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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0459%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2007

## Text

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 t

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0459%3A2. Public record. Not legal advice.