Appendix — Williams v. King (No. 06-1501)

App. 1

TABLE OF CONTENTS

Judgment of

The United States Court of Appeals

For the Eleventh Circuit

filed February 14, 2007 ...........:.cscccscccscsssessse

Opinion of the

The United States Court of Appeals

For the Eleventh Circuit

IOS PORTURET 14, BOOT occ cisssvccscescscconenevcsees

Williams, et al. v. Attorney General of Alabama,

378 F.3d 1232 (11th Cir. 2004)...

Williams, et al. v. King,

543 U.S. 1152, 125 S. Ct. 1335 (20085).........

Williams, et al. v. King,

420 F. Supp. 2d (N.D. Ala. 2006).........:..0:+.

Williams, et al. v. Pryor,

41 F. Supp. 2d 1257 (N.D. Ala. 1999)..........

Williams, et al. v. Pryor,

240 F.3d 944 (11th Cir. 2001)...

Williams, et al. v. Pryor,

220 F. Supp. 2d 1257 (N.D. Ala. 2002)........

Williams, et al. v. Pryor,

122 Fed. App. 988 (2004)............::cccscssrreeeees

Page

App. 1

United States Court of Appeals

For the Eleventh Circuit

[FILED February 14, 2007]

No. 06-11892

District Court Docket No. 98-01938-CV-5

SHERRI WILLIAMS, BJ. BAILEY, ALICE JEAN COPE,

JANE DOE, DEBORAH L. COOPER, BENNY COOPER,

DAN BAILEY, JANE POE, JANE ROE,

Plaintiffs-Appellants,

BETTY FA YE HAGGERMAKER, et al.,

Plaintiffs,

versus

TIM MORGAN, in his official capacity as the District

Attorney of the County of Madison Alabama,

Defendant,

TROY KING,

in his official capacity as the

Attorney General of Alabama,

Defendant-Appellee.

Appeal from the United States District Court for the

Northern District of Alabama

App. 2

JUDGMENT

It is hereby ordered, adjudged, and decreed that

the attached opinion included herein by reference, is

entered as the judgment of this Court.

Entered: February 14, 2007

For the Court: Thomas K. Kahn, Clerk

By. Hamper, Toni

way A

App. 3

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR

THE ELEVENTH CIRCUIT

No. 06-11892

[FILED February 14, 2007]

D. C. Docket No. 98-01938-CV-5

SHERRI WILLIAMS, B.J. BAILEY, ALICE JEAN COPE,

JANE DOE, DEBORAH L. COOPER, BENNY COOPER,

DAN BAILEY, JANE POE, JANE ROE,

Plaintiffs-Appellants,

BETTY FAYE HAGGERMAKER, et al.,

Plaintiffs

versus

TIM MORGAN, in his official capacity as the District

Attorney of the County of Madison Alabama,

| Defendant,

TROY KING, in his official capacity as the Attorney

General of Alabama,

Defendant-Appellee.

Appeal from the United States District Court for the

Northern District of Alabama

App. 4

(February 14, 2007)

Before DUBINA and WILSON , Circuit Judges, and

HODGES,’ District Judge. WILSON, Circuit Judge:

This case comes to us for the third time, arising

from a. constitutional challenge to a provision of the

Alabama Code prohibiting the commercial distribution of

devices “primarily for the stimulation of human genital

organs.” Ala. Code § 13A-12-200.2(a)(1). The only

question remaining before us is whether public morality

remains a sufficient rational basis for the challenged

statute after the Supreme Court's decision in Lawrence v.

Texas, 539 U.S. 558, 123 S. Ct. 2472, 156 L. Ed. 2d 508

(2003). The district court distinguished Lawrence and

held, following our prior precedent in this case, Williams

v. Pryor, 240 F.3d 944 (11th-Cir. 2001) (Williams ID, that

the statute survives rational basis scrutiny. Because we

find that public morality remains a legitimate rational

basis for the challenged legislation even after Lawrence,

we affirm.

BACKGROUND

The American Civil Liberties Union (“ACLU”)!

filed suit on behalf of individual users and vendors of

sexual devices’ to enjoin enforcement of Ala. Code § 13A-

12-200.2(a)(1), which prohibits the distribution of “any

« Honorable Wm. Terrell Hodges, United States District Judge for the

Middle District of Florida, sitting by designation.

1 “The ACLU” will be used to refer collectively to appellants, as that

organization was “the driving force” behind this litigation. Williams v.

Att'y Gen. of Ala., 378 F.3d 1232, 1233 n.1 (11th Cir. 2004) (Williams

IV)

2 We will use the shorthand term “sexual device” in place of the

phrase “any device designed or marketed as useful primarily for the

stimulation of the human genital organs.”

App. 5

device designed or marketed as useful primarily for the

stimulation of human genital organs.”* Plaintiffs in this

case include both married and unmarried users of

prohibited sexual devices, as well as vendors of sexual

devices operating both in typical retail storefronts and in

“Tupperware”-style parties where sexual aids and

novelties are displayed and sold in homes. The stipulated

facts establish that sexual devices have many medically

and psychologically therapeutic uses, recognized by

healthcare professionals and by the FDA. The statute

exempts sales of sexual devices “for a bona fide medical,

scientific, educational, legislative, judicial, or law

enforcement purpose.” § 13A-12-200.4. Also, there are a

number of other sexual products, such as ribbed condoms

and virility drugs, that are not prohibited by the statute.

The statute does not prohibit the use, possession, or

gratuitous distribution of sexual devices. See § 13 A-12-

200.2 (“for anything of pecuniary value”).

The ACLU has argued throughout this litigation

that the statute burdens and violates sexual-device users’

right to privacy and personal autonomy under the

Fourteenth Amendment. Alternatively, it has argued that

there is no rational relationship between a complete ban

on the sale of sexual devices and a proper legislative

purpose.

Our second opinion in this case (Williams IV)

provides a thorough summary of the procedural history of

the case:

3 The statute reads in pertinent part: “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 anything of pecuniary value.” Ala. Code § 13A-12-

200.2(a)(1).

App. 6

Following a bench trial, the district court

concluded that there was no currently recognized

fundamental right to use sexual devices and declined the

ACLU’s invitation to create such a right. Williams v.

Pryor, 41 F. Supp. 2d. 1257, 1282-84 (N.D. Ala. 1999)

(Williams I). The district court then proceeded to

scrutinize the statute under rational basis review. Id. at

1284. Concluding that the statute lacked any rational

basis, the district court permanently enjoined its

enforcement. Id. at 1293.

On appeal, we reversed in part and affirmed in

part. [Williams II, 240 F.3d 944.] We reversed the district

court’s conclusion that the statute lacked a rational basis

and held that the promotion and preservation of public

morality provided a rational basis. Id. at 952. However,

we affirmed the district court's rejection of the ACLU's

facial fundamental-rights challenge to the statute. Jd. at

955. We then remanded the action to the district court for

further consideration of the as- “epphed fundamental-

rights challenge. Jd. at 955.

On remand, the district court again struck down

the statute. Williams v. Pryor, 220.F. Supp. 2d 1257 (N.D.

Ala. 2002) (Williams IIT). On cross motions for summary

judgment, the district court held that the statute

unconstitutionally burdened the right to use sexual

devices within private adult, consensual sexual

relationships. Jd. After a lengthy discussion of the history

of sex in America, the district court announced a

fundamental right to “sexual privacy,” which, although

unrecognized under any existing Supreme Court

precedent, the district court found to be deeply rooted in

the history and traditions of our nation. Jd. at 1296. The

district court further found that this right “encompass[es]

the right to use sexual devices like the vibrators, dildos,

anal beads, and artificial vaginas” marketed by the

vendors involved in this case. Jd. The district court

App. 7

accordingly applied strict scrutiny to the statute. Id.

Finding that the statute failed strict scrutiny, the district

court granted summary judgment to the ACLU and once

again enjoined the statute's enforcement. Jd. at 1307.

Williams v. Att'y Gen. of Ala. 378 F.3d 1232, 1234 (1 1th

Cir. 2004) (Williams IV).

In Williams IV, we again reversed the judgment of

the district court, holding that there was no pre-existing,

fundamental, substantive-due-process right to sexual

privacy triggering strict scrutiny. Jd. at 1238. In so

holding, we determined that Lawrence, which had been

decided after the district court’s decision in Williams III,

did not recognize a fundamental right to sexual privacy.

Id. Furthermore, we declined to recognize a new

fundamental right to use sexual devices. Jd. at 1250.

With strict scrutiny off the table, we remanded the case

for further proceedings consistent with the opinion. Jd.

We advised that on remand, the district court should

“examine whether our holding in Williams IIthat

Alabama’s law has a rational basis (e.g., public morality)

remains good law” after Lawrence overruled Bowers uv.

Hardwick, 478 U.S. 186, 106 S. Ct. 2841, 92 L. Ed. 2d 140

(1986). Jd. at 1238 n.9 (internal quotations omitted); see

also id. at 1259 n.25 (Barkett, J., dissenting) (“On

remand, the district court must consider whether our

holding in Williams II. . . remains good law now that

Bowers has been overruled.”). We thus “save[d] for a later

day” the question of whether public morality still serves

as a rational basis for legislation after Lawrence. Id. at

1238 n.9.

On remand, the district court decided “not to

invalidate the Alabama law in question here simply

because it is founded on concerns over public morality.”

Williams v. King, 420 F. Supp. 2d 1224, 1250 (N.D. Ala.

2006) (Williams V). In so concluding, the district court

opined: “To hold that public morality can never serve as a

App. 8

rational basis for legislation after Lawrence would cause

a ‘massive disruption of the social order,’ one this court is

not willing to set into motion.” Jd. at 1249-50 (quoting

Lawrence, 539 U.S. at 590, 123 S. Ct. 2491 (Scalia, J.,

dissenting)). The district court also addressed “whether

this case fits squarely within the mold of Lawrence, such

that Lawrence's holding—that public morality was not a

sufficiently rational basis to support the Texas [sodomy

statute]—applies to strike down the Alabama law here.”

Id. at 1250. The. district court concluded that the cases

are distinguishable, and Lawrence does not compel

striking down the Alabama law in this case.* Id. at 1253-

54 |

The ACLU now appeals the district court's

decision in Williams Vgranting the State’s summary

judgment motion and denying the ACLU’s summary

judgment motion.

STANDARD OF REVIEW

We review a summary judgment decision de novo

and apply the same legal standard that bound the district

court. Cruz v. Publix Super Markets, Inc., 428 F.3d 1379,

1382 (11th Cir. 2005).

DISCUSSION

In Williams IV we held that the Supreme Court in

Lawrence “declined the invitation” to recognize a

fundamental right to sexual privacy, which would have

compelled us to employ strict scrutiny in assessing the

4 The district court distinguished this case from Lawrence in part on

the basis that Lawrence implicates equal protection concerns—the

Texas statute targeted a “discrete and insular minority,” while this

statute does not. Williams V, 420 F. Supp. at 1250-53. We need not

address whether the district court is correct that Lawrence employs an

equal protection analysis. Here, we apply a substantive due process

analysis and distinguish Lawrence on other grounds.

App. 9

constitutionality of the challenged statute. Williams IV,

378 F.3d at 1236. Thus, because there is no fundamental

right at issue, we apply rational basis scrutiny to the

challenged statute. SeeRomerv. Evans, 517 U.S. 620, 631,

116 S. Ct. 1620, 1627, 134 L. Ed. 2d 855 (1996) (“[Tif a law

neither burdens a fundamental mght nor targets a

suspect class, we will uphold the [law] so long as it bears

a rational relation to some legitimate end.”). For the

reasons stated below, we.find that the State's interest in

preserving and promoting public morality provides a

rational basis for the challenged statute.

Rational basis review is “a highly deferential

standard that proscribes only the very outer limits of a

legislature's power.” Williams II, 240 F.3d at 948. A

statute is constitutional under rational basis scrutiny so

long as “there is any reasonably conceivable state of facts

that could provide a rational basis for the [statute].”

FCCv. Beach Commc'ns, Inc., 508 U.S. 307, 313, 113 S.

Ct. 2096, 2101, 124 L. Ed. 2d 211 (1993) (emphasis

added). Furthermore, the Supreme Court has held:

On rational-basis review, ... a statute . . . comes to

us bearing a strong presumption of validity, and

those attacking the rationality of the legislative

classification have the burden to negative every

conceivable basis which might support it.

‘Moreover, because we never require a legislature

to articulate its reasons for enacting a statute, it is

entirely irrelevant for constitutional purposes

whether the conceived reason for the challenged

distinction actually motivated the legislature.

Id. at 314-315, 113 S. Ct. at 2101-02 (internal quotation

marks and citations omitted). In addition, state

legislatures are “allowed leeway to approach a perceived

problem incrementally, even if its incremental approach

is significantly. over-inclusive or under-inclusive.”

App. 10

Williams II, 240 F.3d at 948 (internal quotation marks

omitted).

We previously addressed the constitutionality of

the challenged Alabama law under rational basis scrutiny

and held that “[t]he State’s interest in public morality is a

legitimate interest rationally served by the statute.” Jd.

at 949. We noted that “[t]he crafting and safeguarding of

public morality has long been an established part of the

States’ plenary police power to legislate and indisputably

is a legitimate government interest under rational basis

scrutiny.” Id. at 949; see also Barnes v. Glen Theatre, Inc.,

501 U.S. 560, 569, 111 S. Ct. 2456, 2462, 115 L. Ed. 2d

504 (1991) (citing Bowers, 478 U.S. at 196, 106 S. Ct. at

2846; Paris Adult Theatre I v. Slaton, 413 U.S. 49, 61, 93

S. Ct. 2628, 2637, 37 L. Ed. 2d 446 (1973); Roth v. United

States, 354 U.S. 476, 485, 77 S. Ct. 1304, 1309, 1 L. Ed.

2d 1498 (1957)). Further, we held that “a statute banning

the commercial distribution of sexual devices is rationally

related to this interest.” Williams II, 240 F.3d at 949.

Ordinarily, we would be bound by our holding in

Williams II according to the law-of-the-case doctrine.

Under the law-of-the-case doctrine, “the findings of fact

and conclusions of law by an appellate court are generally

binding in all subsequent proceedings in the same case in

the trial court or on a later appeal.” This That & The

Other Gift And Tobacco, Inc. v. Cobb County, Ga., 439

F.3d 1275, 1283 (1 1th Cir. 2006) (per curiam) (internal

quotation marks omitted). When deciding an issue of law,

the only means by which the law-of-the-case doctrine may

be overcome is if “(1) our prior decision resulted from a

trial where the parties presented substantially different

evidence from the case at bar; (2) subsequently released

controlling authority dictates a contrary result; or (3) the

prior decision was clearly erroneous and would work

manifest injustice.” Alphamed, Inc. v.'B. Braun Med.,

Inc., 367 F.3d 1280, 1286 (1 1th Cir. 2004); see also This

App. 11

That & The Other, 439 F.3d at 1283. The ACLU impliedly

argues that Lawrence is controlling authority that

compels a contrary result, because it dictates that public

morality no longer constitutes a rational basis for

government intrusion on private decisions about sexual

intimacy—which is precisely what it argues the Alabama

statute does.> —

In Lawrence the Supreme Court held that the

Texas sodomy statute challenged in that case "further[ed]

no legitimate state interest which can justify its intrusion

into the personal and private life of the individual." 539

U.S. at 578, 123 S. Ct. at 2484. In so holding, the

Lawrence majority relied on Justice Stevens's analysis in

his Bowers dissent: "[T]he fact that the governing

majority in a State has traditionally viewed a particular

practice as immoral is not a sufficient reason for

upholding a law prohibiting the practice ... ." Id. at 577,

123 S. Ct. at 2483 (quoting Bowers, 478 U.S. at 216, 106

S. Ct. at 2857 (Stevens, J. dissenting)). The Court applied

Justice Stevens's analysis in overruling Bowers and in

holding that the Texas sodomy statute was

unconstitutional.

The ACLU argues that the Alabama statute at

issue in this case, like the Texas sodomy statute at issue

in Lawrence, intrudes into personal and private decisions

about sexual intimacy. It argues that "this law intrudes

just as deeply into the sphere of individual decision-

making about sexuality as the law struck down in

5 Judge Barkett expressly makes the argument that the law-of-the-

case doctrine does not apply to Williams II because Lawrence is

subsequently released controlling authority dictating a contrary

result. See Williams IV, 378 F.3d at 1259 n.25 (Barkett, J.,

dissenting); see also id. at 1259 (Barkett, J., dissenting) (“Williams II. .

. relfied) on the now defunct Bowers to conclude that public morality

provides a legitimate state interest. .. . Obviously now that Bowers

has been overruled, this proposition is no longer good law and we

must, accordingly, revisit our holding in Williams II.”).

App. 12

Lawrence." Appellant's Br. 29. Thus, the ACLU argues,

this case is indistinguishable from Lawrence—just as in

that case, in this case there is no legitimate state

interest, including public morality, that supports the

challenged Alabama statute. Therefore, it argues that the

statute cannot survive constitutional scrutiny under

Lawrence.

However, while the statute at issue in Lawrence

criminalized private sexual conduct, the statute at issue

in this case forbids public, commercial activity. To the

extent Lawrence rejects public morality as a legitimate

government interest, it invalidates only those laws that

target conduct that is both private and noncommercial.

Lawrence, 439 U.S. at 578, 123 S. Ct. at 2484 (“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 easily

be refused. Jt does not involve public conduct or

prostitution.”) (emphasis added). Unlike Lawrence, the

activity regulated here is neither private nor non-

commercial.®

This statute targets commerce in sexual devices,

an inherently public activity, whether it occurs on a

street corner, in a shopping mall, or in a living room. As

the majority in Williams IV so colorfully put it: “There is

nothing ‘private’ or ‘consensual’ about the advertising and

sale of a dildo.” 378 F.3d at 1237 n.8; see also id. at 1241.

6 The ACLU emphasizes language in Williams IV where we stated

that “for purposes of constitutional analysis, restrictions on the ability

to purchase an item are tantamount to restrictions on the use of that

item.” 378 F.3d at 1242. However, the Williams IVcourt connected the

sale of sexual devices with their use only in the limited context of

framing the scope of the liberty interest at stake under the

fundamental rights analysis of Washington v. Glucksberg, 521 U.S.

702, 117 S. Ct. 2258, 138 L. Ed. 2d 772 (1997). Williams IV, 378 F.3d

at 1242. We were clear in Williams IV, that the challenged statute did

not implicate private or consensual activity. Id. at 1237 n.8, 1241.

App. 13

The challenged statute does not target possession, use, or

even the gratuitous distribution of sexual devices. In fact,

plaintiffs here continue to possess and use such devices.

States have traditionally had the authority to regulate

commercial activity they deem harmful to the public. See,

e.g., Ohraliku. Ohio State Bar Ass'n, 436 U.S. 447, 456, 98

S. Ct. 1912, 1919, 56 L. Ed. 2d 444 (1978) (“[T]he State

‘does not lose its power to regulate commercial activity

deemed harmful to the public whenever speech is a

component of that activity.”). Thus, while public morality

was an insufficient government interest to sustain the

Texas sodomy statute, because the challenged statute in

this case does not target private activity, but public,

commercial activity, the state's interest in promoting and

preserving public morality remains a sufficient rational

basis.

Furthermore, we do not read Lawrence, the

overruling of Bowers, or the Lawrence court’s reliance on

Justice Stevens’s dissent, to have rendered public

morality altogether illegitimate as a rational basis. The

principle that “[t]he law .. . is constantly based on

notions of morality,” Bowers, 478 U.S. at 196, 106 S. Ct.

at 2846, was not announced for the first time in Bowers

and remains in force today. As we noted in Williams IV,

the Supreme Court has affirmed on repeated occasions

that laws can be based on moral judgments. Williams IV,

378 F.3d at 1238 n.8; see Barnes, 501 U.S. at 569, 111 S.

Ct. at 2462 (upholding a public indecency statute, stating,

“[t]his and other public indecency statutes were designed

to protect morals and public order. The traditional police

power of the States is defined as the authority to provide

for the public health, safety, and morals, and we have

upheld such a basis for legislation.”); id. (noting that “a

legislature could legitimately act. . . to protect ‘the social

interest in order and morality”); Gregg v. Georgia, 428

U.S. 153, 183, 96 S. Ct. 2909, 2930, 49 L. Ed. 2d 859

(1976) (upholding the death penalty, noting that “capital

App. 14

punishment is an expression of society's moral outrage at

particularly offensive conduct”); Paris Adult Theatre I,

413 U.S. at 61, 93 S. Ct. at 2637 (holding that Georgia

had a legitimate interest in regulating obscene material

because the legislature “could legitimately act... to protect

‘the social interest in order and morality”) (quoting Roth,

354 U.S. at 485, 77 S. Ct. at 1309); United States v. Bass,

404 U.S. 336, 348, 92 S. Ct. 515, 522, 30 L. Ed. 2d 488

(1971) (noting that “criminal punishment usually

represents the moral condemnation of the community”).

. Also, we have discussed the post-Lawrence

viability of public morality as a rational basis for

legislation with approval. See Lofton v. Sec ‘y of the Dept.

of Children and Family Servs., 358 F.3d 804, 819 n.17

(2004). In Lofton, upholding a law _ prohibiting

homosexual couples from adopting, we indicated that

public morality likely remains a constitutionally rational

basis for legislation:

Florida also asserts that the statute is

rationally related to its interest in promoting

public morality both in the context of child rearing

and in the context of determining which types of

households should be accorded legal recognition as

families. Appellants respond that public morality

cannot serve as a legitimate state interest... . [I]t

is unnecessary for us to resolve the question. We

do note, however, the Supreme Court's conclusion

that there is not only a legitimate interest, but a

substantial government interest in protecting

order and morality, and its observation that [iJn a

democratic society legislatures, not courts, are

constituted to respond to the will and

consequently the moral values of the people.

Id., 358 F.3d at 819 n.17 (internal quotations and

citations omitted). We have also noted: “One would expect

App. 15

the Supreme Court to be manifestly more specific and

articulate than it was in Lawrence if now such a

traditional and significant jurisprudential principal has

been jettisoned wholesale... .” Williams IV, 378 F.3d at

1238 n.8.

Accordingly, we find that public morality survives

as a rational basis for legislation even after Lawrence,

and we find that in this case the State’s interest in the

preservation of public morality remains a rational basis

for the challenged statute. By upholding the statute, we

do not endorse the judgment of the Alabama legislature.

As we stated in Williams II:

However misguided the legislature of Alabama

may have been in enacting the statute challenged

in this case, the statute is not constitutionally

irrational under rational basis scrutiny because it

is rationally related to the State’s legitimate power

to protect its view of public morality. “The

Constitution presumes that. . . improvident

decisions will eventually be rectified by the

democratic process and that judicial intervention

is generally unwarranted no matter how unwisely

we may think a political branch has acted.” Vance

v. Bradley, 440 U.S. 93, 97, 99 S. Ct. 939, 942-943,

59 L. Ed. 2d 171 (1979). This Court does not

invalidate bad or foolish policies, only

unconstitutional ones; we may not “sit as a super-

legislature to judge the wisdom or desirability of

legislative policy determinations made in areas

that neither affect fundamental rights nor proceed

along suspect lines.” New Orleans v. Dukes, 427

U.S. 297, 303, 96 S. Ct. 2513,2517, 49 L.Ed. 2d 511

(1976).

Williams II, 240 F.3d at 952.

App. 16

CONCLUSION

For the foregoing reasons, we reaffirm our holding

in ‘Williams II that the challenged statute is

constitutional and we affirm the judgment of the district

court.

AFFIRMED.

App. 17

Sherri WILLIAMS, B.J. Bailey,

Plaintiffs-Appellees,

Betty Faye Haggermaker,

et al., Plaintiffs,

Alice Jean Cope, Jane Doe, Deborah L.

Cooper, Benny Cooper, Dan Bailey,

Jane Poe, Jane Roe, Plaintiffs—-Appellees,

Vv.

ATTORNEY GENERAL OF

ALABAMA, Defendant-

Appellant,

Tim Morgan, in his official capacity as

the District Attorney of the County

of Madison, Alabama, Defendant.

No. 02-16135.

United States Court of Appeals, Eleventh Circuit.

July 28, 2004.

Charles Brinsfield Campbell, Rouse, Scott Lee,

Montgomery, AL, for Troy King.

Michael L. Fees, Fees & Burgess, P.C., Huntsville,

AL, for Sherri Williams.

Mark J. Lopez, American Civil Liberties Union,

New York City, for B.J. Bailey.

Amy Louise Herring, Huntsville, AL, for Alice

Jean Cope, Deborah L. Cooper, Benny Cooper, Dan

Bailey.

App. 18

Appeal from the United States District Court for

the Northern District of Alabama.

Before BIRCH, BARKETT and HILL, Circuit

Judges.

BIRCH, Circuit Judge:

In this case,:the American Civil Liberties Union

(“ACLU”) invites us to add a new right to the current

catalogue of fundamental rights under the Constitution: a

right to sexual privacy. It further asks us to declare

Alabama’s statute prohibiting the sale of “sex toys” to be

an impermissible burden on this right. Alabama responds

that the statute exercises a time-honored use of state

police power—restricting the sale of sex. We are

compelled to agree with Alabama and must decline the

ACLU’s invitation.

I. BACKGROUND

Alabama’s Anti—Obscenity Enforcement Act

prohibits, among other things, the commercial

distribution of “any device designed or marketed as useful

primarily for the stimulation of human genital organs for

any thing of pecuniary value.” Ala. Code § 13A—12~200.2

(Supp.2003). eS:

The Alabama statute proscribes a relatively

narrow bandwidth of activity. It prohibits only the sale—

but not the use, possession, or gratuitous distribution—of

sexual devices (in fact, the users involved in this

litigation acknowledge that they already possess multiple

sex toys). The law does not affect the distribution of a

number of other sexual products such as ribbed condoms

1 Because the various user appellees and vendor appellees are all ©

represented by the ACLU, the driving force behind this litigation, “the

ACLU” will be used to refer collectively to appellees.

'

App. 19

or virility drugs. Nor does it prohibit Alabama residents

from purchasing sexual devices out of state and bringing

them back into Alabama. Moreover, the statute permits

the sale of ordinary vibrators and body massagers that,

although useful as sexual aids, are not “designed or

marketed ... primarily” for that particular purpose. Jd.

Finally, the statute exempts sales of sexual devices “for a

bona fide medical, scientific, educational, legislative,

judicial, or law enforcement purpose.” Jd. § 13A-12-

200.4.

This case, which is now before us on appeal for the

second time, involves a challenge to the constitutionality

of the Alabama statute. The ACLU, on behalf of various

individual users and vendors of sexual devices, initially

filed suit seeking to enjoin the statute on 29 July 1998, a

month after the statute took effect. The ACLU argued

that the statute burdens and violates sexual-device users’

right to privacy and personal autonomy under the

Fourteenth Amendment to the United States

Constitution.”

Following a bench trial, the district court

concluded that there was no currently recognized

fundamental right to use sexual devices and declined the

ACLU’s invitation to create such a right. Williams uv.

Pryor, 43 F. Supp. 2d. 1257, 1282-84 (N.D. Ala. 1999)

(Williams I). The district court then proceeded to

scrutinize the statute under rational basis review. Jd. at

1284. Concluding that the statute lacked any rational

basis, the district court permanently enjoined its

enforcement. Jd. at 1293.

On appeal, we reversed in part and affirmed in

part. Williams v. Pryor, 240 F.3d 944 (11th Cir. 2001)

(Williams IT). We reversed the district court’s conclusion

2 The ACLU also invokes the First, Fourth, Fifth, and Ninth

Amendments.

App. 20

that the statute lacked a rational basis and held that the

promotion and preservation of public morality provided a

rational basis. Jd. at ‘952. However, we affirmed the

district court’s rejection of the. ACLU’s facial

fundamental-rights challenge to the statute. Jd. at 955.

We then remanded the action to the district court for

further consideration of the as-applied fundamental-

rights challenge. Id. at 955.

On remand, the district court again struck down

the statute. Williams v. Pryor, 220 F.Supp.2d 1257 (N.D.

Ala. 2002) (Williams ITI). On cross motions for summary

judgment, the district court held that the statute

unconstitutionally burdened the right to use sexual

devices within private adult, consensual sexual

relationships. Jd. After a lengthy discussion of the history

of sex in America, the district court announced a

fundamental right to “sexual privacy,” which, although

unrecognized under any existing Supreme Court

precedent, the district court found to be deeply rooted in

the history and traditions of our nation. Jd. at 1296. The-

district court further found that this right “encompassf{es]

the right to use sexual devices like the vibrators, dildos, .

anal beads, and artificial vaginas” marketed by the

vendors involved in this case. Jd. The district court

accordingly applied strict scrutiny to the statute. Id.

Finding that the statute failed strict scrutiny, the district

court granted summary judgment to the ACLU and once

again enjoined the statute’s enforcement. Jd. at 1307.

Alabama now appeals that decision. The only

question on this appeal is whether the statute, as applied

to the involved users and vendors, violates any

fundamental right protected under the Constitution * The

3 As a threshold matter, Alabama also argues that the district court

lacked jurisdiction to hear the case because the vendors and users do

not have standing to sue. The district court properly concluded that

vendors and users have shown a high probability of suffering a legally

App. 21

proper analysis for evaluating this question turns on

whether the right asserted by the ACLU falls within the

parameters of any presently recognized fundamental

right or whether it instead requires us to recognize a

hitherto unarticulated fundamental right.

IT. DISCUSSION

We review a summary judgment decision de novo

and apply the same legal standard used by the district

court. Natl Parks Conservation Ass’n v. Norton, 324 F.3d

1229, 1236 (11th Cir. 2003). Our de novo review begins

with a discussion of the asserted right. Here, we reaffirm

our conclusion in Williams II, 240 F.3d at 954, that no

Supreme Court precedents, including the recent decision

in Lawrence v. Texas, 539 U.S. 558, 123 S. Ct. 2472, 156

L. Ed. 2d 508 (2003), are decisive on the question of the

existence of such a right. Because the ACLU is asking us

to recognize a new fundamental right, we then apply the

analysis required by Washington v. Glucksberg, 521 U.S.

702, 117 S. Ct. 2258, 138 L. Ed. 2d 772 (1997). As we

explain, we conclude that the asserted right does not

clear the Glucksberg bar.

A. Asserted Right

The Due Process Clause of the Fourteenth

Amendment provides that no State shall “deprive any

person of life, liberty, or property without due process of

law.” The most familiar function of this Clause is to

guarantee procedural fairness in the context of any

deprivation of life, liberty, or property by the State. The

users and vendors here do not claim to have been denied

procedural due process. Instead, they rely on the Due

Process Clause’s substantive component, which courts

cognizable injury as result of the statute and thus have demonstrated

standing, and we adopt its analysis in this regard. Williams III, 220

F.Supp.2d at 1267-73.

App. 22

have long recognized as providing “heightened protection

against government interference with certain

fundamental rights and liberty interests.” Troxel v.

Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 2060, 147 L.

Ed. 2d 49 (2000) (citation omitted).

The ACLU argues that the use of sexual devices is

among those activities that, although not

enumerated in the Constitution, are protected

under the concept of substantive due process.

According. to the ACLU, the State of Alabama,

through its prohibition on the commercial

distribution of sex toys qua sex toys, has intruded

into the most intimate of places—the bedrooms of

its citizens—and the lawful sexual conduct that

occurs therein. While the statute’s reach does not

directly proscribe the sexual conduct in question,

it places—without justification—a substantial and

undue burden on the ability of the plaintiffs to

obtain devices regulated by the statute. By

restricting sales of these devices to plaintiffs,

Alabama has acted in violation of the fundamental

rights of privacy and personal autonomy that

protect an individual’s lawful sexual practices

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

Fourteenth Amendments of the United States

Constitution.

Williams III, at 1261 (quoting the ACLU’s amended

complaint).

The ACLU invokes “privacy” and “personal

autonomy” as if such phrases were constitutional

talismans. In the abstract, however, there is no

fundamental right to either. See, e.g., Glucksberg, 521

U.S. at 725, 117 S. Ct. at 2270 (fundamental rights are

“not simply deduced from abstract concepts of personal

autonomy”). Undoubtedly, many fundamental rights

App. 23

currently recognized under Supreme Court precedent

touch on matters of personal autonomy and privacy.

However, “[t]hat many of the rights and liberties

protected by the Due Process Clause sound in personal

autonomy does not warrant the sweeping conclusion that

any and all important, intimate, and personal decisions

are so protected.” Jd. at 727, 117 S. Ct. at 2271. Such

rights have been denominated “fundamental” not simply

because they implicate deeply personal and private

considerations, but because they have been identified as

“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.” Jd. at 720-21, 117 S. Ct. at 2268 (internal

. citations and quotation marks omitted).

Nor, contrary to the ACLU’s assertion, have the

Supreme Court’s substantive-due-process precedents

recognized a freestanding “right to sexual privacy.” The

Court has been presented with repeated opportunities to

identify a fundamental right to sexual privacy—and has

invariably declined. See, e.g., Carey v. Population Servs.

Intl, 431 U.S. 678, 688 n. 5, 97S. Ct. 2010, 2018 n. 5, 52

L. Ed. 2d 675 (1977) (noting that the Court “has not

definitively answered the difficult question whether and

to what extent the Constitution prohibits state statutes

regulating private consensual sexual behavior among

adults, and we do not purport to answer that question

now”) (internal citation and punctuation omitted).

Although many of the Court’s “privacy” decisions have

implicated sexual matters, see, e.g., Planned Parenthood

uv. Casey, 505 U.S. 833, 112 S. Ct. 2791, 120 L. Ed. 2d 674

(1992) (abortion); Carey, 431 U.S. at 678, 97 S. Ct. at

2010 (contraceptives), the Court has never indicated that

the mere fact that an activity is sexual and private

entitles it to protection as a fundamental right.

App. 24

The Supreme Court’s most recent opportunity to

recognize a fundamental right to sexual privacy came in

Lawrence v. Texas, where petitioners and amici expressly

invited the court to do so.* That the Lawrence Court had

declined the invitation was this court’s conclusion in our

recent decision in Lofton v. Sec. of Dept. of Children and

Family Servs., 358 F.3d 804, 815-16 (11th Cir. 2004). In

Lofton, we addressed in some detail the “question of

whether Lawrence identified a new fundamental right to

private sexual intimacy.” Id. at 815. We concluded that,

although Lawrence clearly established the

unconstitutionality of criminal prohibitions on consensual

adult sodomy, “it is a strained and ultimately incorrect

reading of Lawrence to interpret it to announce a new

fundamental right’—whether to homosexual sodomy

specifically or, more broadly, to all forms of sexual

intimacy. Jd. at 817. We noted in particular that the

Lawrence opinion did not employ fundamental-rights

analysis and that it ultimately applied rational-basis

review, rather than strict scrutiny, to the challenged

statute. Id. at 816-17.°

4 See Tr. of Oral Argument, No. 02-102, at *4; Br. of the ACLU et al.

as Amici Curiae, No. 02-102, at *11-25.

5 See also Lofton v. Sec’y of the Dep’t of Children and Family Servs.,

377 F.3d 1275, 2004 WL 1627022 (11th Cir. July 21, 2004) (Birch, J.,

specially concurring in denial of rehearing en banc).

6 Lofton stated in relevant part:

We are particularly hesitant to infer a new fundamental liberty

interest from an opinion whose language and reasoning are

inconsistent with standard fundamental-rights analysis. The Court

has noted that it must “exercise the utmost care whenever [it is] asked

to break new ground” in the field of fundamental rights, which is

precisely what the Lawrence petitioners and their amici curiae had

asked the Court to do. That the Court declined the invitation is

apparent from the absence of the “two primary features” of

fundamental-rights analysis in its opinion. First, the Lawrence

opinion contains virtually no inquiry into the question of whether the

petitioners’ asserted right is one of “those fundamental rights and

App. 25

The dissent seizes on scattered dicta from

Lawrence to argue that Lawrence recognized a

substantive due process right of consenting adults to

engage in private intimate sexual conduct, such that all

infringements of this right must be subjected to strict

scrutiny.’ As we noted in Lofton, we are not prepared to

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.” Second,

the opinion notably never provides the “ ‘careful description’ of the

asserted fundamental liberty interest” that is to accompany

fundamental-rights analysis. Rather, the constitutional liberty

interests on which the Court relied were invoked, not with “careful

description,” but with sweeping generality. Most significant, however,

is the fact that the Lawrence Court never applied strict scrutiny, the

proper standard when fundamental rights are implicated, but instead

invalidated the Texas statute on rational-basis grounds, holding that

it “furthers no legitimate state interest which can justify its intrusion

into the personal and private life of the individual.”

Id. at 816—17 (internal citations omitted).

7 The dissent argues that certain declarations of the Lawrence Court

signal a fundamental right; for example: “the Due Process Clause has

a substantive dimension of fundamental significance in defining the

rights of the person,” Lawrence, 123 S. Ct. at 2477 (emphasis added);

dissent at 1253; and that “liberty gives substantial protection to adult

persons in deciding how to conduct their private lives in matters

pertaining to sex,” id. at 2480 (emphasis added); dissent at 1259.

However, neither of these quoted excerpts from Lawrence support

such a broad proposition when read in context. The first quotation

comes from the Lawrence Court’s synopsis of Roe, which it mentioned

in its survey of the privacy cases preceding Bowers. 123 S. Ct. at 2477

(“Roe recognized the right of a woman to make certain fundamental

decisions affecting her destiny and confirmed once more that the

protection of liberty under the Due Process Clause has a substantive

dimension of fundamental significance in defining the rights of the

person.”). The second comes from the Court’s discussion of how Bowers

overstated the legal and historical condemnation of homosexual

conduct, failing to recognize the “emerging awareness that liberty

gives substantial protection to adult persons in deciding how to

conduct their private lives in matters pertaining to sex.” Id. at 2480

(“This emerging recognition should have been apparent when Bowers

was decided.”).

App. 26

infer a new fundamental right from an opinion that never

employed the usual Glucksberg analysis for identifying

such rights. Jd. at 816. Nor are we prepared to assume

that Glucksberg—a precedent that Lawrence never once

mentions—is overruled by implication.

_ The dissent in turn argues that the right

recognized in Lawrence was a longstanding right that

preexisted Lawrence, thus obviating the need for any

Glucksberg-type fundamental rights analysis. But the

dissent never identifies the source, textual or

precedential, of such a preexisting right to sexual privacy.

It does cite Griswold, Eisenstadt, Roe, and Carey.

However, although these precedents recognize various

substantive rights closely related to sexual intimacy, none

of them recognize the overarching right to sexual privacy

asserted here. Griswold (marital privacy and

contraceptives); Eisemstadt (equal protection extension of

Griswold); Roe (abortion); Carey (contraceptives). As we

noted above, in the most recent of these decisions, Carey,

the Court specifically observed that it had not answered

the question of whether there is a constitutional right to

private sexual conduct.® 431 U.S. at 688 n. 5, 97S. Ct. at

It is telling that the best support for the fundamental-right-to-sexual-

intimacy interpretation of Lawrence must be assembled from bits of

dicta. It is equally telling the dissent cites no language from the

opinion—much less language articulating a rule of law—that states

with any precision the right that Lawrence purportedly held to exist,

or the standard of review that it triggers. Instead, the dissent

characterizes our analysis as “demeaning and dismissive” yet fares

little better in its attempt to overstate the effect of the Alabama law

on the day-to-day sexual activities of consenting adults in their homes.

8 Contrary to the dissent’s accusation that “[t]he majority refuses ... to

acknowledge why the Court in Lawrence held that criminal

prohibitions on consensual sodomy are unconstitutional,” we have

refused to do no such thing. What we have refused to do, as we suggest

the dissent has done, is to create a rationale that was not articulated

as to the “why” for the ruling. The operative legal conclusion that we

come to as a basis for the decision in Lawrence is that Texas’s sodomy

prohibition did not further a legitimate state interest. Lawrence, 539

App. 27

U.S. 558, 123 S. Ct. 2472, 2484, 156 L. Ed. 2d 508; Lofton v. Sec. of

Dep’t of Children and Family Servs., 358 F.3d 804 (11th Cir. 2004)

(Birch, J., specially concurring in denial of rehearing en banc). We

appreciate that the dissent does not agree with our analysis, but we

have not “refused” to answer the dissent’s question—notably, nobody

else in the litigation has posed the question.

The dissent also flatly states that the Lawrence Court rejected public

morality as a legitimate state interest that can justify criminalizing

private consensual sexual conduct, but this conclusion ignores the

obvious difference in what this statute forbids and the prohibitions of

the Texas statute. There is nothing “private” or “consensual” about the

advertising and sale of a dildo. And such advertising and sale is just as

likely to be exhibited to children as to “consenting adults.” Moreover,

the Supreme Court has noted on repeated occasions that laws can be

based on moral judgments. See Barnes v. Glen Theatre, 501 U.S. 560,

569, 111 S. Ct. 2456, 2462, 115 L. Ed. 2d 504 (1991) (upholding a

public indecency statute, stating, “This and other public indecency

statutes were designed to protect morals and public order. The

traditional police power of the States is defined as the authority to

provide for the public health, safety, and morals, and we have upheld

such a basis for legislation”); id. (noting that “a legislature could

legitimately act ... to protect ‘the social interest in order and

morality”) (citation omission); Gregg v. Georgia, 428 U.S. 153, 183, 96

S. Ct. 2909, 2930, 49 L. Ed. 2d 859 (1976) (plurality opinion)

(upholding the death penalty, noting that “capital punishment is an

expression of society’s moral outrage at particularly offensive

conduct”); Paris Adult Theatre I v. Slaton, 413 U.S. 49, 61, 93 S. Ct.

2628, 2637, 37 L. Ed. 2d 446 (1973) (holding that Georgia had a

legitimate interest in regulating obscene material because the

legislature “could legitimately act ... to protect ‘the social interest in

order and morality”) (quoting Roth v. United States, 354 U.S. 476,

485, 77 S. Ct. 1304, 1309, 1 L. Ed. 2d 1498 (1957)); United States v.

Bass, 404 U.S. 336, 348, 92 S. Ct. 515, 522, 30 L. Ed. 2d 488 (1971)

(noting that “criminal punishment usually represents the moral

condemnation of the community”). In addition, our own recent

precedent has unequivocally affirmed the furtherance of public

morality as a legitimate state interest. See, e.g., Williams v. Pryor, 240

F.3d 944, 949 (11th Cir.2001) (“The crafting and safeguarding of public

morality has long been an established part of the States’ plenary police

power to legislate and indisputably is a legitimate government

interest under rational basis scrutiny.”); see also id. at 949 n. 3 (“In

fact, the State’s interest in public morality is sufficiently substantial to

satisfy the government’s burden under the more rigorous intermediate

level of constitutional scrutiny applicable in some cases.”). One would

expect the Supreme Court to be manifestly more specific and

App. 28

2018 n. 5. Moreover, nearly two decades later, the

Glucksberg Court, listing the current catalog of

fundamental rights, did not include such a right. 521 U.S.

at 720, 117 S. Ct. at 2267.

In short, we decline to extrapolate from Lawrence

and its dicta a right to sexual privacy triggering strict

scrutiny. To do so would be to impose a fundamental-

rights interpretation on a decision that rested on

rational-basis grounds, that never engaged in Glucksberg

analysis, and that never invoked strict scrutiny.

Moreover, it would be answering questions that the

Lawrence Court appears to have left for another day. Of

course, the Court may in due course expand Lawrence’s

precedent in the direction anticipated by the dissent. But

for us preemptively to take that step would exceed our

mandate as a lower court.®

articulate than it was in Lawrence if now such a traditional and

significant jurisprudential principal has been jettisoned wholesale

(with all due respect to Justice Scalia’s ominous dissent

notwithstanding).

9 The dissent indicates that “even under the majority’s own

constrained interpretation of Lawrence, we are, at a bare minimum,

obliged to revisit four] previous conclusion in Williams v. Pryor, 240

F.3d 944 (11th Cir. 2001) (‘Williams II’)” that this law has a rational

basis in light of Lawrence’s overruling of Bowers and our reliance in

Williams II “on the now defunct Bowers to conclude that public

morality provides a legitimate state interest.” Dissent at 1259. We

agree with the dissent that, on remand, the district court, after

considering the appropriate submissions of the parties, may examine

“whether our holding in Williams II that Alabama’s law has a rational

basis (e.g., public morality) remains good law now that Bowers has

been overruled.” Id. at 1259, n. 25. We save for a later day

consideration of whether Justice Scalia’s (perhaps ominous)

predication that public morality may no longer serve as a rational

basis for legislation after Lawrence.

App. 29

B. Glucksberg Analysis

Because the ACLU is seeking recognition of a

right neither mentioned in the Constitution nor

encompassed within the reach of the Supreme Court’s

existing fundamental-right precedents, we must turn to

the two-step analytical framework that the Court has

established for evaluating new fundamental-rights

claims. See Glucksberg, 521 U.S. at 720-21, 117 S. Ct. at

2268. First, in analyzing a request for recognition of a

new fundamental right, or extension of an existing one,

we “must begin with a careful description of the asserted

right.” Reno v. Flores, 507 U.S. 292, 302, 113 S. Ct. 1439,

1447, 123 L. Ed. 2d 1 (1993); see also Glucksberg, 521

U.S. at 721, 117 S. Ct. at 2268. Second, and most

critically, we must determine whether this asserted right,

carefully described, is one of “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.” Glucksberg, 521 U.S.

at 720-21, 117 S. Ct. at 2268 (internal citations and

quotation marks omitted).

This analysis, as the Supreme Court has stressed,

must proceed with “utmost care” because of the dangers

inherent in the process of elevating extra-textual rights to

constitutional status, thereby removing them from the

democratic field of play:

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, lest the liberty protected by the Due Process Clause

be subtly transformed into the policy preferences of the

members of this Court.

App. 30

Id. at 720, 117 S. Ct. at 2267-68 (internal citations and

quotation marks omitted). The mandate to proceed

carefully applies with added force when venturing into

terrain where the Supreme Court itself has tread lightly,

as it has here. As we explain, the district court failed to

exercise this “utmost care” in conducting the two- -pi ——

Glucksberg analysis.

i Careful Description

As we noted in Williams IJ, the district court’s

initial opinion “narrowly framed the analysis as the

question whether the concept of a constitutionally

protected right to privacy protects an individual’s liberty

to use sexual devices when engaging in lawful, private,

sexual activity.” 240 F.3d at 953 (internal quotation

marks omitted). On appeal, we affirmed this formulation,

stating that “the district court correctly framed the

fundamental rights analysis in this case.” Jd. However,

on remand, the district court abandoned its initial,

careful framing of the issue and instead characterized the

asserted right more broadly as a generalized “right to

sexual privacy.” Williams IIT, 220 F. Supp. 2d at 1277

(emphasis omitted)."°

In searching for, and ultimately finding, this right

to sexual privacy, the district court did little to define its

scope and bounds. As formulated by the district court, the

right potentially encompasses a great universe of sexual

activities, including many that historically have been,

and continue ‘to be, prohibited. At oral arguments, the

10 Although our Williams II opinion indicated from the outset that the

district court’s initial narrow framing of the right was the proper

approach, 240 F.3d at 953, we note that it created a degree of

ambiguity by making a subsequent shorthand reference to this right

as “a fundamental right to sexual privacy,” id. at 955. It appears that

this imprecision in our language was, at least in part, the source of the

district court’s over-broad framing of the right on remand. Williams

Ili, 220 F. Supp. 2d at 1276.

App. 31

ACLU contended that “no responsible counsel” would

challenge prohibitions such as those against pederasty

and adult incest under a “right to sexual privacy” theory.

However, mere faith in the responsibility of the bar

scarcely provides a legally cognizable, or constitutionally

significant, limiting principle in applying the right in

future cases."

The sole limitation provided by the district

court’s ruling was that the right would extend only to

consenting adults. Id. at 1294. The consenting-adult

formula, of course, is a corollary to John Stuart Mill’s

celebrated “harm principle,” which would allow the state

to proscribe only conduct that causes identifiable harm to

another. See generally John Stuart Mill, On Liberty

(Elizabeth Rapaport ed., Hackett Pub. Co. 1978) (1859).

Regardless of its force as a policy argument, however, it

does not translate ipse dixit into a constitutionally

cognizable standard. See Paris Adult Theatre I v. Slaton,

413 U.S. 49, 68, 93 S. Ct. 2628, 2641, 37 L. Ed. 2d 446

(1973) (“[Flor us to say that our Constitution incorporates

the proposition that conduct involving consenting adults

only is always beyond state regulation, is a step we are

unable to take.”).

If we were to accept the invitation to recognize a

right to sexual intimacy, this nght would theoretically

encompass such activities as prostitution, obscenity, and

adult incest—even if we were to limit the right to

consenting adults. See, e.g., id. at 68 n. 15, 93 S. Ct. at

2641 n. 15 (“The state statute books are replete with

11 As Thomas Jefferson noted, “In questions of power, then, let no

more be heard of confidence in man, but bind him down from mischief

by the chains of the Constitution.” Thomas Jefferson, Draft Kentucky

Resolutions, 1798. Although usually invoked in slightly different

contexts, this principle—that, in our republican system, we do not

entrust constitutional limitations to human good will or self-

restraint—has equal force here.

App. 32

constitutionally unchallenged laws against prostitution,

suicide, voluntary self-mutilation, brutalizing ‘bare fist’

prize fights, and duels, although these crimes may only

directly involve ‘consenting adults.”). This in turn would

require us to subject all infringements on such activities

to strict scrutiny. Glucksberg, 521 U.S. at 721, 1175S. Ct.

at 2268. In short, by framing our inquiry so broadly as to

look for a general right to sexual intimacy, we would be

answering many questions not before us on the present

facts.

Indeed, the requirement of a “careful description”

is designed to prevent the reviewing court from venturing

into vaster constitutional vistas than are called for by the

facts of the case at hand. See Brockett v. Spokane

Arcades, Inc., 472 U.S. 491, 501, 105 S. Ct. 2794, 2801, 86

L. Ed. 2d 394 (1985). One of “the cardinal rules” of

constitutional jurisprudence is that the scope of the

asserted right—and thus the parameters of the inquiry—

must be dictated “by the precise facts” of the immediate

case. Id.; see also Cruzan v. Director, Mo. Dept. of Health,

497 U.S. 261, 277-78, 110 S. Ct. 2841, 2851, 111 L. Ed.

2d 224 (1990) (“[I]n deciding a question of such

magnitude and importance it is the better part of wisdom

not to attempt, by any general statement, to cover every

possible phase of the subject.”) (citation and internal

punctuation omitted).

Glucksberg and Flores, cases in which the Court

was asked to expand certain substantive due process

rights, are instructive examples. In Glucksberg, the lower

court and the petitioners had variously characterized the

asserted right as “a liberty interest in determining the

time and manner of one’s death,” 521: U.S. at 722, 117 S.

Ct. at 2269, “a liberty to choose how to die and a right to

control one’s final days,” id. and the “liberty of

competent, terminally ill adults to make end-of-life

decisions free of undue government interference,” id. at

App. 33

724, 117 S. Ct. at 2269. The Court rejected these

characterizations as overbroad, noting its “tradition of

carefully formulating the interest at stake in substantive-

due-process cases.” Id. at 722, 117 S. Ct. at 2269. Then,

looking to the specific statute under challenge—a ban on

assisted suicide—the Court recast the asserted right as “a

right to commit suicide which itself includes a right to

assistance in doing so,” id., or as “a right to commit

suicide with another’s assistance,” id. at 724, 117S. Ct. at

2269.

Under challenge in Flores was an immigration

regulation that governed the detention and release of

alien juveniles. 507 U.S. at 294-98, 113 S. Ct. at 1443-45.

The respondents, a class of detained alien juveniles,

argued that the regulation violated their “fundamental

right to freedom from physical restraint.” Jd. at 299, 113

S. Ct. at 1446 (internal quotation marks omitted). The

Supreme Court, emphasizing the importance of beginning

substantive-due-process analysis with a “careful

description,” rejected respondents’ broad formulation of

the implicated liberty interests. 507 U.S. at 302, 113 S.

Ct. at 1447. The Court then restated the putative right—

by careful reference to the challenged regulation:

The “freedom from physical restraint” invoked by

respondents is not at issue in this case.... Nor is

the right asserted the right of a child to be

released from all other custody into the custody of

its parents, legal guardian, or even close relatives:

The challenged regulation requires such release

when it is sought. Rather, the right at issue is the

alleged right of a child who has no available

parent, close relative, or legal guardian, and for

whom the government is responsible, to be placed

in the custody of a willing-and-able private

custodian rather than of a government-operated or

government- selected child-care institution.

App. 34

Id. (internal citations omitted).

As in Glucksberg and Flores, the scope of the

liberty interest at stake here must be defined in reference

to the scope of the Alabama statute. We begin by

observing that the broad mghts to “privacy” and “sexual

privacy” invoked by the ACLU are not at issue. The

statute invades the privacy of Alabama residents in their

bedrooms no more than does any statute restricting the

availability of commercial products for use in private

quarters as sexual enhancements.” Instead, the

challenged Alabama statute bans the commercial

distribution of sexual devices. At a minimum, therefore,

the putative right at issue is the right to sell and

purchase sexual devices.

It is more than that, however. For purposes of

constitutional analysis, restrictions on the ability to

purchase an item are tantamount to restrictions on the

use of that item. Thus it was that the Glucksberg Court

analyzed a ban on providing suicide assistance as a

12 The mere fact that a product is used within the privacy of the

bedroom, or that it enhances intimate conduct, does not in itself bring

the use of that article within the right to privacy. If it were otherwise,

individuals whose sexual gratification requires other types of material

or instrumentalities—perhaps hallucinogenic substances, depictions of

child pornography or bestiality, or the services of a willing prostitute—

likewise would have a colorable argument that prohibitions on such

activities and materials interfere with their privacy in the

bedchamber. Under this theory, all such sexual-enhancement

paraphernalia (as long as it was used only in consensual encounters

between adults) would also be encompassed within the right to

privacy—and any burden thereon subject to strict scrutiny.

13 Advocating that public morality should no longer be a “rational

basis to restrict private sexual activity,” the dissent seeks to ignore

that the legislation at issue bans by its express terms only the

unsavory advertising and sale of sexual devices that the majority of

the people of Alabama may well find morally offensive. The fact

remains that the complainants here continue to possess and use such

devices, burdened only by inconvenient access.

burden on the right to receive suicide assistance. 521 U.S.

at 723, 117 S. Ct. at 2269. Similarly, prohibitions on the

sale of contraceptives have been analyzed as burdens on

the use of contraceptives. Carey, 431 U.S. at 688, 97 S. Ct.

at 2018 (“[T]he same test must be applied to state

regulations that burden an individual’s right ... by

substantially limiting access to the means of effectuating

that decision as is applied to state statutes that prohibit

the decision entirely.”). Because a prohibition on the

distribution of sexual devices would burden an

individual’s ability to use the devices, our analysis must

be framed not simply in terms of whether the

Constitution protects a right to sell. and buy sexual

devices, but whether it protects a mght to use such

devices.

App. 36

2. “History and Tradition” and “Implicit in

the Concept of Ordered Liberty”

With this “careful description” in mind, we turn

now to the second prong of the fundamental-rights

inquiry. The crucial inquiry under this prong is whether

the right to use sexual devices when engaging in lawful,

private sexual activity is (1) “objectively, deeply rooted in

this Nation’s history and tradition” and (2) “implicit in

the concept of ordered liberty, such that neither liberty

nor justice would exist if [it] were sacrificed.” Glucksberg,

521 U.S. at 721, 117 S. Ct. at 2268 (citations omitted).

Although the district court never addressed the second

part of this inquiry, it answered the “history and

tradition” question in the affirmative.

We find that the district court, in reaching this

conclusion, erred on four levels. The first error relates

back to the district court’s over-broad framing of the

asserted right in question. Having framed the relevant

right as a generalized “right to sexual privacy,” the

district court’s history and tradition analysis consisted

largely of an irrelevant exploration of the history of sex in

America. Second, we find that this analysis placed too

much weight on contemporary practice and attitudes with

respect to sexual conduct and sexual devices. Third,

rather than look for a history and tradition of protection

of the asserted right, the district court asked whether

there was a history and tradition of state non-interference

with the right. Finally, we find that the district court’s

uncritical reliance on certain expert declarations in

interpreting the historical record was flawed and that its

reliance on certain putative “concessions” was unfounded.

App. 37

a. The Scope of the District Court’s

History and Tradition Analysis

The district court began its Glucksberg mandated

history and tradition inquiry by defining its task as one of

determining whether to “recognize a fundamental right to

sexual privacy.” Williams III, 220. F. Supp. 2d at 1277.

After an extensive survey of the history of sex in

American culture and law—replete with cites to the

Kinsey studies and Michel Foucault—the district court

concluded that “there exists a constitutionally inherent

right to sexual privacy that firmly encompasses state

noninterference with private, adult, consensual sexual

relationships.” Jd. at 1296. As examined above, the

Supreme Court’s own reticence in this area, and its

admonition to carefully define the right at stake, convince

us that the district court erred in undertaking to find a

generalized “right to sexual privacy.” Given this over-

broad starting point, the district court’s subsequent

inquiry, predictably, was likewise broader than called for

by the facts of the case. The inquiry should have been

focused not broadly on the vast topic of sex in American

cultural and. legal history, but narrowly and more

precisely on the treatment of sexual devices within that

history and tradition.

b. The District Court’s Focus on

“Contemporary Practice”

In reaching its holding, the district court relied

heavily on “contemporary practice,” emphasizing the

“contemporary trend of legislative and _ societal

liberalization of attitudes toward consensual, adult

sexual activity.” Id. at 1294; see generally id. at 1289-94;

see also id. at 1296 (holding that “there is a ‘history, legal

tradition, and practice’ in this country of deliberate state

non-interference with private sexual] relationships

between married couples, and a contemporary practice of

App. 38

the same between unmarried persons”) (emphasis added)

(citation omitted). .

Our first concern is the legal significance, or the

lack thereof, of much of the district court’s source

material for this contemporary practice. In addition to -

invoking a cluster of Supreme Court precedents touching

on matters of procreation and familial integrity, the

district court looked to social science data respecting

premarital intercourse, marriage and divorce rates, and

the like. Jd. at 1290. It further noted the revolutionary

impact of the Kinsey studies, the “imagery and

implements of adult sexual relationships [that] pervade

modern American society,” the availability of

“pornography of the grossest sort,” and the “widespread

marketing” of Viagra (including by such notable

personalities as former United States Senate Majority

Leader and 1996 Republican presidential candidate

Robert J. Dole and popular NASCAR driver Mark

Martin).” Id. at 1294. While such evidence undoubtedly

confirms the district court’s discovery of “the specter of a

twentieth century sexual liberalism,” id. at 1291, its

relevance under Glucksberg is scant.

The district court justified this emphasis by noting

that the Glucksberg Court had relied on contemporary

practice in reaching its determination that assisted

suicide is not a constitutional right. See, e.g., id. at 1275

(Glucksberg “considered current statutes, legislative

debates, voter initiatives, and the positions of

contemporary task forces and commissions on the issue of

assisted suicide”). This gloss, however, considerably

overstates that Court’s reliance on contemporary

attitudes. What the Glucksberg Court did was to note

that democratic action in many states had recently

reaffirmed assisted-suicide bans, thus buttressing the

Court’s conclusion that assisted suicide is not deeply

rooted in the history and traditions of the nation. 521

App. 39

U.S. at 716-19, 117 S. Ct. at 2265-67. But the existence

of this contemporary practice was never essential to that

conclusion. That is, the Court never suggested that a lack

of contemporary reinforcement of the prohibition on

assisted suicide would have led it to a contrary

conclusion. The district court’s interpretation also

overlooks the context of Glucksberg’s contemporary

practice analysis. The Court began its examination of

history and tradition by inquiring “whether this asserted

right has any place in our Nation’s traditions.” Jd. at 723,

1178S. Ct. at 2269 (emphasis added). Having found that it

did not, the Court had no need to proceed to the further

question of whether that right was deeply rooted in those

traditions (nor whether it was “implicit in the concept of

ordered liberty”). Part of the reason the Court was able to

dismiss the asserted right so summarily was because it

found that the prohibition on assisted suicide “continues

explicitly” to the present. Jd. In short, the democratic

action cited by Glucksberg was merely one factor among

many disproving the claim that assisted suicide is a

“deeply rooted” right.”

& The District Court’s Faulty

Equation of Historical Non-

Interference with Historical

Protection

The district court’s central holding—its discovery

of a constitutional “right to use sexual devices like ...

14 The focus on the trajectory of contemporary practice ultimately

proves too much. The fact that there is an emerging consensus

scarcely provides justification for the courts, who often serve as an

anti-majoritarian seawall, to be swept up with the tide of popular

culture. If anything, it is added reason for us to permit the democratic

process to take its course. See, e.g., Glucksberg, 521 US. at 735, 117S.

Ct. at 2275 (“Throughout the Nation, Americans are engaged in an

earnest and profound debate about the morality, legality, and

practicality of physician-assisted suicide. Our holding permits this

debate to continue, as it should in a democratic society.”).

App. 40

vibrators, dildos, anal beads, and artificial vaginas”—was

not based on any evidence of a history and tradition of

affirmative protection of this right. Williams III, 220 F.

Supp. 2d at 1296. The district court’s lengthy. opinion

cites no reference to such a right in the usual repositories

of our freedoms, such as federal and state constitutional

provisions, constitutioma! doctrines, statutory provisions,

common-law doctrines, and the like. Instead, the critical

evidence for the district court was the relative scarcity of

statutes explicitly banning sexual devices and the rarity

of reported cases of sexual-devices prosecutions—along

with various factual assertions from declarations by the

ACLU’s experts. From this, the district court inferred

“that history and contemporary practice demonstrate a

conscious avoidance of regulation of [sexual] devices by

the states.” Id. at 1296.

This negative inference essentially inverted

Glucksberg’s history and tradition inquiry. Glucksberg,

521 U.S. at 721, 117 S. Ct. at 2268. The district court—

rather than requiring a showing that the right to use

sexual devices is “deeply rooted in this Nation’s history

and tradition,” id.—looked for a showing that

proscriptions against sexual devices are deeply rooted in

history and tradition. Under this approach, the freedom

to smoke, to pollute, to engage in private discrimination,

to commit marital rape—at one time or another—all

could have been elevated to fundamental-rights status.

Moreover, it would create the perverse incentive for

legislatures to regulate every area within their plenary

power for fear that their restraint in any area might give

rise to a right of constitutional proportions.

Beyond these obvious objections, the most

significant flaw in the district court’s analysis is its

misreading of Glucksberg. Admittedly, the Glucksberg

Court, in declining to extend constitutional protection to

assisted suicide, cited the extensive history: of laws

App. 41

forbidding or discouraging suicide. But the context of this

inquiry was the Court’s attempt to determine whether a

right to suicide, and particularly assisted suicide, was

deeply rooted in American history and _ tradition.

Naturally, prohibitions on suicide were particularly

competent evidence of the absence of such a history and

tradition. The Gilucksberg Court, however, never

suggested that the reviewing court must find a history of

proscription of a given activity before declining to

recognize a new constitutional right to engage in that

activity. Id. at 710-16, 117 S. Ct. at 2262-65; see also id.

at 725, 117 S. Ct. at 2270 (rejecting the analogy between

the constitutionally-protected right to refuse unwanted

medical treatment and the asserted right to assisted

suicide, noting that the former right “has. never enjoyed

similar legal protection”).

In short, nothing in Glucksberg indicates that an

absence of historical prohibition is tantamount, for

purposes of fundamental-rights analysis, to an historical

record of protection under the law. To the contrary, the

Glucksberg standard expressly requires a showing that

the asserted right is “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 [it] were sacrificed.” Jd. at 721, 117S. Ct. at

2268. Not only does the record before us fail to evidence

such a deeply rooted right, but it suggests that, to the

extent that sex toys historically have attracted the

attention of the law, it has been in the context of

proscription, not protection.

The chief example of this proscription is the

“Comstock Laws,” federal and state legislation adopted in

the late 1800s. The federal Comstock Act of 1873 was a

criminal statute directed at “the suppression of Trade in

and Circulation of obscene Literature and Articles of

immoral Use.” See Bolger v. Youngs Drug Prods. Corp.,

ce eee ee ee ee

—— eee ee ee

App. 42

463 U.S. 60, 70, 103 S. Ct. 2875, 2882, 77 L. Ed. 2d 469

(1983) (quoting Act of March 3, 1873, ch. 258, § 2, 17 Stat.

599 (1873)). The Act prohibited importation of and use of

the mails for transporting, among other things, “every

article or thing intended or adapted for any indecent or

immoral use.” United States v. Chase, 135 U.S. 255, 257,

10 S. Ct. 756, 756, 34 L. Ed. 117 (1890). Various states

also enacted similar statutes prohibiting the sale of such

articles. See, e.g., CONN. GEN.STAT. § 1325 (1902);

MASS. GEN. LAWS ANN. ch. 272 § 21 (West 2004)

(passed 1879).

The district court, however, discounted the

significance of the Comstock laws, describing them as

“aberrant to the sexual privacy” generally afforded to

consensual, adult sexual conduct. Williams III, 220 F.

Supp. 2d. at 1286. The district court cited expert

declarations offered by the ACLU to the effect that the

Comstock laws were not motivated primarily by a desire

to ban sexual devices. Jd. The district court further noted

that searches of the annotations to the Comstock Act and

of Federal Cases found no references to cases involving

dildos and vibrators. Jd. at 1287.

Even if these prohibitions on sexual devices were

not widespread or vigorously enforced, their mere

existence significantly undermines the argument that

sexual devices historically have been free from state

interference. Moreover, the lack of statutory references to

sexual devices is relatively meaningless without evideace

that commerce in these devices was _ sufficiently

widespread, or sufficiently in the public eye, to merit

legislative attention, at least beyond general anti-

obscenity laws. Likewise, the focus on searches of federal

case reporters for references to “vibrators” or “dildos”

assumes, unjustifiably, that reported cases are reliable

proxies for actual prosecutions, the vast majority of which

would have never appeared in the court reporters (it also

App. 43

overlooks the possibility of prosecutions under state law).

It also overlooks the possibility that traditional

sensibilities and mores restrained courts from explicitly

mentioning particular sexual devices in the text of

judicial opinions. S

In light of these realities, the negative inference

drawn by the district court—that the scarcity of explicit

reference to sexual devices in statutory schemes and

reported cases reflects a “deliberate non-interference,” id.

at 1286—is too speculative a basis for constitutionalizing

a hitherto unrecognized right. This is especially true

given the lack of any indicia of ‘affirmative protection

under the law. In short, there is no competent evidence in

the record before us indicating that the lack of explicit

and aggressive proscription of sex toys was, as the district

court surmised, “conscious avoidance of regulation of

these devices by the states.” Jd. at 1296.

d. The District Court’s Handling of the

Record

i. Te District Court’s Reliance

on the ACLU’s’ Expert

Declarations

Finally, we note our recognition of the district

court’s uncritical acceptance of the bare assertions

contained in the ACLU’s_ expert declarations—

particularly in reaching conclusions outside, or even in

apparent contradiction to, the documented historical

record.

This perfunctory reliance was especially

pronounced in the district court’s deconstruction of the

Comstock laws. The mere existence of both federal and

state Comstock laws—especially the federal Comstock

Act, which expressly prohibited importation and mail

App. 44

transport of “every article ... for ... immoral use”’—

seriously undermines the ACLU’s fundamental-rights

argument under Glucksberg. Instead, the district court’s

review of the Comstock laws led it to the conclusion that

“(t]he popularity, legality, and ease of access to sexual

devices like vibrators and dildos further demonstrate that

the firm legislative respect for sexual privacy in the

marital relationship extended to deliberate non-

interference with adults’ use of sexual devices within

those relationships.” Jd. at 1286.

The sole support for this rather cursory conclusion

appears to have been the assertions of one Rachel

Maines, an historian and author, who submitted two

separate expert declarations on the ACLU’s behalf. R3-

56, Ex. A; R4—84, Ex. 4. Her declarations offered criticism

of the Alabama statute going well beyond her’ specific

expertise and delving into the legal and policy dimensions

of the case:

Laws like Alabama’s that target the appearance,

packaging or marketing of [sexual] devices, rather than

their functionality, thus do not prevent or mitigate the

supposed “evil” of “commerce of sexual stimulation and

auto-eroticism, for its own sake” (Brief of Alabama

Attorney General, 21). Their effect is merely to benefit

one set of retailers (drug stores, health food stores, and

discount houses such as Walmart, GNC and Target) at

the expense of another (marital aids vendors).

R3-56, Ex. A at 18-21.

On the historical record, if devices “designed or

marketed as useful primarily for the stimulation

of the human genital organs” represent an evil

and/or a moral threat to the citizens of Alabama,

the state has been remarkably dilatory in making

this discovery, having waited for something more

than two and a half millennia from the invention

App. 45

of the dildo and more than a century from the

invention of the electromechanical vibrator to

legislate against them. Apparently unconcerned

about the availability of vibrators to consumers

beginning in 1899, and even about their use in the

production of orgasm in wemen, for which there

was ample evidence by 1930, the state did not act

against these devices until a small percentage of

them took on anatomical forms, and until they

began to be associated with a new interest in

orgasmic mutuality in heterosexual relationships.

Significantly, Viagra,, which enhances sexual

experience for men but not necessarily for women,

is legal by prescription in all states, including

those with laws against vibrators and dildos. As

an historian and as a citizen, I fail to see what

legitimate purpose is served by institutionalizing

an hypocrisy in which the sale of a standard and

traditional therapeutic device is rendered

unlawful by sexual references in appearance,

packaging or marketing.

Id. at 23-25.

Although Maines’s statements suggest an agenda

inconsistent with an unbiased and complete historical

presentation, the district court nevertheless repeatedly

relied on her factual assertions, usually without any

independent verification. We note several typical

examples:

In downplaying the historical significance of the

Comstock laws, the district court emphasized that

“sexual devices were not the impetus for the so-

called Comstock Acts.” Williams III, 220 F. Supp.

2d at 1286. The only support for this statement

was Maines’s’ declaration statement that

“vibrators and dildoes [sic] were not significant

App. 46

motivations for the passage and enforcement of

the Comstock Act.” R4—84, Ex. 4 at 2. However, we

find in neither Maines’s declaration nor the record

elsewhere any evidence—aside from Maines’s bare

assertion—of the actual motivation behind

passage and enforcement of the Act.

e The record before the district court contained

evidence that, according to records maintained by

the New York Society for the Suppression of Vice,

between 1871 and 1881, some 64,836 “Articles of

immoral use, of rubber, etc.” were seized under the

Comstock Act and other anti-vice laws. See

Anthony Comstock, Traps for the Young 137

(Robert Bremner ed., Harvard University Press

1967) (1884). The district court, however,

dismissed this evidence by quoting Maines’s claim

that these “were almost all contraceptives.”

Williams III, 220 F. Supp. 2d at 1286; R4—84, Ex.

4 at 3. Although our own review of the record

confirms that the articles “of rubber” likely

represented many condoms, our concern is the

district court’s casual dismissal of

contemporaneous documentary evidence in favor

of retrospective, and unsupported,

-characterizations of that evidence. Further,

although Maines cited several authorities for her

assertion, our review of her sources finds no

support for the conclusion that the referenced

articles “were almost all contraceptives.”

15 Heywood Broun & Margaret Leech, Anthony Comstock 92, 153

(1927); Charles G. Trumbull, Anthony Comstock, Fighter (1913);

Anthony Comstock, Traps for the Young 137 (Robert Bremner ed.,

Belknap Press of Harvard Univ. Press 1967) (1884). Because Maines’s

did nct provide a pinpoint citation for the Trumbull book, we did not

review every page of the book, but our review of the relevant portions

of the book did not reveal any support for Maines’s assertion.

App. 47

° The district court’s central holding—its discovery

of a constitutional “right to use sexual devices like

. vibrators, dildos, anal beads, and artificial

vaginas”—was based largely on unsupported

statements from Maines’s declarations. Williams

IIT, 220 F. Supp. 2d at 1296. In divining this right,

the district court concluded “that history and

contemporary practice demonstrate a conscious

avoidance of regulation of [sexual] devices by the

states,” Id. This conclusion was based on the

“emergence and widespread acceptance” of the

electric vibrator, id. at 1283, and “(t]he popularity,

legality, and ease of access to sexual devices like

vibrators and dildos,” id. at 1286. These findings

in turn relied on Maines’s_ declarations,

particularly her assertion that “[vlibrators

remained legal throughout this period, and were

mailable matter under the Comstock laws of

1873—1914.” Jd. What both Maines’s declaration

and the district court’s opinion omit is the fact

that, according to Maines’s own writings

elsewhere, the vibrators available on the market

during this period were general purpose vibrators

marketed for non-sexual uses, such as massaging

the hands, face, back, and neck.’® The fact that

16 Maines, in her writing outside the context of this litigation, notes

that the first evidence of the availability of mass-market vibrators

appears in 1899. Rachel Maines, The Technology of Orgasm:

“Hysteria,” the Vibrator, and Women’s Sexual Satisfaction 100 (1999).

Significantly, she states that most of these early “home vibrators”

were marketed as health and beauty aids, particularly for home

massage. Id. at 19-20. Consistent with this theory are the turn-of-the-

century vibrator advertisements included with Maines’s declaration,

none of which suggest any sexual use for the devices. R3-56, Ex. A at

19-24. Even if, as Maines contends, there was some wink-and-nod

encryption in these advertisements, this hardly supports the district

court’s conclusion that sexual devices qua sexual devices were widely

available and openly marketed during this period. Id.; see also Rachel

Maines, Socially Camouflaged Technologies: The Case of the

Electromagnetic Vibrator, TECH. AND SOC’Y MAGAZINE, June

App. 48

these general purpose vibrators were legal and

mailable is hardly probative of the legality of

sexual devices as sexual devices.

Because of our conclusion supra that the

constitutionality of Alabama’s statute does not hinge on

the enforcement, or lack thereof, of the Comstock laws,

any error by the district court in its incorporation of

Maines’s litigation-motivated and litigation- tailored

assertions was harmless. Nevertheless, the district

court’s truth-seeking duties should have compelled it to

go behind Maines’s assertions and satisfy itself of their

reliability before relying on those assertions in

recognizing a new fundamental constitutional right.’

Moreover, this uncritical reliance on Maines’s

assertions appears to have been typical of a larger

pattern. For example, the district court’s history and

tradition discussion was largely a paraphrased version of

the ACLU’s motion for summary judgment and its factual

support appears to have consisted entirely of the ACLU’s

pleadings and selective appendices of historical

interpretations of sex throughoutAmerican history. Of the

104 supporting footnotes in the district court’s history

1989, at 3. Indeed, Maines further asserts that “[t]he social

camouflage cf the vibrator as a home and professional medical

instrument seems to have remained more or less intact until the end

of the 1920s” and that it was not until the vibrator reemerged in 1960s

and 70s that “it was openly marketed as a sex aid.” Maines, The

Technology of Orgasm, at 20.

Thus, according to Maines’s own book, vibrators have been available to

the general public for only slightly over a century and—contrary to the

district court’s interpretation of Maines’s declarations—explicitly

sexually-oriented vibrators have been widely available and accepted

for only the past four decades, at most.

17 Moreover, in granting summary judgment to the ACLU, the district

court was obligated to view al) evidence and factual inferences in the

light most favorable to Alabama. Nat'l Parks Conservation Ass’n v.

Norton, 324 F.3d 1229, 1236 (11th Cir. 2003).

App. 49

and ,tradition analysis, 99 were citations to these

pleadings and appendices.

ii. The District Court’s Reliance

on Alabama’s “Concessions”

The district court’s rationale for its wholesale

adoption of the ACLU’s evidence appears to have been its

mistaken view that the Alabama Attorney General had

conceded the ACLU’s evidence on the history and

tradition question. The district court, as preface to its

Glucksberg history and tradition analysis, stated that

“the court notes that it is extremely significant, if not

dispositive, that the Attorney General concedes that

‘there is little evidence to show that sexual devices, or

consensual sexual activities in general, have historically

been subject to governmental regulation.” Williams III,

220 F. Supp. 2d. at 1277 (quoting Attorney General’s

Memorandum in Support of Motion for Summary

Judgment, at 16).

This not only misquoted the Attorney General’s

actual language, but mischaracterized it as a

“concession.” In his memorandum supporting his motion

for summary judgment, the Attorney General had

devoted a § section to describing Victorian-era

proscriptions, and enforcement thereof, on sexual devices.

R3-78 at 14-16. The following section began, “Although

there is little additional evidence to show that sexual

devices, or consensual sexual activities in general, have

historically been subject to governmental regulation,

there is also no evidence to show that these activities

have been specially protected under the law.” Id. at 16

(emphasis added). That section went on to mention some

of that “additional evidence,” such as efforts by the states

to restrict sexual devices. Jd. The district court’s omission

of the critical word “additional,” as well as its out-of-

context quotation of a prefatory dependent clause,

App. 50

significantly altered the meaning of a statement that, in

proper context, appears in no way to have been intended

as a concession of one of the most significant and

contested issues in the case.

Similarly, the district court elsewhere stated: “The

Attorney General concedes that ‘there is no genuine

dispute as to the historical chronology set forth by the

plaintiffs’ experts,’ to the effect that there is a ‘history or

tradition of state noninterference in persons sex lives.”

Williams III, 220 F.Supp.2d. at 1276 (quoting Attorney

General’s Memorandum in Support of Motion for

Summary Judgment, at 16).

In fact, the Attorney General conceded only to the

historical chronology set forth by the ACLU’s experts and

the liberalization of attitudes towards sex that this

chronology demonstrated. R3-78 at 12. However,

theAttorney General never conceded a “history or

tradition of state noninterference in persons sex lives.”

Significantly, the Attorney General’s use of that phrase

appeared four sentences prior to the “chronology”

concession and itself was part of a sentence disputing the

ACLU’s version of history and tradition: “In attempting to

demonstrate a ‘history’ or ‘tradition’ of state non-

interference in persons’ sex lives, [the ACLU’s] experts

have proffered a lengthy history of sexuality.” Id. The

district court’s omission of the quotation marks

surrounding “history” and “tradition” particularly

distorted the Attorney General’s meaning.

The district court’s reliance on these “concessions”

appears to have been substantial. In announcing its

holding that the ACLU’s evidence demonstrated a

fundamental right to sexual privacy, the district court

stressed that “[t]he Attorney General has conceded

plaintiffs’ evidence in this regard.” Williams III, 220 F.

Supp. 2d. at 1294; see also id. at 1295 (“Given the

App. 51

breadth, depth, volume, and weight of that evidence, and

the Attorney General’s concession, this court is compelled

to agree [with plaintiffs-appellees].”); id. at 1295-96

(holding that, in light of the ACLU’s evidence “and the

concession to this evidence by the Attorney General, this

court concludes that plaintiffs have met their burden”).

To the contrary, the Attorney General’s pleadings,

while not disputing much of the ACLU’s evidence about

the liberalization of sexual norms, vigorously disputed

both (a) the legal ramifications of that liberalization (e.g.,

that this liberalization, in -itself, satisfied the

fundamental-rights threshold) as well as (b) the

contention that sexual devices had gone virtually

unregulated throughout American history. R3-78 at 12-

20. We conclude, however, that the district court’s

reliance on these putative concessions was, at worst,

harmless error. The issues that the district court treated

as having been conceded pertained to the existence of a

fundamental right to sexual privacy, which, as we

explained supra, was an over-broad framing of the

inquiry in the first place.

II. CONCLUSION

Hunting expeditions that seek trophy game in the

fundamental-rights forest must heed the maxim “look

before you shoot.” Such excursions, if embarked upon

recklessly, endanger the very ecosystem in which such

liberties thrive—our republican democracy. Once elevated

to constitutional status, a right is effectively removed

from the hands of the people and placed into the

guardianship of unelected judges. See Glucksberg, 521

U.S. at 720, 117 S. Ct. at 2267-68. We are particularly

mindful of this fact in the delicate area of morals

legislation. One of the virtues of the democratic process is

that, unlike the judicial process, it need not take matters

to their logical conclusion. If the people of Alabama in

App. 52

time decide that a prohibition on sex toys is misguided, or

ineffective, or just plain silly, they can repeal the law and

be finished with the matter. On the other hand, if we

today craft a new fundamental right by which to

invalidate the law, we would be bound to give that right

full force and effect in all future cases—including, for

example, those involving adult incest, prostitution,

obscenity, and the like.

The dissent eloquently quotes Justice Brandeis in

its opening passages. We find merit in the wisdom of

Justice Felix Frankfurter in his concurring opinion in

Dennis v. United States, 341 U.S. 494, 525, 71 S. Ct. 857,

875, 95 L.Ed. 1137 (1951), when he observed:

Courts are not representative bodies. They are not

designed to be a good reflex of a democratic society....

Their essential quality is detachment, founded on

independence. History teaches that the independence of

the judiciary is jeopardized when courts become

embroiled in the passions of the day and assume primary

responsibility in choosing between competing political,

economic and social pressures.

For the reasons we have explained, we hold that

the district court committed reversible error in

concluding that the Due Process Clause “encompass[es] a

right to use sexual devices like ... vibrators, dildos, anal

beads, and artificial vaginas.” Williams III, 220 F. Supp.

2d. at 1296. Moreover, we reject the ACLU’s request that

we redefine the constitutional right to privacy to cover

the commercial distribution of sex toys. We REVERSE

the district court’s grant of the ACLU’s motion for

summary judgment and REMAND to the district court

for further proceedings consistent with this opinion.

App. 53

BARKETT, Circuit Judge, dissenting:

The majority’s decision rests on the erroneous

foundation that there is no substantive due process right

to adult consensual sexual intimacy in the home and

erroneously assumes that the promotion of public

morality provides a rational basis to criminally burden

such private intimate activity. These premises directly

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

Texas, 539 U.S. 558, 123 S. Ct. 2472, 156 L. Ed. 2d 508

(2003).

This case is not, as the majority's demeaning and

dismissive analysis suggests, about sex or about sexual

devices. It is about the tradition of American citizens

from the inception of our democracy to value the

constitutionally protected right to be left alone in the

privacy of their bedrooms and personal relationships. As

Justice Brandeis stated in the now famous words of his

dissent in Olmstead v. United States, 277 U.S. 438, 48 S.

Ct. 564, 72 L. Ed. 944 (1928), when “[t]he makers of our

Constitution undertook to secure conditions favorable to

the pursuit of happiness ... [t]hey conferred, as against

the government, the right to be let alone—the most

comprehensive of rights and the right most valued by

civilized men.” 277 U.S. at 478, 48 S. Ct. 564 (Brandeis,

J., dissenting) overruled by Berger v. State of New York,

388 U.S. 41, 87 S. Ct. 1873, 18 L. Ed. 2d 1040 (1967);

Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L.

Ed. 2d 576 (1967).

The majority claims that Lawrence, like Bowers v.

_Hardwick, 478 U.S. 186, 106 S. Ct. 2841, 92 L. Ed. 2d 140

(1986), failed to recognize the substantive due process

right of consenting adults to engage in private sexual

conduct. Conceding. that Lawrence must have done

something, the majority acknowledges that Lawrence

“established the unconstitutionality of criminal

App. 54

prohibitions on consensual adult sodomy.” Majority Op.

at 1236. The majority refuses, however, to acknowledge

why the Court in Lawrence held that criminal

prohibitions on consensual sodomy are unconstitutional.

This failure underlies the majority’s flawed conclusion in

this case.

As explained more fully below, Lawrence held that

a state may not criminalize sodomy because of the

existence of the very right to private sexual intimacy that

the majority refuses to acknowledge. Lawrence reiterated

that its prior fundamental rights cases protected

individual choices “concerning the intimacies of [a]

physical relationship.” Lawrence, 123 S. Ct. at 2483

(internal quotation marks and citation omitted). Because

of this precedent, the Lawrence Court overruled Bowers,

concluding that Bowers had “misapprehended the claim

of liberty there presented” as involving a particular

sexual act rather tham the broader right of adult sexual

privacy. Id. at 2478. Instead of heeding the Supreme

Court’s instruction regarding Bowers’ error, the majority

repeats it, ignoring Lawrence’s teachings about how to

correctly frame a liberty interest affecting sexual privacy.

Compounding this error, the majority also ignores

Lawrence’s holding that although history and tradition

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

“ending point” of a substantive due process inquiry. Jd. at

2480 (internal quotation marks and citation omitted). In

' cases solely involving adult consensual sexual privacy,

the Court has never required that there be a long-

standing history of affirmative legal protection of specific

conduct before a right can be recognized under the Due

Process Clause. To the contrary, because of the

fundamental nature of this liberty interest, this right has

been protected by the Court despite historical, legislative

App. 55

restrictions on private sexual conduct.’ Applying the

analytical framework of Lawrence compels the conclusion

that the Due Process Clause protects a right to sexual

privacy that encompasses the use of sexual devices.”

Finally, even under the majority’s own constrained

and erroneous interpretation of Lawrence, we are, at a

bare minimum, obliged to revisit this Court’s previous

conclusion in Williams v. Pryor, 240 F.3d 944 (11th Cir.

2001) (“Williams IT’), that Alabama’s law survives the

most basic level of review, that of rational basis. See 240

F.3d at 949. That decision explicitly depended upon the

finding in Bowers that the promotion of public morality

provided a rational basis to restrict ‘private sexual

activity. Id. While the majority recognizes that Bowers

has been overruled, it inexplicably fails to offer any

explanation whatsoever for why public morality provides

a rational basis to criminalize the private sexual activity

in this case, when it was clearly not found to be a

legitimate state interest in Lawrence.

For all of these reasons, which are amplified

below, I dissent.

1 See Roe v. Wade, 410 U.S. 113, 139, 93 S. Ct. 705, 35 L. Ed. 2d 147

(1973); see also Carey v. Population Services Int'l, 431 U.S. 678, 97 S.

Ct. 2010, 52 L. Ed. 2d 675 (1977); Eisenstadt v. Baird, 405 U.S. 438, 92

S. Ct. 1029, 31 L. Ed. 2d 349 (1972); Griswold v. Connecticut, 381 U.S.

479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965).

2 As the majority acknowledges, there is no constitutional distinction

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

sex toys. See Majority Op. at 1242 (“For purposes of constitutional

analysis, restrictions on the ability to purchase an item are

tantamount to restrictions on the use of that item.”). Accordingly,

Alabama cannot be permitted to accomplish indirectly what it is not

constitutionally permitted to do directly.

See ee ee ee

App. 56

I. Lawrence Recognized a Substantive Due Process

Right to Sexual Privacy.®

There is no question that Lawrence was

decided on substantive due process grounds. The doctrine

of substantive due process requires, first, that every law

must address in a relevant way only a legitimate

governmental purpose. In other words, no law may be

arbitrary and capricious but rather must address a

permissible state interest in a way that is rationally

related to that interest. As a consequence, any law

challenged as violating a substantive due process right

must survive rational-basis review.

However, the Supreme Court has found that some

decisions are so fundamental and central to human

liberty that they are protected as part of a right to

privacy under the Due Process Clause,‘ and the

government may constitutionally restrict these decisions

only if it has more than an ordinary run-of-the-mill

governmental purpose.® In such cases, the Court subjects

3 I have also developed these arguments in my dissent to the denial of

rehearing en banc in Lofton v. Sec. of Dept. of Children and Family

Servs., 358 F.3d 804, (11th Cir. 2004) (Barkett, J., dissenting).

4 The Supreme Court has explained that this right includes the ability

of adults to make decisions relating to the right to abortion, Roe, 410

U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147; contraception, Eisenstadt,

405 U.S. 438, 92 S. Ct. 1029, 31 L. Ed. 2d 349 and Griswold, 381 U.S.

479, 85 S. Ct. 1678, 14 L. Ed. 2d 510; marriage, Loving v. Virginia, 388

U.S. 1, 87S. Ct. 1817, 18 L. Ed. 2d 1010 (1967); family relationships,

Prince v. Massachusetts, 321 U.S. 158, 64 S. Ct. 438, 88 L. Ed. 645

(1944); procreation, Skinner v. Oklahoma, 316 U.S. 535, 62 S. Ct.

1110, 86 L. Ed. 1655 (1942); and child rearing and education, Pierce v.

Society of Sisters, 268 U.S. 510, 45 S. Ct. 571, 69 L. Ed. 1070 (1925)

and Meyer v. Nebraska, 262 U.S. 390, 43 S. Ct. 625, 67 L. Ed. 1042

(1923).

5 The majority acknowledges that at issue in this case is “the Due

Process Clause’s substantive component, which courts have long

recognized as providing ‘heightened protection against government

App. 57

these governmental restrictions to a heightened scrutiny,

requiring that legislation be “narrowly drawn” to achieve

a “compelling state interest.”° Included within this right

to privacy is the ability to make decisions about intimate

sexual matters.’

In invalidating the sodomy statute at issue in

Lawrence, the Court reaffirmed this right to sexual

privacy, finding that private homosexual conduct is

likewise encompassed within it. From its opening

paragraph, the Court explained the importance of the

liberty at issue here:

Liberty protects the person from

unwarranted government 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 ... The instant case involves

interference with certain fundamental rights and liberty interests.”

Majority Op. at 1235 (quoting Troxel v. Granville, 530 U.S. 57, 65, 120

S. Ct. 2054, 2060, 147 L.Ed.2d 49 (2000)).

6 Roe, 410 U.S. at 155, 93 S. Ct. 705 (“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

such legislation “must be narrowly drawn”) (internal quotation marks

and citation omitted). The only sexual privacy case where the Court

did not use this language was in Planned Parenthood of Southeastern

Pennsylvania v. Casey, 505 U.S. 833, 112 S. Ct. 2791, 120 L.Ed.2d 674

(1992), where it analyzed civil burdens on a woman’s right to abortion,

not an outright criminal ban. The Court found that a state regulation

that had “the purpose or effect of placing a substantial obstacle in the

path of a woman seeking an abortion of a nonviable fetus” would place

an “undue burden” on the right to abortion and therefore be

unconstitutional. Casey, 505 U.S. at 877, 112 S. Ct. 2791.

7 See, e.g., Carey, 431 U.S. at 685, 97 S. Ct. 2010 and Griswold, 381

U.S. at 486, 85 S. Ct. 1678 (right to use contraception); Casey, 505

USS. at 869, 112 S. Ct. 2791 (right to seek out an abortion).

App. 58

liberty of the person both in its spatial and more

transcendent dimensions.

Lawrence, 123 S. Ct. at 2475. The Lawrence Court: noted

in its opinion that it had granted certiorari specifically to

consider “[w]hether Petitioners’ criminal convictions for

adult consensual sexual intimacy in the home violate their

vital interests in liberty and privacy protected by the Due

Process Clause of the Fourteenth Amendment?” Id. at

2476 (internal quotation marks and citation omitted)

(emphasis added). While the Court also granted certiorari

to address whether Texas’s sodomy statute violated the

Equal Protection Clause,’ the Court explicitly decided to

rest its holding on a substantive due process analysis

because it found that if a sodomy law “remain[ed]

unexamined for its substantive validity, its stigma might

remain even if it were not enforceable as drawn for equal

protection reasons.” Jd. at 2482. The Court stated that

the “case should be resolved by determining whether the

petitioners were free as adults to engage in the private

[sexual] conduct in the exercise of their liberty under the

Due Process Clause of the Fourteenth Amendment.” Jd.

at 2476.

8 Unlike the sodomy statute at issue in Lawrence, which only applied

to homosexual sexual conduct, the Georgia statute in Bowers

criminalized acts of sodomy engaged in by both heterosexuals and

homosexuals. See Bowers, 478 U.S. at 188 n. 1, 106 S. Ct. 2841. The

Lawrence Court indicated that the sodomy statute could have been

invalidated using an equal protection analysis. 123 S. Ct. at 2482.

Indeed, this was the conclusion of Justice O’Connor in her

concurrence. Id. at 2484—88 (O’Connor, J., concurring).

9 The Lawrence majority went on to state that “[w)]hen homosexual

conduct is made criminal by the law of the State, that declaration in

and of itself is an invitation to subject homosexual persons to

discrimination both in the public and in the private spheres.” 123 S.

Ct. at 2482.

App. 59

In resolving this issue of whether the petitioners

were “free as adults” to engage in “private [sexual]

conduct,” the Court retraced its substantive due process

jurisprudence by discussing the fundamental rights cases

of Griswold, Eisenstadt, Roe, and Carey and emphasized

the breadth of their holdings as involving private

decisions regarding intimate physical relationships. Jd. at

2476-77, 2483. Beginning with Griswold, the Lawrence

Court found that its prior decisions confirmed ‘that the

protection of liberty under the Due Process Clause has a

substantive dimension of fundamental significance in

defining the rights of the person” and “that the right to

make certain decisions regarding sexual conduct extends

beyond the marital relationship.” Jd. at 2477

(summarizing Griswold, Eisenstadt, Roe, and Carey).

-Because of the existence of this right to make

private decisions regarding sexual conduct, the Lawrence

Court was compelled to overrule the anomaly of Bowers,

which had failed to acknowledge this right in permitting

Georgia to criminalize sodomy. See Bowers, 478 U.S. at

194—96, 106 S. Ct. 2841. Lawrence found that at the time

of the Bowers decision the Court’s prior holdings had

already made “abundantly clear” that individuals have a

substantive due process right to make decisions

“concerning the intimacies of their physical

relationship[s], even when not intended to produce

offspring.” 123 S. Ct. at 2483 (quoting Bowers, 478 U.S. at

216, 106 S. Ct. 2841 (Stevens, J., dissenting)). The

- Lawrence Court therefore concluded that “Bowers was not

10 Although Eisenstadt was decided on equal protection grounds, the

Court in Lawrence noted that Eisenstadt “went on to state the

fundamental proposition that the law impaired the exercise of ...

personal rights.” 123 S. Ct. at 2477. Further, while Lawrence cited

Romer v. Evans, 517 U.S. 620, 116 S. Ct. 1620, 134 L. Ed. 2d 855

(1996), as an example of how Bowers had been cast into doubt, the

Court immediately declined to decide the case under Romer’s equal

protection rationale, instead insisting that the decision be resolved on

substantive due process grounds. Id. at 2482.

App. 60

correct when it was decided.” Id. at 2484 (emphasis

added).

Given these statements in Lawrence, I fail to

understand the majority’s reliance on a footnote from the

‘Supreme Court’s 1977 decision in Carey, where the Court

indicated in dicta that it had not “definitively answered”

the extent to which the Due Process Clause protects the

private sexual conduct of consenting adults. Majority Op.

at 1236, 1237 (citing Carey, 431 U.S. at 688 n. 5, 97S. Ct.

2010).'! Obviously, Carey does not resolve in any way the

meaning of a case that comes twenty-six years later. Nor

does it prevent Lawrence from answering the very

question posed in Carey’s footnote. Lawrence does

precisely this in affirming the right of consenting adults

to make private sexual decisions. Moreover, this could not

have been a new right. Carey’s footnote notwithstanding,

the Lawrence Court determined that its pre-Bowers

decisions had already recognized a right to sexual:

privacy. This is the only way to make sense of the

Lawrence Court’s statements that Bowers was “not

correct when it was decided,” and that its decisions before

Bowers had already made “abundantly clear” that adults

have a right to make decisions “concerning the intimacies

of their physical relationship[s].” Lawrence, 123 S. Ct. at

2483-84 (internal quotation marks and citation omitted).

In light of the Court’s conclusion that its prior

decisions in Griswold, Eisenstadt, Carey, and Roe had

already made “abundantly clear” that adults have a right

to make intimate decisions about their sexual

relationships, the majority cannot seriously maintain

that this dissent “never identifies” a. precedential source

11 In Carey, the Court wrote that it had “not definitively answered the

difficult question whether and to what extent the Constitution

prohibits state statutes regulating (private consensual sexual)

behavior among adults.” 431 U.S. at 688 n. 5, 97 S. Ct. 2010 (internal

quotation marks and citation omitted).

App. 61

of the right to sexual privacy. Majority Op. at 1237. The

majority’s argument that this dissent fails to identify a

textual source of the right to sexual privacy is equally

untenable. Jd. As noted below, the Lawrence Court held

that the petitioners’ “right to liberty under the Due

Process Clause gives them the full right to engage in their

[private sexual] conduct without intervention of the

government.” 123 S. Ct. at 2484 (emphasis added). The

Court could not have been more clear that the petitioners’

right to engage in private sexual conduct has its textual

locus in the Due Process Clause.

Bowers erred because it “misapprehended the

claim of liberty there presented” when it framed the issue

before it as whether the Constitution protects “a

fundamental right to engage in consensual sodomy”:

To say that the issue in Bowers was simply the

right to engage in certain sexual conduct demeans

the claim the individual put forward, just as it

would demean a married couple were it to be said

marriage is simply about the right to have sexual

intercourse. The laws involved in Bowers and here

are, to be sure, statutes that purport to do no more

than prohibit a particular sexual act. Their

penalties and purposes, though, have more far-

reaching consequences, touching upon the most

private human conduct, sexual behavior, and in

the most private of places, the home.

Lawrence, 123 S. Ct. at 2478 (emphasis added). In other

words, Bowers departed from the proper inquiry by

focusing on a particular sexual act instead of upon the

right to sexual privacy, which encompasses acts of adult

consensual sexual intimacy. As I explain in the next

section, the majority repeats the very mistake made in

Bowers by focusing on whether there is a right to engage

in a particular sexual act—here the use of sexual

App. 62

devices—rather than asking whether the conduct

burdened by Alabama’s_ statute involves private

consensual sexual intimacy. As Lawrence demonstrates,

sexual intimacy is inevitably demeaned, and its

importance to the private life of the individual trivialized,

when it is reduced to a particular sexual or physical act.

As the Lawrence Court explained, the proper

inquiry is simply whether adults have a right to engage

in “private [sexual] conduct in the exercise of their liberty

under the Due Process Clause of the Fourteenth

Amendment.” Id. at 2476. In answering this question,

Lawrence expressly adopted the reasoning of Justice

Stevens’ dissent in Bowers:

(I]Individual decisions by married persons,

concerning the intimacies of their physical

relationship, even when not intended to produce

offspring, are a form of “liberty” protected by the

Due Process Clause of the Fourteenth

Amendment. Moreover, this protection extends to

intimate choices by unmarried as well as married

persons.

Id. at 2483 (quoting Bowers, 478 U.S. at 216, 106 S. Ct.

2841 (Stevens, J., dissenting)) (emphasis added). Because

the private conduct at issue in Lawrence also concerned

the “intimacies” of a “physical relationship,” the Court

held that the petitioners’ “right to liberty under the Due

Process Clause gives them the full right to engage in

their conduct without intervention of the government.””

12 The majority argues that acknowledging a right of adult sexual

privacy would lead to the invalidation of laws banning, among other

things, prostitution, incest, the use of hallucinogenic substances, child

pornography, and bestiality. See Majority Op. at 1239, 1240 n. 12.

Here again, the majority fails to credit Lawrence, which clearly stated,

for purposes of guiding future courts, what the right of consensual

adult sexual privacy is and is not about:

App. 63

Id. at 2484. The Lawrence Court's answer to its question

of whether adults have a right to engage in private sexual

conduct is clearly a binding holding. I know of no

principle of interpretation that supports, in any way, the

‘majority's characterization as “scattered dicta” the

Supreme Court’s direct response to the question it

granted certiorari to answer and that it found was

necessary to resolve before disposing of the case. See id.

at 2476 (“We conclude the case should be resolved by

determining whether the petitioners were free as adults

to engage in the private [sexual] conduct in the exercise of

their liberty under the Due Process Clause of the

Fourteenth Amendment.”).

Like both Bowers and Lawrence, this case involves

“the most private human conduct, sexual behavior,”

occurring “in. the most private of places, the home.”

Lawrence, 123 S. Ct. at 2478. Alabama’s statute, by

prohibiting the sale of sexual devices, thus affects the

same “vital” liberty interest in adult consensual sexual

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 easily be refused. It does not involve public

conduct or prostitution. It does not involve whether the government

must give formal recognition to any relationship that homosexual

persons seek to enter. The case does involve two adults who, with full

and mutual consent from each other, engaged in sexual practices

common to a homosexual lifestyle.

123 S. Ct. at 2484 (emphasis added). As the Court explained, as a

“general rule,” the state or a court should not attempt “to define the

meaning of [a) relationship or to set its boundaries absent injury to a

person or abuse of an institution the law protects.” Id. at 2478

(emphasis added). For example, in the case of prostitution, there may

be a threat that individuals will be harmed, while adult incest poses a

threat to the institution of the family and involves a “relationship| ]

where consent might not easily be refused.” Id. at 2484.

13 Majority Op. at 1236.

App. 64

intimacy threatened by the sodomy statutes in Bowers

and Lawrence and should likewise be invalidated.‘ I

believe the majority errs in its strained effort to avoid the

fair import of a Supreme Court precedent.

IT. The Majority Ignores ‘Lawrence’s Teaching

Regarding the Proper Framing of a Liberty Interest

and the Appropriate Use of History.

Because the majority erroneously concludes that

Lawrence did not reaffirm a substantive due process right

to sexual privacy, it attempts to conduct a Glucksberg

analysis with respect to whether te recognize a “hitherto

unarticulated fundamental right.” Majority Op. at 1234,

1240. In doing so, the majority not only errs by

proceeding as if Lawrence and its prescriptions for .

conducting a fundamental rights analysis do not exist,

but also errs by inventing new criteria that are not

supported by Glucksberg, Flores, or any other case law.”

Regardless of the majority’s belief that Lawrence

did not recognize a substantive due process right, it

cannot then simply conduct an analysis that ignores

Lawrence’s clear statements about the erroneous

analytical framework of Bowers and repeat that

methodology here. Even if Lawrence were not itself a

fundamental rights decision, it remains the case that

Bowers conducted a fundamental rights analysis that

14 As the majority acknowledges, the Supreme Court has held that

the “same test must be applied to state regulations that burden an

individual’s right ... by substantially limiting access to the means of

effectuating that decision as is applied to state statutes that prohibit

the decision entirely.” Majority Op. at 1242 (quoting Carey, 431 U.S.

at 688, 97 S. Ct. 2010).

15 See Washington v. Glucksberg, 521 U.S. 702, 117 S. Ct. 2258, 138

L.Ed.2d 772 (1997); Reno v. Flores, 507 U.S. 292, 113 S. Ct. 1439, 123

L. Ed. 2d 1 (1993).

App. 65

Lawrence found to be- deeply flawed. Lawrence’s

repudiation of Bowers’ substantive due process approach

cannot be dismissed as dicta, since overruling Bowers was

necessary to the disposition of the decision in Lawrence.

Lawrence, 123 S. Ct. at 2476 (“[Wle deem it necessary to

reconsider the Court’s holding in Bowers.”). Therefore,

Lawrence, coming after Glucksberg, must be read as

providing binding guidance about how to properly

analyze a liberty interest affecting sexual privacy.

A. The Proper Framing of a Liberty Interest

Just as the Bowers Court framed the question

before it as “whether the Federal Constitution confers a

fundamental right upon homosexuals to engage in

sodomy,” Bowers, 478 U.S. at 190, 106 S. Ct. 2841, the

majority also mistakenly reduces the asserted liberty

interest here to a particular sexual act, asking not

whether consenting adults have a right to sexual privacy,

but whether an Alabama citizen has the right to use sex

toys.’® See, e.g., Majority Op. at 1241. The Lawrence

Court explained that the narrow framing of the question

in Bowers “demean[ed] the claim” set forth and

16 The majority erroneously insists that “the scope of the liberty

interest at stake here must be defined in reference to the scope of the

Alabama statute,” Majority Op. at 1241, even though Lawrence

recognized that the liberty interest threatened by sodomy statutes

could not be defined by the particular conduct those statutes

prohibited. Selectively quoting from the district court’s opinion, the

majority repeatedly insists that the right at issue here is the “right to

use sexual devices like ... vibrators, dildos, anal beads, and artificial

vaginas.” Majority Op. at 1244, 1247, 1250. In contrast to the majority,

the district court properly framed the question in terms of the broader

right to sexual privacy. The district court framed the inquiry as

follows: “Does th[e}] fundamental right of sexual privacy between

married and unmarried adults in private, consensual, sexual

relationships encompass a right to use sexual devices like the

vibrators, dildos, anal beads, and artificial vaginas distributed by the

vendor plaintiffs in this action?” Williams v. Pryor, 220 F. Supp. 2d

1257, 1296 (N.D. Ala. 2002) (“Williams III”).

App. 66

“disclose[d] the Court’s own failure to appreciate the

extent of the liberty at stake” in that case. 123 S. Ct. at

2478 (Bowers “misapprehended the claim of liberty there

presented to it”). The Lawrence Court further explained

that “[t]he laws involved in Bowers and here are, to be

sure, statutes that purport to do no more than prohibit a

particular sexual act. Their penalties and purposes,

though, have more far-reaching consequences, touching

upon the most private human conduct, sexual behavior,

and in the most private of places, the home.” Jd. at 2478

(emphasis added). In exactly the same manner, the

majority’s characterization of the right at issue here as

involving the right to use certain sexual devices severely

discounts the extent of the liberty at stake in this case.

Alabama's law not only restricts the sale of certain sexual

devices, but, like the statute in Lawrence, burdens

private adult sexual activity within the home.”

B. The Use of History and Tradition

In addition to repeating the analytical mistake of

Bowers in narrowly framing the right at issue, the

majority also errs in its use of history. The majority

claims that under Glucksberg, the district court was

wrong to rely on a history and tradition of state non-

interference with the private sexual lives of adults as a

basis to recognize a right to sexual privacy.”* According to

the majority, Glucksberg requires that there be a long-

17 See Majority Op. at 1242 (“For purposes of constitutional! analysis,

restrictions on the ability to purchase an item are tantamount to

restrictions on the use of that item.”).

18 The district court found that “history and contemporary practice

demonstrate a conscious avoidance of regulation of [sexual] devices by

the states.” Williams III, 220 F. Supp. 2d at 1296. The majority

dismisses this analysis. See Majority Op. at 1242 (“[RJather than look

for a history and tradition of protection of the asserted right, the

district court asked whether there was a history and tradition of state

non-interference with the right.”).

App. 67

standing history of affirmative legal protection of specific

conduct before a right can be recognized under the Due

Process Clause.”

Contrary to the majoritys claim, neither

Glucksberg nor any other relevant Supreme Court

precedent supports the requirement that there must be a

history of affirmative legislative protection before a right

can be judicially protected. The majority simply invents

this requirement, effectively redefining the doctrine of

substantive due process to protect only those rights that

are already explicitly protected by law. Such a

requirement ignores not only Lawrence but also a

complete body of Supreme Court jurisprudence. Had the

Supreme Court required affirmative governmental

protection of an asserted liberty interest, all of the

Court’s privacy cases would have been decided

differently. For instance, there was no lengthy tradition

of protecting abortion and the use of contraceptives, yet

both were found to be protected by a right to privacy

under the Due Process Clause.” In its analysis, the trial

court here correctly considered the history of non-

interference by government. Its analysis was expressly

validated by Lawrence, in which there was no history of

affirmatively protecting the right to engage in consensual

sodomy. In overruling Bowers, the Lawrence Court noted

19 Majority Op. at 1244 (noting that the district court’s analysis was

“not based on any evidence of a history and tradition of affirmative

protection of this mght [to use sexual devices]”).

20 In Roe, for instance, the Court’s historical analysis of Anglo—

American statutory and common law served to provide evidence of the

relatively recent (late nineteenth-century) vintage of state restrictions

on abortion, not to demonstrate a tradition of affirmative protection of

the right to an abortion. 410 U.S. at 132-41, 93 S. Ct. 705. Despite the

lack of a history of protecting the right to abortion, the Roe Court

nevertheless held that the “right of privacy ... is broad enough to

encompass a woman’s decision whether or not to terminate her

pregnancy.” Id. at 152-56, 93 S. Ct. 705.

ES a ee a es Se ee

roeah Sqmmeciaint> abv .< s: ‘ndimieiebiiion woot stot aielaiemneens Wes

App. 68

with approval Justice Powell’s observation in Bowers that

“(t]he history of nonenforcement [of sodomy laws) suggests

the moribund character today of laws criminalizing this

type of private, consensual conduct.” 123 S. Ct. at 2481

(internal quotation marks and citation omitted)

(emphasis added). Therefore, the majority is plainly

incorrect that there must be a history and tradition of

laws protecting the right to use sex toys.”"

Moreover, while history and tradition can be

important factors, they are not the only relevant

considerations in a substantive due process inquiry

related to sexual privacy. See id. at 2480-81. As the

Lawrence Court emphasized, “fhjistory and tradition are

the starting point but not in all cases the ending point of

the substantive due process inquiry.” Jd. at 2480 (internal

quotation marks and citation omitted). Furthermore, like

the district court in this case, Lawrence looked to modern

trends and practices. The Lawrence Court wrote:

[W]e think that our laws and traditions in the past

half century are of most relevance here. These

references show an emerging awareness that

liberty gives substantial protection to adult

persons in deciding how to conduct their private

lives in matters pertaining to sex.

Id. (emphasis added). Given this unequivocal statement,

the’ majority cannot legitimately criticize the district

court for its attention to “contemporary practice and

attitudes with respect to sexual conduct and sexual

devices.” Majority Op. at 1242. In light of all relevant

Supreme Court precedents, the trial court—not the

majority—strikes the proper balance between a concern

21 The majority also ciaims that the district court should have limited

iis historical analysis to legislation invo!ving the use of sexual devices.

be proposal for such an unjustifiably narrow inquiry flows from the

majority’s error in framing the nght at issue too narrowly.

App. 69

with history and contemporary practice, and articulates a

careful and correct description of the asserted liberty

interest.”

II. Under Lawrence, “Public Morality” Cannot Be

Deemed a Legitimate Governmental Purpose for

Criminalizing Private Sexual Activity.

The majority states that Lawrence held that

sodomy laws fail rational-basis review.”* However, the

majority neglects to address whether Alabama’s statute

has a rational basis even though Alabama relies upon the

same justification for criminalizing private sexual activity

rejected by Lawrence—public morality. In Lawrence,

Texas had explicitly relied upon public morality as a

rational basis for its sodomy law.% Lawrence summarily

rejected Texas’s argument, holding that the sodomy law

“further[ed] no legitimate state interest which can justify

22 Williams III, 220 F. Supp. 2d at 1259, 1296 -(“[P)laintiffs’ evidence

establishes that there exists a constitutionally inherent right to sexual

privacy that firmly encompasses state noninterference with private,

adult, consensual sexual relationships” and that this right, “even in its

narrowest form, protects plaintiffs’ use of sexual devices like those

targeted” by Alabama’s law).

23 Majority Op. at 1236 (noting that Lawrence “ultimately applied

rational-basis review” to strike down Texas’s sodomy statute).

24 Respondent’s Brief in Lawrence v. Texas, 2003 WL 470184 at *48

(U.S. Feb. 7, 2003) (“The prohibition of homosexual conduct in [Texas’

sodomy statute] represents the reasoned judgment of the Texas

Legislature that such conduct is immoral and should be

deterred....{[Llong-established principles of federalism dictate that the

Court defer to the Texas Legislature’s judgment and to the collective

good sense of the people of the State of Texas, in their effort to enforce

public morality and promote family values through the promulgation

of penal statutes such as [the sodomy statute].”) (internal footnote

omitted) (emphasis added); see also Transcript of Oral Argument in

Lawrence v. Texas, 2003 WL 1702534 at *38 (U.S. March 26, 2003)

(state’s counsel arguing that sodomy law was justified because “Texas

has the right to set moral standards and can set bright line moral

standards for its people.”).

App. 70

its intrusion into the personal and private ‘life of the

individual.” 123 S. Ct. at 2484 (emphasis added). In

Williams II, this Court previously upheld Alabama’s law

on rational basis grounds, relying on the now defunct

Bowers to conclude that public morality provides a

legitimate state interest. 240 F.3d at 949-50 (the

“crafting and safeguarding of public morality has long

been an established part of the States’ plenary police

power to legislate and indisputably is a legitimate

government interest under rational basis scrutiny”).

Obviously, now that Bowers has been overruled, this

proposition is no longer good law and we must,

accordingly, revisit our holding in Williams II.” Yet

despite the Lawrence Court’s rejection of public morality

as a legitimate state interest that can justify

criminalizing private consensual sexual conduct, the

majority, although acknowledging that the district court

will have to do'so, never once addresses how our holding

in Williams II can remain good law. Justice Scalia, in his

Lawrence dissent, specifically noted that the principles

we relied upon in our decision in Williams II have been

“discarded” by Lawrence:

It seems to me that the “societal reliance” on the

principles confirmed in Bowers and discarded

today has been overwhelming. Countless judicial

decisions and legislative enactments have relied

25 The majority states that “[t]he only question on this appeal is

whether the [Alabama] statute, as applied to the involved users and

vendors, violates any fundamental right protected under the

Constitution.” Majority Op. at 1234. Appellants, however, claim that

Alabama’s statute violates the Due Process Clause, which necessarily

includes a claim that the statute fails rational-basis review. On

remand, the district court must consider whether our holding in

Williams II that Alabama’s law has a rational basis remains good law

now that Bowers has been overruled. See, e.g., Venn v. St. Paul Fire &

Marine Ins. Co., 99 F.3d 1058, 1063 (11th Cir.1996) (noting that the

“law of the case ... does not apply to bar reconsideration of an issue

when ... controlling authority has since made a contrary decision of

law applicable to that issue”).

App. 71

on the ancient proposition that a governing

majority’s belief that certain sexual behavior is

“immoral and unacceptable” constitutes a rational

basis for regulation. See, e.g., Williams v. Pryor,

240 F.3d 944, 949 (C.A.11 2001) (citing Bowers in

upholding Alabama’s prohibition on the sale of sex

toys on the ground that “[t]he crafting and

safeguarding of public morality ... indisputably is

a legitimate government interest under rational

basis scrutiny”).

123 S. Ct. at 2490 (Scalia, J., dissenting) (emphasis

added).

Whether Alabama’s legislature believes that the

use of sex toys may be improper or immoral, the Supreme

Court has explained that “[t]hese considerations do not

answer the question before us, however. The issue is

whether the majority may use the power of the State to

enforce these views on the whole society through

operation of the criminal law. Our obligation is to define

the liberty of all, not to mandate our own moral code.” Jd.

at 2480 (discussing traditional moral views disapproving

of homosexuality) (internal quotation marks and citation

omitted).

IV. Conclusion

“ For all the reasons explicated above, Alabama’s

statute should be invalidated because it violates a

substantive due process right of adults to engage in

private consensual sexual activity and because the state’s

reliance on public morality fails to _provide even a rational

basis for its law. Ignoring Lawrence, the majority turns a

reluctance to expand substantive due process into a

stubborn unwillingness to consider relevant Supreme

Court authority. I dissent.

ee

App. 72

Supreme Court of the United States

Sherri WILLIAMS, et al., petitioners,

v.

Troy KING, Attorney General of Alabama.

No. 04-849.

Feb. 22, 2005

Petition for writ of certiorari to the United States Court

of Appeals for the Eleventh Circuit denied.

App. 73

Sherri WILLIAMS, et al., Plaintiffs,

v.

Troy KING, in his official capacity as the Attorney

General of Alabama, Defendant.'

No. CV 98-S-1938-NE.

United States District Court,

N.D. Alabama,

Northeastern Division.

March 15, 2006.

Amy L. Herring, Amy L Herring, PC, Michael L.

Fees, Fees & Burgess PC, Huntsville, AL, Mark J.

Lopez, American Civil Liberties Union

Foundation, New York, NY, for Plaintiffs.

Charles B. Campbell, Scott L. Rouse, William H.

Pryor, Jr, Office of the Attorney General, Alabama State

House, Courtney W. Tarver, Alabama Department of

Mental Health & Mental Retardation, Legal Division, '

Montgomery, AL, for Defendant.

CORRECTED MEMORANDUM OPINION

SMITH, District Judge.

This opinion marks the third occasion on which

this court has been required to address substantive due

process challenges to an Alabama statute that

criminalizes the commercial distribution of “any device

designed or marketed as useful primarily for the

1 Troy King, in his official capacity as Attorney Genera! for the State

of Alabama, was substituted for the previous occupant of that posttion

pursuant to Federal Rule of Civil Procedure 25(d)(1).

App. 74

stimulation of human genital organs.”* See Williams v.

Pryor, 41 F. Supp. 2d 1257 (N.D. Ala. 1999) (“Williams

I”), rev'd, 240 F.3d 944 (11th Cir. 2001) (“Williams II”);

see also Williams v. Pryor, 220 F. Supp. 2d 1257 (N.D.

Ala. 2002) (“Williams III”), rev’d, 378 F.3d 1232 (11th Cir.

2004) (“Williams IV”). As in prior opinions, this court will

employ the term “sexual devices” as a_ shorthand

replacement for the cumbersome statutory phrase “any

device designed or marketed as useful primarily for the

stimulation of human genital organs.”

The plaintiffs are either vendors or users of sexual

devices. Their complaint asserts that enforcement of the

subject statute will impose an undue burden upon their

. “fundamental rights of privacy and personal autonomy”

in violation of the Fourteenth Amendment’s Due Process

2 Ala. Code § 13A~12-200.2(a)(1) (1975) (Supp. 2005) provides in

relevant part:

’ 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 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) [emphasis supplied].

App. 75

Clause.* Alternatively, plaintiffs allege that there is no

rational relationship between a wholesale ban on the sale

of all sexual devices and a proper legislative purpose.

PART ONE

Summary of Facts

The pertinent factual findings are based upon a

stipulated evidentiary record that was spread at length in

both of this court’s previous opinions.* Those findings

establish that sexual devices have many beneficial

medical and psychological therapeutic uses that are

recognized by health-care professionals ani the federal

Food and Drug Administration,® including “frequent

prescription in marital and non-marital sexual or

relationship counseling—often as a necessary component

for successful therapy.”

PART TWO

Prefatory Issues

The Supreme Court jurisprudence that applies to

the issues of this case is extraordinarily complex and

subtle. It defies easy summation. There simply is no easy

grouping of cases that comfortably conveys a consistent

3 See, e.g., Williams I, 41 F. Supp. 2d at 1274 (“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.”) (internal

marks and footnote omitted).

4 See id. at 1261~73; Williams ITI, 220 F. Supp. 2d at 1261 passim.

5 See 21 C.F.R. §§ 884.5940, 884.5960.

6 6. Williams II, 240 F.3d at 947.

— a -— quien. mee ogee @ + om oe

App. 76

concept of either the constitutional basis for or content of

plaintiffs’ asserted “rights of privacy and personal

autonomy.” Rather, the doctrinal underpinnings of those

allegedly “fundamental rights” have been cobbled

together from a diverse collection of cases, resulting in a

rickety structure. Moreover, debate on the core concepts

is far from being closed, either within the Supreme Court

or American society. Therefore, in order to see more

clearly how this case should now, on the third attempt, be

decided, it may be helpful to trace- from whence it has

come. As Oliver Wendell Holmes, Jr., remarked, the

“rational study of law is still to a large extent the study of

history” because, without resort to the past, “we cannot

know the precise scope of rules which it is our business to

know” when resolving contemporary controversies.’ A

backward look at the evolution of particular principles

and, as here, their application in a specific case, “is a part

of the rational study, because it is the first step toward an

enlightened scepticism, that is, toward a deliberate

reconsideration of the worth of those rules.” Such

exercises must be undertaken with caution, however,

because clarity of hindsight does not ensure an equally

acute vision of the future.? Holmes’s. description of the

evolution of common law actions in tort describes

precisely, by way of analogy, the present predicament:

7 Oliver Wendell Holmes, Jr., The Path of the Law, 10 Harv. L. Rev.

457, 469 (1897).

8 Id.

9 Cf. id. at 466 (“[T]he logical method and form flatter that longing for

certainty and repose which is in every human mind. But certainty

generally is illusion, and repose is not the destiny of man. Behind the

logical form lies a judgment as to the relative worth and importance of

competing legislative grounds, often an inarticulate and unconscious

judgment, it is true, and yet the very root and nerve of the whole

proceeding.”). See also id. at 474 (“We must beware of the pitfall of

antiquarianism, and must remember that for our. purposes our only

interest in the past is for the light it throws upon the present.”).

App. 77

The law did not begin with a theory. It has never

worked one out. The point from which it started and that

at which ... it has arrived, are on different planes. In the

progress from one to the other, it is to be expected that.its

course should not be straight and its direction not always

visible. All that can be done is to point out a tendency,

and to justify it.”

A. Fundamental Rights and Liberties

The definition of those rights and liberties deemed

to be so important that they are characterized as

“fundamental”—and, therefore, beyond the power of

popularly elected legislative assemblies to infringe,”

except in only the most compelling or exigent

circumstances*—begins with the first ten amendments to

10 O.W. Holmes, Jr., The Common Law 77-78 (1881). Cf. O.W.

Holmes, Jr., Codes, and the Arrangement of the Law, 5 Am. L. Rev. 1

(1870) (“It is the merit of the common law that it decides the case first

and determines the principle afterwards.”).

11 See Washington v. Glucksberg, 521 U.S. 702, 720, 117 S. Ct. 2258,

138 L.Ed.2d 772 (1997) (“By extending constitutional protection to an

asserted nmght 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, lest the liberty protected by the Due

Process Clause be subtly transformed into the policy preferences of the

Members of this Court.”) (citations and internal quotation marks

omitted).

12 Regarding the “exigent circumstances” that may justify deviation

from Constitutional protection of individual rights, compare

Korematsu v. United States, 323 U.S. 214, 216, 65 S. Ct. 193, 89 L. Ed.

194 (1944) (addressing the infamous internment of American citizens

of Japanese ancestry in concentration camps during the Second World

War, and stating that “all legal restrictions which curtail the civil

rights of a single racial group are immediately suspect. This is not to

say that all such restrictions are unconstitutional. It is to say that

courts must subject them to the most rigid scrutiny. Pressing public

necessity may sometimes justify the existence of such restrictions;

racial antagonism never can.”) (emphasis supplied), with Meyer v.

App. 78

the Constitution, generally referred to as the “Bill of

Rights.”"* The first eight of those amendments define a

hierarchy of rights that the founding generation

considered essential to the preservation of individual

liberty, justice, and freedom from arbitrary governmental

intrusions into, as well as purposeless restraints upon,

the private lives of citizens.‘* Even so, the history of the

proposal, adoption, and ratification of those amendments

is perfectly clear on this point: they were intended to

provide protection against acts of only the new, national

government.”

Nebraska, 262 U.S. 390, 402, 43 S. Ct. 625, 67 L. Ed. 1042 (1923)

(holding that “no adequate reason” had been shown for a state

legislative proscription against the teaching of subjects in the German

language following the end of the First World War, during a “time of

peace and domestic tranquility”).

13 See William J. Brennan, The Bill of Rights and the States, 36

N.Y.U. L. Rev. 761, 776 (1961) (“The Bill of Rights is the primary

source of expressed information as to what is meant by constitutional

liberty. The safeguards enshrined in it are deeply etched in the

foundations of America’s freedoms.”) (emphasis supplied).

14 Neither the Ninth nor Tenth Amendments specifically describe

individual rights and liberty interests. Instead, the Ninth Amendment

provides that “[t]he enumeration in the Constitution of certain rights,

shall not be construed to deny or disparage others retained by the

people,” whereas the Tenth states that “[t]he powers not delegated to

the United States by the Constitution, nor prohibited to it by the

States, are reserved to the States respectively, or to the people.” Even

so, at least three former Justices of the Supreme Court perceived in

the neglected Ninth Amendment a textual basis for protection of

“those personal rights” that are “so rooted in the traditions and

conscience of [the American] people as to be ranked as fundamental,”

even if those are “not mentioned explicitly in the Constitution” or Bill

of Rights. Griswold v. Connecticut, 381 U.S. 479, 486-87, 85 S. Ct.

1678, 14 L. Ed. 2d 510 (1965) (Goldberg, J., concurring, and joined by

Chief Justice Warren and Justice Brennan) (citation and internal

quotation marks omitted).

15 This principle was confirmed by Chief Justice Marshall, speaking

for a unanimous Court in Barron v. Baltimore, 32 U.S. (7 Pet.) 243, 8

L. Ed. 672 (1833), and holding that the amendments provided

App. 79

Beginning in 1897, however, the Supreme Court

embarked on a slow course of gradually “incorporating”

some of the specific rights enumerated in the first eight

amendments into the Fourteenth Amendment.” The

unifying principle giving order and coherence to a very

long line of “selective incorporation” cases is this: only

those rights deemed essential to the conceptions of liberty

or justice . were absorbed into the Fourteenth

Amendment’s Due Process Clause.’ Through this

process, the Court has determined over time that, with

only a few exceptions, most of the provisions of the Bill of

Rights meet the definition of “fundamental” liberties and,

thus, act as restraints against oppressive and arbitrary

actions by state and local governments, as well as the

federal.*®

“security against the apprehended encroachments of the general

government—not against those of the local governments,” and they

“contain no expression indicating an intention to apply them to the

state governments.” Id. at 247. See generally Alpheus T. Mason, The

States’ Rights Debate 91-93 (2d ed.1972); Robert A. Rutland, The

Birth of the Bill of Rights 200-215 (1955).

16 See Chicago, Burlington & Quincy Railroad Co. v. Chicago, 166

U.S. 226, 17 S. Ct. 581, 41 L. Ed. 979 (1897) (holding that the

Fourteenth Amendment’s Due Process Clause compelled state and

local governments to award just compensation when it took private

property for a public use, thus effectively, even though not explicitly,

absorbing the Fifth Amendment’s takings clause).

17 See, e.g., Palko v. Connecticut, 302 U.S. 319, 326, 58 S. Ct. 149, 82

L. Ed. 288 (1937) (“If the Fourteenth Amendment has absorbed them,

the process of absorption has had its source in the belief that neither

liberty nor justice would exist if they were sacrificed.”).

18 For a discussion of the specific portions of the Bill-of Rights that

have been absorbed into the Fourteenth Amendment, see Erwin

Chemerinsky, Constitutional Law: Principles and Policies § 6.3.3 (2d

ed.2002), and 2 Ronald D. Rotunda & John E. Nowak, Treatise on

Constitutional Law: Substance and Procedure § 15.6 (3d ed.1999).

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App. 80

Beyond the specific provisions of the Bill of Rights

thus absorbed into and protected by the Fourteenth

Amendment lies a constitutional quagmire, rife with soft

and slippery doctrinal ground, jurisprudential quicksand,

and subtle, semantical snares for the unwary traveler.

This is the domain of those rights that—even though

lacking an explicit textual basis in the Constitution—the

Supreme Court has recognized as possessing a value so

essential to the preservation of individual “liberty” that

they have been characterized as “fundamental.” They are

freedoms deemed “implicit in the concept of ordered

liberty,””® inherent in human nature, and consequently

inalienable. |

The specific liberty interests that fall under the

heading of :fundamental rights” have varied over the

course of the American experiment in democratic self-

government. For example, rights of “property” were of

paramount importance during the ante-bellum period,

and “freedom of contract” held sway -for seventy years

after the Civil War. With the decline of “economic

substantive due process” following the head-on collision of

the Hughes Court with Franklin Roosevelt’s “New Deal”

programs, however, those interests lost primacy. From

then through the remainder of the Twentieth Century,

personal liberty interests have assumed the position of

first importance.

Thus far, the Supreme Court has characterized

the following, non-textual liberty interests as

“fundamental” and, as such, rights that should prevail if

in conflict with governmental authority or other, less

valued, liberties:”° (i) the right to marry; (ii ) the right to

19 Palko, 302 U.S. at 325, 58S. Ct. 149.

20 See Washington v. Glucksberg, 521 U.S. 702, 720, 117 S. Ct. 2258,

138 L. Ed. 2d 772 (1997) (listing some, but not all, of those rights and

liberty interests recognized by the Supreme Court as fundamental).

App. 81

procreate;” (iii ) the right to purchase and use

contraceptives;” (iv ) the qualified right to an abortion;

21 Loving v. Virginia, 388 U.S. 1, 12, 87 S. Ct. 1817, 18 L.Ed.2d 1010

(1967) (“The freedom to marry has long been recognized as one of the

vital personal rights essential to the orderly pursuit of happiness by

free men.”); Zablocki v. Redhail, 434 U.S. 374, 384, 98 S. Ct. 673, 54 L.

Ed. 2d 618 (1978) (“Cases subsequent to Griswold and Loving have

routinely categorized the decision to marry as among the personal

decisions protected by the right of privacy.”); see also Turner v. Safley,

482 U.S. 78, 95, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987) (“[T]he decision

to marry is a fundamental right.”).

22 Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S. Ct. 1110, 86 L. Ed.

1655 (1942) (“Marriage and procreation are fundamental” rights. ).

23 Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d

510 (1965) (invalidating a Connecticut statute banning the use of

contraceptives by married couples); Eisenstadt v. Baird, 405 U.S. 438,

92S. Ct. 1029, 31 L. Ed. 2d 349 (1972) (expanding the right of privacy

articulated in Griswold, and holding that a Massachusetts law

prohibiting distribution of contraceptives to unmarried individuals

violated the Equal Protection Clause). “If the right of privacy means

anything,” Justice Brennan wrote in Eisenstadt, “it is the right of the

individual, married or single, to be free from unwarranted

governmental intrusion into matters so fundamentally affecting a

person as the decision whether to bear or beget a child.” Id. at 453, 92

S. Ct. 1029 (emphasis in original) (majority opinion). See also Carey v.

Population Services International, 431 U.S. 678, 97 S. Ct. 2010, 52 L.

Ed. 2d 675 (1977) (declaring unconstitutional a law providing that

only a licensed pharmacist could provide contraceptives to persons

over the age of 16 years, and that no one could distribute them to

persons under the age of 16).

24 Planned Parenthood v. Casey, 505 U.S. 833, 851, 112 S. Ct. 2791,

120 L. Ed. 2d 674 (1992); Roe v. Wade, 410 U.S. 113, 153, 93 S. Ct.

705, 35 L. Ed. 2d 147 (1973) (“This right of privacy, whether it be

founded in the Fourteenth Amendment’s concept of personal liberty

and restrictions upon state action, as we feel it is, or ... in the Ninth

Amendment’s reservation of rights to the people, is broad enough to

encompass a woman’s decision whether or not to terminate her

pregnancy.”) (Blackmun, J.).

App. 82

(v ) the right to custody of one’s children;” (vi ) the right

to keep a family together;”* (vii ) the right of parents to

direct the education and upbringing of their children;”’

(viii ) the right to marital privacy; (ix.) the right to

bodily integrity; (x ) the right to refuse unwanted,

lifesaving, medical treatment;*° (xi ) the right to travel

within the United States;*' (xii ) the right to vote;®? (xiii )

25 Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551

(1972); see also Michael H. v. Gerald D., 491 U.S. 110, 109 S. Ct. 2333,

105 L. Ed. 2d 91 (1989); Santosky v. Kramer, 455 U.S..745, 758-59,

102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982) (stating that a “natural

parent’s desire for and right to the companionship, care, custody, and

management of his or her children is an interest far more precious

than any property right”) (citations omitted).

26 Moore v. City of East Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.

Ed. 2d 531 (1977).

27 Troxel v. Granville, 530 U.S. 57, 66, 120 S. Ct. 2054, 147 L. Ed. 2d

49 (2000) (recognizing that “the Due Process Clause of the Fourteenth

Amendment protects the fundamental right of parents to make

decisions concerning the care, custody, and control of their children”);

Pierce v. Society of Sisters, 268 U.S. 510, 4& S. Ct. 571, 69 L. Ed. 1070

(1925) (addressing the right of parents to send their children to private

and parochial schools); Meyer v. Nebraska, 262 U.S. 390, 399, 43 S. Ct.

625, 67 L. Ed. 1042 (1923) (affirming the unwritten right to instruct a

child in a foreign language in a private school).

28 Griswold, 381 U.S. at 485-86, 85 S. Ct. 1678 (“Would we allow the

police to search the sacred precincts of marital bedrooms for telltale

signs of the use of contraceptives? The very idea is repulsive to the

notions of privacy surrounding the marital relationship.”) (Douglas, J.,

plurality opinion).

29 Rochin v. California, 342 U.S. 165, 72 S. Ct. 205, 96 L. Ed. 183

(1952).

30 Cruzan v. Missouri Department of Health, 497 U.S. 261, 279, 110

S. Ct. 2841, 111 L. Ed. 2d 224 (1990) (assuming that the Constitution

grants competent persons a “constitutionally protected right to refuse

lifesaving hydration and nutrition”).

31 Saenz v. Roe, 526 U.S. 489, 119 S. Ct. 1518, 143 L. Ed. 2d 689

(1999); Shapiro v. Thompson, 394 U.S. 618, 89 S. Ct. 1322, 22 L. Ed.

2d 600 (1969) (holding that residency requirements for receipt of state

App. 83

the qualified right to control the dissemination of private

information;® (xiv ) the right of all persons to equal

access to the courts;** and arguably (xu ) the right of

adults to engage in private, consensual, non-commercial,

sexual activity common to a homosexual lifestyle.*

welfare benefits violate the right to travel protected by the Equal

Protection Clause); The Passenger Cases, 48 U.S. (7 How.) 283, 12 L.

Ed. 702 (1849) (“We are all citizens of the United States; and, as

members of the same community, must have the right to pass and

repass through every part of it without interruption, as freely as in our

own States. And a tax imposed by a State for entering its territories or

harbours, is inconsistent with the rights which belong to the citizens of

other States as members of the Union, and with the objects which that

Union was intended to attain.”).

32 See U.S. Const. amends. XV (1870), XIX (1920), XXIV (1964), XXVI

(1971); see also, e.g., Kramer v. Union Free School Dist., 395 U.S. 621,

626, 89 S. Ct. 1886, 23 L. Ed. 2d 583 (1969) (right to vote is a

fundamental right protected by the Equal Protection Clause);

Reynolds v. Sims, 377 U.S. 533, 555, 84 S. Ct. 1362, 12 L. Ed. 2d 506

(1964) (“The right to vote freely for the candidate of one’s choice is of

the essence of a democratic society, and any restrictions on that right

strike at the heart of representative government.”); Yick Wo v.

Hopkins, 118 U.S. 356, 370, 6 S. Ct. 1064, 30 L. Ed. 220 (1886)

(holding that the right to vote is a “fundamental political right”

because it is “preservative of all rights”).

33 See, e.g., Whalen v. Roe, 429 U.S. 589, 97 S. Ct. 869, 51 L.Ed.2d 64

(1977).

34 See, e.g., Griffin v. Illinois, 351 U.S. 12, 16-17, 76 S. Ct. 585, 100 L.

Ed. 891 (1956) (quoting Magna Carta as the basis of the principle: “To

no one will we sell, to.no one will we refuse, or delay, right or

justice....No free man shall be taken or imprisoned, ... but by the

lawful judgment of his peers or by the law of the land.”).

35 Lawrence v. Texas, 539 U.S. 558, 123 S. Ct. 2472, 156 L. Ed. 2d 508

(2003). But see infra note 98, discussing the conclusion of the Williams

IV majority that Lawrence did not “announce a new fundamental

right” to sexual privacy “or, more broadly, to all forms of sexual

intimacy.”

App. 84

B. Standards for “Substantive Due Process” Review of

State Statutes

. The Fourteenth Amendment’s Due Process Clause

provides that “No State shall] ... deprive any person of

life, liberty, or property, without due process of law.” U.S.

Const. amend. XIV, § 1 (1868). In addition to the obvious

purpose of guaranteeing fair procedures,” the clause has

been construed as including a substantive dimension,

requiring that legislation be fair and reasonable in

content, and promote legitimate governmental

objectives.*” “In other words, substantive due process

looks to whether there is a sufficient justification for the

government’s action. Whether there is such a justification

depends very much upon the level of scrutiny

used.”

36 “Procedural due process, as the phrase implies, refers to the

procedures that the government must follow before it deprives a

person of life, liberty, or property. Classic procedural due process

issues concern what kind of notice and what form of hearing the

government must provide when it takes a particular action.” Erwin

Chemerinsky, Constitutional Law: Principles and Policies § 7.1, at 523

(2d ed.2002) (emphasis in original).

37 See, e.g., Collins v. Harker Heights, 503 U.S. 115, 125, 112 S. Ct.

1061, 117 L. Ed. 2d 261 (1992) (observing that the substantive

component of the Due Process Clause “protects individual liberty

against certain government actions regardless of the fairness of the

procedures used to implement them”) (citation and internal quotation

marks omitted); Troxel] v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054,

147 L. Ed. 2d 49 (2000) (observing that the substantive component of

the Due Process Clause provides “heightened protection against

governmental interference with certain fundamental rights and liberty

interests”).

38 Chemerinsky, supra note 36 at 523-24 (emphasis supplied)

(footnote omitted).

App. 85

Rs Rational Basis Test

If a statute impacts only business or economic

interests, and does not implicate fundamental rights or

employ “suspect criteria” to define the class of persons

benefited or burdened by the legislation,® then the state’s

justification for the law is evaluated by a standard known

as the “rational basis test.” This standard requires courts

to compare the content of a statute to its purported

39 Statutes challenged under the Fourteenth Amendment’s Equal

Protection Clause for allegedly employing “suspect criteria” to define

the class of persons benefitted or burdened by the law—e.g., an

individual’s race or national origin—are subjected to “strict scrutiny.”

See, e.g., Richmond v. J.A. Croson Co., 488 U.S. 469, 109 S. Ct. 706,

102 L. Ed. 2d 854 (1989) (“affirmative action” case employing strict

scrutiny standard to review state and local legislation benefitting

racial minorities). See generally Joseph Tussman and Jacobus

TenBroek, The Equal Protection of the Laws, 37 Calif. L. Rev. 341, 353

(1949) (“The assertion of human equality is closely associated with the

denial that difference in color or creed, birth or status, are significant

or rele

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