Can Sex Toys be Banned?

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Sex Tech Industry Blog Sex Toys Ban

It is with great “pleasure” that I can report that on March 21, 2017, the City Council of Sandy Springs, a suburb of Atlanta, Georgia, repealed an ordinance which banned the sale of sex toys in the city. The City did this on its own volition in the wake of a rehearing by the Eleventh Circuit Court relating to the constitutionality of the ordinance. The rehearing is set to go on even in light of the repeal, and it is extremely important to watch as it will essentially decide whether we have a right to use sex toys in the privacy of home.

Enacted in May of 2004, subsection (c) of Section 38-120 in Article IV of Chapter 38 (“the Ordinance”) of the City Code, categorized as “obscene” “[a]ny device designed or marketed as useful primarily for the stimulation of human genital organs [except as to prevent pregnancy or the spread of STDs]”. The ordinance made it illegal to sell such devices. The exact language was amended several times over the years.

In October of 2009, a lawsuit was filed against the City in the United States District Court for the Northern District of Georgia, asserting that certain portions of the City’s Code of Ordinances were unconstitutional, one of which being the restrictions on the sale of sexual devices (i.e. sex toys).

The District Court broke up the suit into two pieces, by issuing an order “severing” the plaintiffs’ challenge to the Ordinance’s prohibition relating to sexual devices, from other issues in the initial complaint. It is this prohibition that we focus on here.

Plaintiffs in the trial court litigation include Flanigan’s Enterprises, Inc. of Georgia (though they did not participate in the appeal), Fantastic Visuals, LLC (Inserection), Melissa Davenport, and Marshall Henry. Inserection is an adult bookstore located in Sandy Springs that sells sexually explicit materials and items, including sexual devices. Davenport and Henry are “intervenors” as additional affected parties that joined the litigation following the severance. Davenport, having multiple sclerosis, says she uses sexual devices with her husband to facilitate intimacy. She wants to be able to purchase sexual devices in Sandy Springs for her own use. She also wants to be able to sell sexual devices in Sandy Springs to others who suffer from the same or a similar condition. Henry, an artist, creates artwork using sexual devices. He wants to buy sexual devices in Sandy Springs for his own private sexual activity and for use in his artwork. He also wants to be able to sell his artwork in Sandy Springs.

The City filed an answer to the complaints of the plaintiffs and moved for “judgment on the pleadings”. A basis for motion for judgement of the pleadings is that “there are no material issues of fact to be resolved and that party is entitled to judgment as a matter of law.” The District Court granted the City’s motion and entered an order upholding the Ordinance, and therefore, allowing the prohibition against the sale of sexual devices to stand.

Of course, the Plaintiffs filed an appeal, asserting that such ruling by the District Court was erroneous.

The appeal was heard by the U.S. Court of Appeals for the Eleventh Circuit. There, the Appellants (the Plaintiffs minus Flanigan’s) asserted that the Ordinance violates the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution. Such Amendment, in pertinent part, provides:

No State shall . . . deprive any person of life, liberty, or property, without due process of law.

The Appellants argued that they have a fundamental right to engage in acts of private, consensual sexual intimacy, and that the City Ordinance is a burden on that right.

According to the Circuit Court, this case turned on the District Court’s (as well as the Circuit Court’s) requirement to follow precedent. In the United States, our laws are based on a system where a court is bound to follow prior decisions, made by itself or higher courts, when the same issue arises in later cases. The theory is that this makes outcomes more fair and uniform, and results somewhat predictable.

Essentially, to make a long story here short, it was the Circuit Court’s assertion that “its hands are tied,” so to speak by the prior case of Williams v. Attorney General (Williams IV), 378 F.3d 1232 (11th Cir. 2004). In Williams IV, the American Civil Liberties Union (ACLU) challenged (in front of the Eleventh Circuit) an Alabama statute that prohibited the sale of sexual devices. The ACLU argued that the law violated a fundamental right to sexual privacy, which includes a right to use sexual devices in the privacy of home. The Circuit Court disagreed, and held that the Due Process Clause does not, in fact, include a right to buy, sell, and use sexual devices.

The Appellants argued that such case should basically be overruled in light of the subsequent decisions of the Supreme Court of the United States in United States v. Windsor, 570 U.S. ___, 133 S. Ct. 2675 (2013), and Obergefell v. Hodges, 576 U.S. ___, 135 S. Ct. 2584 (2015). Essentially, the Appellants’ argument is based on the fact that a decision made by the highest court in the land would trump a rule made by a lower court.

The Circuit Court held that “[a]lthough we are persuaded that Windsor and Obergefell cast serious doubt on Williams IV, we are unable to say that they undermine our prior decision to the point of abrogation.” The Court explained that it did not feel that the cases of Windsor and Obergefell were exactly on point as to constitute the same issue as in Williams IV – which would be required for a departure from Williams IV. Accordingly, the Circuit Court stated:

…unless and until our holding in Williams IV is overruled en banc, or by the Supreme Court, we are bound to follow it. Although we are sympathetic to the Appellants’ Fourteenth Amendment Due Process claim, we are constrained by our prior precedent in Williams IV, and we are obligated to follow it “even though convinced it is wrong.” SeeUnited States v. Steele, 147 F.3d 1316, 1318 (11th Cir. 1998). The Appellants are free to petition the court to reconsider our decision en banc, and we encourage them to do so.

A case heard “en banc” means that all of the judges of a court hear and rule on a case, rather than a subset panel of the judges (usually three). In this case, at this level, the Circuit Court held for the City, but clearly encouraged the Plaintiffs to petition to reconsider the Williams IV case en banc, the implication being that the Circuit Court may overturn Williams IV if it can be done so in compliance with proper procedure (which would require an en banc hearing). So, if the Court were to grant the petition, and hear the case with the full bench present, the Court could, with regard to the current situation, make a decision which is not in congruence with its decision in Williams IV, and invalidate the Ordinance at issue in the present case.

The Appellants did, in fact, file the petition for rehearing en banc, and this year, the Eleventh Circuit granted it. The Circuit Court’s decision is therefore vacated, and the case will be reheard.  Oral arguments are scheduled for April 26, 2017.  Williams IV was decided in 2004, and, as the saying goes, “times change.” Thirteen years later, the public’s view on sex and sexuality has changed considerably, and perhaps the Circuit Court recognizes that.  The decision will be interesting, especially considering that there still are other states with sex toy bans on the books.

You can read the full text of the Circuit Court’s now-vacated decision here. We’ll update you as things progress with the rehearing.  In the meantime, the City, on its own volition, repealed the Ordinance at issue in March. So, even before the Circuit Court’s decision, people can sell, and buy sex toys, in Sandy Springs, Georgia without fear of being prosecuted. And that sure is “exciting” (yes, as usual, pun intended)!

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