This is a significant

distinction from Griswold, where the Court declared that,

even though the Connecticut statute at issue there'” sought to

regulate conduct within the State’s domain, it did so “by

means which sweep unnecessarily broadly and thereby

invade the area of protected freedoms.” 381 U.S. at 485, 85

S.Ct. at 1682 (emphasis supplied). The Court recognized the

right to marital privacy, and then identified the

impermissibly “broad sweep” of the law at issue: “[I]n

forbidding the use of contraceptives rather than regulating

their manufacture or sale, [the law] seeks to achieve its goals

by means having the maximum destructive impact upon [the

marital] relationship.””' /d., 85 S.Ct. at 1682 (emphasis

'’ In Griswold, the Court considered the constitutionality of a

Connecticut statute that barred the use or sale of “amy drug, medicinal

article or instrument for the purpose of preventing conception.” 381 U.S.

at 482, 85 S.Ct. at 1680.

°° The Griswold Court held that:

[T]he right of privacy which presses for recognition

here is a legitimate one.

The present case ... concerns a relationship

lying within the zone of privacy created by several

fundamental constitutional guarantees. And it concerns

a law which, in forbidding the use of contraceptives

rather than regulating their manufacture or sale, seeks

to achieve its goals by means having a maximum

destructive impact upon that relationship. Such a law

cannot stand in light of the familiar principle, so often

applied by this Court, that a “governmental purpose to

control or prevent activities constitutionally subject to

state regulation may not be achieved by means which

sweep unnecessarily broadly and thereby invade the

area of protected freedoms.” ...

381 U.S. at 485, 85 S.Ct. at 1682.

In a subsequent decision, Carev v. Population Services

International, 431 U.S. 678, 687, 97 S.Ct. 2010, 2017, 52 L.Ed.2d 675

45a

supplied). The Attorney General carries this distinction to

the next level,” thereby rendering moot this stated concern

of the Griswold Court: “Would we allow the police to

search the sacred precincts of marital bedrooms ...?” /d., 85

S.Ct. at 1682.

(1977), the Supreme Court placed this focus of the Griswo/d Court in a

different light, one more translucent:

Griswold did state that by “forbidding the use of

contraceptives rather than regulating their manufacture

or sale,” the Connecticut statute there had “a maximum

' destructive impact” on privacy rights. 381 U.S., at 485,

85 S.Ct., at 1682. This intrusion into “the sacred

precincts of marital bedrooms” made that statute

particularly “repulsive.” /d., at 485-486, 85 S.Ct., at

1682. But subsequent decisions have made clear that

the constitutional protection of individual autonomy in

matters of childbearing is not dependent on that

element. Eisenstadt v. Baird, holding that the

protection is not limited to married couples,

characterized the protected right as the “decision

whether to bear or beget a child.” 405 U.S., at 453, 92

S.Ct., at 1038 (emphasis added). Similarly, Roe v.

Wade, held that the Constitution protects “a woman's

decision whether or not to terminate her pregnancy.”

410 U.S., at 153, 93 S.Ct., at 727 (emphasis added).

See also Whalen v. Roe, supra, 429 U.S., at 599-600,

97 S.Ct., at 876-877, and n.26. These decisions put

Griswold in proper perspective. Griswold may no

longer be read as holding only that a State may not

prohibit a married couple's use of contraceptives. Read

in light of its progeny, the teaching of Griswold is that

the Constitution protects individual decisions in

matters of childbearing from unjustified intrusion by

the State.

°° “Prohibiting sales of sexual devices does not require the State

to intrude into the bedrooms of its citizens to investigate suspected

violations as would a prohibition on their use.” (Brief of Alabama

Attorney General, at 7.)

46a

The Attorney General offers a second distinction

from the cases relied upon by plaintiffs. He argues that

application of those cases to the instant controversy requires

an unprecedented and unwarranted leap in logic. He

contends the liberty interests recognized in those cases are

limited to “marriage, procreation, contraception and

abortion.” (Brief of Alabama Attorney General, at 8.) The

Attorney General quotes the discussion of Griswold in

another such case, Carey v. Population Services

International, 431 U.S. 678, 687, 97 S.Ct. 2010, 2017, 52

L.Ed.2d 675 (1977): “Read in light of its progeny, the

teaching of Griswold is that the Constitution protects

individual decisions in matters of childbearing from

unjustified intrusion by the State.” (Brief of Alabama

Attorney General, at 8 (emphasis in original).)

Bolstering his argument that no fundamental right

protection is warranted in this case, the Attorney General

invokes the Glucksberg Court’s description of fundamental

rights: ‘Plaintiffs cannot be possibly suggesting that the use,

let alone the purchase, of sexual devices for the purposes of

achieving + gasms is ‘so deeply rooted in our history and

traditions, or so fundamental to our concept of ordered

liberty,’ ... that it is protected by the Constitution.” (Jd.

(citation omitted).) The Attorney General also exposes any

theory that the decision to use these devices deserves

protection, because the decision implicates an individual’s

personal autonomy, or because the devices are used behind

closed doors, to the light of Glucksberg: “That many of the

rights and liberties protected by the Due Process Clause

sound in personal autonomy does not warrant the sweeping

conclusion that any and all important, intimate, and personal

decisions are so protected.” (/d. at 9) (quoting Glucksberg,

117 S.Ct. at 2271).

The Attorney General offers these distinctions in

support of his effort to narrow the issue before the court:

“[T]his case is not about the nght to control one’s own

reproductive organs and make decisions regarding whether

47a

or not to have children and raise a family. This case is about

the ‘right’ to purchase a product to use in pursuit of having

an orgasm.” (Brief ot Alabama Attorney General, at 7.)

Ultimately, the Attorney General contends “{t]his

case presents the question whether there is a constitutional

right to obtain dildos, vibrators, and other marital aids

‘designed or marketed as useful primarily for the stimulation

of human genital organs.”” (Brief of Alabama Attorney

General, at 4.) He asserts that no fundamental right to

acquire or sell such sexual devices exists. The Attorney

General, therefore, concludes that this case should not be

subjected to “strict scrutiny.”

4. Decisions of other courts faced with this issue

In addition to Alabama, seven states have enacted

laws banning the sale, distribution, or “promotion” of sexual

devices.” The statutes in several of these states have been

challenged on numerous grounds. State courts in Colorado,”

Kansas,” and Texas’? have addressed claims that the

respective statutes violated the fundamental right to privacy.

The Colorado Supreme Court and the Kansas

Supreme Court each sustained the challenge, holding that the

sweep of the respective statute was excessively broad and

unduly burdensome to the fundamental right to privacy.

*’ These seven states are Colorado, see Coio. Rev. Stat. § 18-7-

101, 102, Georgia, see Ga. Code Ann. § 16-12-80, Kansas, see Kan. St.

Ann. § 21-4301, Louisiana, see La. Rev. Stat. Ann. § 14:1206.1,

Mississippi, see Miss. Code Ann. § 97-29-105, Texas, see Tex. Penal

Code Ann. § 43.21, 43.23, and Virginia, see Va. Code Ann. § 18.2-373.

** See Seven Thirty-Five East Colfax, Inc., 697 P.2d 348 (Colo.

1985).

** See State v. Hughes, 792 P.2d 1023 (Kan. 1990).

*° See, e.g., Regaldo v. State of Texas, 872 S.W.2d 7 (Tex.

Crim. App. 1994); Yorko v. State of Texas, 690 S.W.2d 260 (Tex. Crim.

App. 1985).

48a

Each court relied heavily on the fact that the proscribed

devices are used as a means of treatment for certain physical

and psychological disorders: that is, there are “legitimate

medical [and] therapeutic use[s] of such devices.” Seven

Thirty-Five East Colfax, Inc., 697 P.2d 348, 370 (Colo.

1985).

Texas courts, on the other hand, rejected sim?'ar

challenges. In Yorko v. State of Texas, 690 S.W.2d 260

(Tex. Crim. App. 1985), the court drew a distinction between

contraceptives, which are protected, and obscene material,

which is not. Focusing on the uses of sexual devices such as

those at issue here, the Yorko court found the devices were

more like obscene material than condoms and, therefore,

were not protected. The court in Rega/ldo v. State of Texas,

872 S.W.2d 7 (Tex. Crim. App. 1994), flatly rejected the

plaintiff's challenge. The court cited a footnote from Carey,

where the Supreme Court said it had never held that a

fundamental right to sexual privacy exists under the

Constitution.”’ The Regaldo court also cited state court

precedent rejecting this fundamental right argument, and

concluded “[t]here is no fundamental right to use obscene

devices; therefore, restricting the promotion of such devices

does not infringe on any recognized fundamental right.” /d.

at 9.

Aside from the state courts addressing challenges

similar to the assault mounted upon the Alabama Acct in this

case, the former Fifth Circuit and the Supreme Court have

seen challenges to legislation that 1s similar to the Alabama

statute at issue here. The Fifth Circuit upheld the Texas

~’ The cited Carey footnote, number 17, reads in pertinent part

as follows: “We observe that the Court has not definitively answered the

difficult question whether and to what extent the Constitution prohibits

state stalutes regulating such behavior among adults.” 431 U.S. at 695

n.17,97 S.Ct. at 2021 n.17. See Regaldo, 872 S.W.2d at 9.

49a

statute’* in Red Bluff Drive-In, Inc. v. Vance, 648 F.2d 1020

(Sth Cir. June 1981). The court defined plaintiffs’

numerous challenges as follows:

Plaintiffs attack the challenged statutes from

several angles. They maintain that some

provisions are unconstitutionally vague or

overbroad or both. They complain that certain

provisions threaten those charged under the

statute with denials of procedural due process

and that other provisions infringe upon

fundamental rights of expression and personal

autonomy. They assert that the statute, by

outlawing the sale or possession in quantity of

sexually stimulative materials and devices,

denies equal protection of the laws to

handicapped persons dependent on_ these

items for sexual gratification.

648 F.2d at 1025-26. Rejecting these challenges, the court

focused primarily on the First Amendment claim and turned

to the Supreme Court’s obscenity jurisprudence. The court’s

only other mention of the fundamental right issue came in its

brief discussion of the equal protection claim: “With nothing

more than the naked legal conclusions on the record, we

have no evidentiary ‘asis to sustain the plaintiffs’ proposed

extension of the constitutional guarantee of personal

autonomy.” 648 F.2d at 1028 (citing Roe v. Wade, 410 U.S.

113, 152-53, 93 S.Ct. 705, 726, 35 L.Ed.2d 147 (1973)).

The Supreme Court denied plaintiff's petition for writ of

** For the text of the Texas statute, see Red Bluff Drive-In, Inc.

v. Vance, 648 F.2d 1020, 1025 n.1 (Sth Cir. 1981).

** In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.

1981) (en banc), the Eleventh Circuit adopted as binding precedent all

Fifth Circuit decisions handed down prior to the close of business on

September 30, 1981.

50a

certiorari. See Theatres West, Inc. v. Holmes, 455 U.S. 913,

102 S.Ct. 1264, 71 L.Ed.2d 453 (1982).

The Supreme Court also dismissed an appeal from

the Supreme Court of Georgia in Sewe/l/ v. Georgia, 435 U.S.

982, 98 S.Ct. 1635, 56 L.Ed.2d 76 (1978). The appeal

challenged the Georgia Supreme Court’s affirmance of

appellant’s conviction for selling material and devices

prohibited under that State’s obscenity statute. The

constitutional challenges raised by the appellant in Sewell

were summarized by Justice Brennan in his dissent from the

Court’s dismissal of the appeal as follows:

First, he argues that an obscenity statute

which defines scienter in a manner which

authorizes obscenity convictions on mere

“constructive” knowledge impermissibly

chills the dissemination of materials protected

under the First and Fourteenth Amendments.

... Second, he argues that there is no rational

basis for § 26-2101(c) and, in addition, that it

is unconstitutionally vague. ... Third,

appellant contends that “Hot and Sultry” 1s

not obscene as a matter of law. ... And,

finally, appellant challenges the warrantless

mass seizure of the sexual devices on First,

Fourth, and Fourteenth Amendment grounds.

435 U.S. 982, 984, 98 S.Ct. 1635, 1636 (Brennan, J., with

whom Marshall, J. joins, dissenting) (internal citations

omitted). The appeal was dismissed nevertheless, over the

dissents of Justices Brennan, Marshall, and Stewart, “for

want of a substantial federal question.” /d. at 982, 98 S.Ct.

at 1635.

This court finds the decisions discussed above

informative, but neither binding nor particularly persuasive,

because each case can be distinguished by differences in the

Sla

statute at issue, or in the challenges to the statute which the

plaintiffs pursued (or the respective courts chose to address).

5. Breadth of the fundamental right to privacy

As a preliminary matter, this court now will confront

the primary distinction underlying the different manners in

which the parties frame the issue raised by this case.

Each party makes much ado about the distinction

between the sale, distribution, or marketing of sexual

devices, and the use or simple possession of such devices.

The court finds that the arguments to this end are specious, at

least in so far as they are intended to bear upon the

fundamental right determination. In fact, answering whether

such a distinction is meaningful with regard to a particular

prohibition begs the question of what protection the

proscribed material or conduct deserves.*? Nevertheless, to

°° In Stanley v. Georgia, 394 U.S. 557, 559, 89 S.Ct. 1243,

1245, 22 L.Ed.2d 542 (1969), the Supreme Court held that “mere private

possession of obscene matter cannot constitutionally be made a crime.”

The Court distinguished its earlier decision in Roth v. United States, 354

U.S. 476, 485, 77 S.Ct. 1304, 1309, 1 L.Ed.2d 1498 (1957), because

Roth and its progeny did not involve prosecution for private possession

of obscene material. The Stan/ey Cour concluded that the First and

Fourteenth Amendments prohibit maxing mere possession of obscene

material a crime. Stanley, 394 U.S. at 568, 89 S.Ct. at 1249-50.

The Supreme Court soon would limit the holding of Stanley,

however, in United States v. Thirtv-Seven Photographs, 402 U.S. 363, 91

S.Ct. 1400, 28 L.Ed.2d 822 (1971). There, the Court refused to extend

the right to possess obscene material to the right to distribute obscene

material. The Court reiterated this holding in United States v. Reidel,

402 U.S. 351, 91 S.Ct. 1410, 28 L.Ed.2d 813 (1971), a case the Court

decided on the same day it handed down its opinion in Thirty-Seven

Photographs. The Reide/ Court opined that the right to possess obscene

material expressed in Stanley “does not require that we fashion or

recognize a constitutional right ... to distribute or sell obscene material.”

Id. at 356, 91 S.Ct. at 1412. The Supreme Court again determined that

the right to possess obscene material in the privacy of one’s home does

not “give rise to a correlative right to have someone sell or give it to

52a

resolve the issues raised by plaintiffs’ assertion of a

“fundamental right,” this court must focus on the use of the

proscribed devices, rather than their distribution because, if

the use of such devices ts a fundamental liberty interest as

plaintiffs contend, then the legislature’s ban on distribution

compels strict judicial scrutiny.

The Supreme Court has clearly said that it has not yet

decided whether lawful, private, sexual conduct is sheltered

from state interference by the Constitution. For example, in

others” in United States v. 12,200 Ft. Reels of Super 8MM. Film, 413

U.S. 123, 128, 93 S.Ct. 2665, 2669, 37 L.Ed.2d 500 (1973), and United

States v. Orito, 413 U.S. 139, 93 S.Ct. 2674, 37 L.Ed.2d 513 (1973).

The distinction in treatment of the possession versus the sale of

obscene_material (which is unprotected) stands in contrast to the

treatment of such distinction where the statute burdens liberties protected

by the fundamental right to privacy. The opinions in two cases elucidate

the fact that any significance of the distinction between prohibitions of

commercial use versus private use depends on the protection the

Constitution affords the targeted material or conduct. In Paris Adult

Theatre | v. Slaton, 413 U.S. 49, 66, 93 S.Ct. 2628, 2640, 37 L.Ed.2d 446

(1973), the Court alluded to this fact: “If obscene material unprotected

by the First Amendment in itself carried with it a ‘penumbra’ of

constitutionally protected privacy, this Court would not have found it

necessary to decide Stan/ey on the narrow basis of the ‘privacy of the

home,’ which was hardly more than a reaffirmation that ‘a man's home is

his castle.” The Court solidified the validity of this distinction in Carey

v. Population Services International, 431 U.S. 678, 97 S.Ct. 2010, 52

L.Ed.2d 675 (1977), holding:

Restrictions on the distribution of contraceptives

clearly burden the freedom to make [protected

childbearing] decisions. ... The same test must be

applied to state regulations that burden an individual's

right to decide to prevent conception or terminate

pregnancy by substantially limiting access to the means

of effectuating that decision as is applied to state

statutes that prohibit the decision entirely. This is so ...

because such access is essential to exercise of the

constitutionally protected right of decision in matters of

childbearing ....

53a

Carey the Court noted that it “has not definitively answered

the difficult question whether and to what extent the

Constitution prohibits state statutes regulating (private

consensual sexual) behavior among adults, ... and we do not

purport to answer that question now.” 43! U.S. at 689 n.5,

97 S.Ct. at 2018 n.5; see also Postscript Enterprises, Inc. v.

Whaley, 658 F.2d 1249, 1254 n.6 (8th Cir. 1981). But see

Carey, 431 U.S. at 718 n.2, 97 S.Ct. at 2033 n.2 (Rehnquist,

J., dissenting) (“While we have not ruled on every

conceivable regulation affecting such conduct the facial

constitutional validity of criminal statutes prohibiting certain

consensual acts has been ‘definitively’ established.”) (citing

Doe v. Commonwealth's Attorney, 425 U.S. 901, 96 S.Ct.

1489, 47 L.Ed.2d 751 (1976), summarily aff’g 403 F. Supp.

1199 (E.D. Va. 1975)). Consequently, as plaintiffs conceded

at oral argument, they must seek an extension of the line of

cases establishing that fundamental decisions inherent in an

individual’s personal autonomy are protected by the Due

Process Clause of the Fourteenth Amendment, because no

case has recognized that the Due Process Clause protects

their asserted liberty interest. See Vance, 648 F.2d at 1028.

To be sure, several opinions discuss principles which

support plaintiffs’ desired extension of the fundamental right

to privacy. See, e.g., Carey, 431 U.S. at 685, 97 S.Ct. at

2016; Eisenstadt v. Baird, 405 U.S. at 453, 92 S.Ct. at 1038;

Prince v. Massachusetts, 321 U.S. at 166, 64 S.Ct. at 442.

Nevertheless, these opinions generally have been narrowly

construed or discussed by the Court, for example, as

protecting only major life decisions such as decisions related

to childbearing and child rearing. See, e.g., Planned

Parenthood v. Casey, 505 U.S. 833, 834, 112 S.Ct. 2791,

2797, 120 L.Ed.2d 674 (1992). Moreover, the Court’s

narrow characterization of these cases is exemplified in

Casey: “These matters, involving the most intimate and

personal choices a person may make in a lifetime, choices

central to personal dignity and autonomy, are central to the

liberty protected by the Fourteenth Amendment.” /d. at 851,

54a

112 S.Ct. at 2807. More recently in Glucksberg, the Court

cautioned: “That many of the-rghts and liberties protected

by the Due Process Clause sound in personal autonomy does

not warrant the sweeping conclusion that any and all

important, intimate, and personal decisions are so protected.”

117 S.Ct. at 2271.

Perhaps of greater note, the Court has intimated that

such protection is not available under the Due Process

Clause. For example, in Bowers v. Hardwick, 478 U.S. 186,

191, 106 S.Ct. 2841, 2844, 92 L.Ed.2d 140 (1986), the Court

discounted the argument for extending the right of privacy to

““encompass all private sexual conduct”’:

[A]ny claim that these [fundamental right to

privacy] cases ... stand for the proposition that

any_ kind of private sexual conduct between

consenting adults is constitutionally insulated

from state proscription is unsupportable.

Indeed, the Court’s opinion in Carey twice

asserted that the privacy night, which the

Griswold line of cases found to be one of the

protections provided by the Due Process

Clause, did not reach so far. ...

(Citation omitted) (emphasis supplied.) As the Bowers Court

noted, the Court had addressed such a proposed extension in

Carey:

[W]e do not hold that state regulation must

meet this [strict scrutiny] standard “whenever

it implicates sexual freedom,” ... or “affect(s)

adult sexual relations,” ... but only when it

“burden(s) an individual’s right to decide to

*! This court acknowledges that Bowers is distinguishable from

the instant case because the underlying sexual conduct at issue in

Bowers, homosexual sodomy, was illegal, and had been so historically.

55a

prevent conception or terminate pregnancy by

substantially limiting access to the means of

effectuating that decision.”

431 U.S. at 689 n.5, 97 S.Ct. at 2018 n.5. Even more

directly, then Justice (and now Chief Justice) Rehnquist took

issue with the characterization of the majority in Carey that

this issue remained somewhat of an open question:

I] cannot, however, let pass without comment,

the statement that “the Court has not

definitively answered the difficult question

whether and to what extent the Constitution

prohibits state statutes regulating (private

consensual sexual) behavior among adults.” ...

While we have not ruled on every conceivable

regulation affecting such conduct the facial

constitutional validity of criminal statutes

prohibiting certain consensual acts has been

“definitively” established. ... [°7]

431 U.S. at 718 n.2, 97 S.Ct. at 2033 n.2 (Rehnquist, J.,

dissenting) (citations omitted). See also Postscript

Enterprises, Inc., 658 F.2d at 1254 n.6 (“We assume,

without having to decide, that the City of Si. Louis may,

through a properly drawn ordinance, restrict the sale of items

which enable, aid, or encourage private consensual sexual

behavior among adults.’’)

Absent authority directly on point, this court now

turns to those factors the Supreme Court has sketched for

recognition of a liberty interest as fundamental.

The Supreme Court’s most recent foray into the

swampy fields of substantive due process came in

Glucksberg. As discussed above, the Court stressed that it

*° Justice Rehnquist cited to a case summarily affirming the

conviction of an individual for violating a state sodomy law.

re ne ee er

S6a

relies upon the following factors for firm footing in this soft

area of constitutional law: (1) whether the asserted liberty

interest is “objectively, deeply rooted in this Nation’s history

and tradition, ... and [is] implicit in the concept of ordered

liberty, such that neither liberty nor justice would exist if [it

was] sacrificed”; and (2) “a careful description of the

asserted fundamental liberty interest.” 117 S.Ct. at 2267-68

(citations and internal quotation marks omitted).

Considering the second factor first, the asserted

liberty interest that this court must address is dictated by the

facts of the case before it. This court has no authority to

pronounce broad rules of constitutional law when an Article

Ill “case or controversy” does not demand it. See Brockett v.

Spokane Arcades, Inc., 472 U.S. 491, 498, 105 S.Ct. 2794,

2799, 86 L.Ed.2d 394 (1985) (stating that one of the

“cardinal rules governing ... federal courts [is] never to

formulate a rule of constitutional law broader than is

required by the precise facts to which it is to be applied -..””)

(citations and internal quotation marks omitted); see also

Flast v. Cohen, 392 U.S. 83, 96-97, 88 S.Ct. 1942, 1950-51,

20 L.Ed.2d 947 (1968); see generally Ashwander v. TVA,

297 U.S. 288, 56 S.Ct. 466, 80 L.Ed. 688 (1936). As stated

in the introduction to Part C of this opinion, supra, the issue

presented by plaintiffs’ challenge is whether the Due Process

Clause of the Fourteenth Amendment (and the concomitant

fundamental right to privacy) protects an individual’s liberty

interest in using devices “designed or marketed as useful

primarily for the stimulation of human genital organs” when

engaging 1n lawful, private, sexual activity.

Is this liberty interest “deeply rooted” in the history

and traditions of the Nation? Is this liberty interest “implicit

in the concept of ordered liberty, such that neither liberty nor

justice would exist if [it was} sacrificed?” Glucksberg, 117

S.Ct. at 2267-68. This court holds it is not.

Although the actual proscription of this liberty

interest does not have historical roots as deeply embedded in

the value-laden soil of English speaking peoples as, say, the

57a

proscription of sodomy, nothing presented to this court in

brief or during oral argument suggests that use of sexual

devices has monumental or abiding approval.** The

Supreme Court simply has placed the bar too high to allow

recognition of an individual’s use of devices “designed or

marketed as useful primarily for the stimulation of human

genital organs” as a fundamental liberty interest.

Plaintiffs’ most persuasive argument stems from the

therapeutic and medical use these devices have for

individuals afflicted with some form of sexual dysfunction.

The argument presupposes the existence of a fundamental

right to engage in lawful, private, sexual activity. This

premise inheres in the fact that secondary decisions, which

flow from the orginal decision to engage in sexual

intercourse, are protected as fundamental liberty interests:

for example, the right to procreate, see Skinner v. Oklahoma,

316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942); the nght

*’ Certain submissions to the court, and certain facts that were

_ stipulated, establish that some level of popularity in the use of sexual

devices has evolved over the past twenty years. For example, several

publications and websites discuss or suggest the use of these devices in

aid of achieving orgasm. The parties also have stipulated that these

devices possess some therapeutic value (or at least that plaintiffs and

certain experts in human sexuality believe they do).

Evidence of recent popularity notwithstanding, the most

persuasive evidence supporting an argument that use of these devices can

satisfy the G/ucksberg standards is the fact that the federal Food and

Drug Administration promulgated regulations concerning some of the

more common sexual devices, establishing standards for their therapeutic

use.

The FDA first established such regulations in 1980. See 45 Fed.

Reg. 12684-12720 (1980); see also Postscript Enterprises, Inc. v.

Whaley, 658 F.2d 1249, 1254 n.6 (8th Cir. 1981).

The twenty years of regulation proves to be the most persuasive

evidence before the court, largely because it is the most longstanding. In

fact, aside from references to two publications, it is the only stipulation

or evidentiary submission dating from an earlier decade. The court also

notes that neither of the vendor plaintiffs has operated her relevant

business (at least in Alabama) for more than six years.

58a

to use contraceptives, see, e.g., Eisensiadt v. Baird, 405 U.S.

438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); and the right to

choose to have an abortion, see Planned Parenthood v.

Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674

(1992). Thus, plaintiffs draw the conclusion that people who

have a physiological or rsychological need to use sexual

devices in order to perform sexually should be accorded

similar protection for this liberty interest as they and others

are accorded for the liberty interest in lawful, sexua!

intercourse.

The appeal of this argument notwithstanding, basec.

on the Supreme Court’s focus on history and tradition, the

Supreme Court’s express reluctance to extend the protection

of the Due Process Clause, its narrow readings of cases

recognizing liberty interests as fundamental, and _ its

statements that it has not yet decided a case squarely on

point, this court refuses to extend the fundamental night of

privacy to protect plaintiffs’ interest in using devices

“designed or marketed as useful primarily for the stimulation

_ of human genital organs” when engaging in lawful, private,

sexual activity. and thereby impose a strict scrutiny frame of

analysis when reviewing the Alabama statute at issue.

D. Rational Basis Review

Although Alabama Code § 13A-12-200.2(a)(1) has

escaped strict scrutiny, it still must survive review under the

rational basis test. See, e.g., Glucksberg, 117 S.Ct. at 2271.

The Supreme Court sketched the contours of analysis for

claims alleging state violation of the Due Process Clause of

the Fourteenth Amendment in Nebbia v. People of State of

New York, 291 U.S. 502, 525, 54 S.Ct. 505, 510-11, 78 L.Ed.

940 (1934):

[T]he~ Fourteenth [Amendment does] not

prohibit governmental regulation for the

public welfare. [It] merely condition[s] the

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exertion of the admitted power, by securing

that the end shall be accomplished by

methods consistent with due process. And the

guaranty of due process, as has often been

held, demands only that the law shail not be

unreasonable, arbitrary, or capricious, and

that the means selected shall have a real and

substantial relation to the object sought to be

attained.

The derivative inquiry for rational basis review asks whether

a legitimate governmental interest supports the state’s

legislation, and, whether the resulting law bears a rational

relation to that interest. See Glucksberg, 117 S.Ct. at 2271;

Reno v. Flores, 507 U.S. 292, 302-05, 113 S.Ct. 1439, 1447-

49, 123 L.Ed.2d 1 (1993). For such a relationship to exist,

the nexus between the state interest and the law at issue must

be reasonable, and thus not arbitrary, capricious, or

irrational. See Village of Euclid v. Ambler Realty Co., 272

U.S. 365, 395, 47 S.Ct. 114, 121, 71 L.Ed. 303 (1926); see

also City of Cleburne v. Cleburne Living Center, 473 U.S.

432, 446, 105 S.Ct. 3249, 3258, 87 L.Ed.2d 313 (1985)

(stating, in Equal Protection analysis, that a law must not be

“arbitrary or irrational’); Western and Southern Life

Insurance Company v. State Board of Equalization, 451 U.S.

648, 668, 101 S.Ct. 2070, 2083, 68 L.Ed.2d 514 (1981)

(analyzing two questions in the rational basis review under

the Equal Protection Clause: “(1) Does the challenged

legislation have a legitimate purpose? and (2) Was it

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