From AJC.com
Court OKs Alabama sex toy ban
The federal appeals court in Atlanta has upheld Alabama's law banning "sex toys" by refusing to hold that people have a fundamental right to sexual privacy.
In a 2-1 ruling issued Wednesday, the 11th U.S. Circuit Court of Appeals refused to overturn the 1998 Anti-Obscenity Enforcement Act. The law forbids the commercial distribution of devices designed to stimulate sexual activity. It does not criminalize the possession of the devices.
The lawsuit was brought by both sellers and users of sex toys. Their lawyers contended the law violates the constitutional rights to privacy and to personal autonomy.
The 11th Circuit declined to agree that a fundamental right to sexual intimacy was created last year when the U.S. Supreme Court invalidated a Texas law making homosexual sodomy a crime. Writing for the majority, Judge Stanley Birch said the nation's highest court declined to go that far.
"If we were to accept the invitation to recognize a right to sexual intimacy," Birch added, "this right would theoretically encompass such activities as prostitution, obscenity and adult incest ? even if we were to limit the right to consenting adults."
In dissent, Judge Rosemary Barkett called the majority's analysis "demeaning and dismissive."
"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," Barkett wrote.
Atlanta lawyer Alan Begner, who said a similar Georgia law was upheld by the state Supreme Court in 1997, said the Alabama sex toy case should be taken up by the U.S. Supreme Court on appeal. Begner said a decision on whether people have a fundamental right to sexual intimacy could ultimately decide the constitutionality of same-sex marriages.
