# Petition for Writ of Certiorari — Williams v. King

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2005
- **Citation:** 543 U.S. 1152

## Text

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

i
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)?

il

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

vi

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

8 fe FD a 2
FEDERAL REGULATIONS

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l
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.

2

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

3

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.

|
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4

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

5

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

6

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.

7

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.

8

(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.

9

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.

10

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

il

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.”).

13

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

14

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

15

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.

16

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

Ne

17

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

18

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

19

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.

20

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.

21

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

22

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

23

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.

24

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

12

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.

25

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.

26

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

27

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.’’).

28

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.

29

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

la

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,
v.

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: "

2a

—~ &

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

3a

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.

da

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

Sa

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).

6a

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.

7a

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

wr

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”

Sa

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

9a

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).

i

)

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)[.]

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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

é

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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

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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

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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): t

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_1225%3A1. Public record. Not legal advice.