Tangle with Toys 

A recent Supreme Court decision, Lawrence v. Texas, struck down a Texas law that criminalized same-sex sodomy. In a vague opinion, the Court explained that the Constitution’s due-process clause gives consenting adults a right to engage in private sexual acts.

Why then did the United States Court of Appeals for the Eleventh Circuit hold in Williams v. Attorney General of Alabama that the Constitution doesn’t protect the use of sex toys?

In 1998, the Alabama legislature enacted the Anti-Obscenity Enforcement Act, a law that prohibits the sale of anything designed or marketed as a sexual device. Soon after the American Civil Liberties Union sued to prevent the state from enforcing the law against certain sexual-device users and vendors. The ACLU argued that the law violated a fundamental right to sexual intimacy by burdening the use of sexual devices. The sexual-device users in the case included women who used the devices therapeutically. The vendors, who asserted their rights and those of their customers who were too embarrassed to sue, had sold sexual devices like vibrators, dildos, anal beads, and artificial vaginas. One of the vendors did so in a store near a Wal-Mart. The other sold the devices at Tupperware-style parties.

The trial court struck down the law, deciding that the State of Alabama didn’t have a legitimate interest in preventing the sale of sexual devices. The Eleventh Circuit reversed that decision, holding that the state has a legitimate interest in preserving public morality. It then sent the case back to the trial court to determine whether the Constitution gave the vendors and the users a fundamental right to sexual intimacy.

So what’s a fundamental right? The Constitution’s due-process clause protects liberty rights. Some of these rights—like the right to procreate or the right to use contraceptives—are viewed as being so fundamental that they deserve added protection from courts. Courts give that added protection by strictly scrutinizing laws that infringe on fundamental rights. When the right isn’t fundamental, a court need not scrutinize the law as closely.

To determine whether the right to sexual intimacy was one of these fundamental rights, the trial court in Williams did a Glucksberg analysis. This analysis, which the Eleventh Circuit ordered, required the trial court to (1) describe the “asserted fundamental liberty interest” and to (2) apply the idea that rights are fundamental only if they’re “deeply rooted in this nation’s history and tradition.” After performing this analysis, the trial court held that the users and vendors had a fundamental right to sexual intimacy. Since the Alabama law burdened this right, the court again prohibited the state from enforcing the law against the vendors and users. The State of Alabama appealed this decision.

Before the Eleventh Circuit judged the appeal, two cases were decided that affected sexual intimacy’s status as a due-process right. One of them was Lawrence v. Texas and the other was Lofton v. Secretary of the Department of Children & Family Services.

In Lawrence, Texas argued that its interest in preserving public morality was a legitimate interest that justified its criminal law against same-sex sodomy. The Supreme Court rejected this argument, adopting the dissenting opinion from a past Supreme Court case named Bowers v. Hardwick: “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.” The Supreme Court ruled that the Texas statute violated the most private human conduct in the most private place—sexual intimacy in the home. Although the law prohibited a specific sexual act, the Court held that framing the issue as whether the due-process clause protected a specific act would misjudge the “extent of the liberty at stake.” The Court therefore framed its inquiry as whether the due-process clause protected sexual intimacy. Sexual intimacy was classified as a form of due-process liberty because it is a way that people achieve personal autonomy. States may not deprive their citizens of this intimacy unless the deprivation furthers at least a legitimate state interest.

Gay plaintiffs later used this reasoning to support their argument in Lofton that a Florida law prohibiting gays from adopting children violated a fundamental right to sexual intimacy. The Eleventh Circuit rejected this argument, deciding that the facts in Lawrence were so different from the facts in Lofton that the Supreme Court’s reasoning in Lawrence didn’t apply in Lofton. The Eleventh Circuit also said that Lawrence didn’t announce a fundamental right to sexual intimacy because the Supreme Court didn’t do the things that courts typically do when announcing fundamental rights—things like strictly scrutinizing the law and doing a Glucksberg analysis. According to the Eleventh Circuit, Lawrence stood only for the proposition that states may not criminalize private gay conduct.

With the Lawrence and Lofton cases as fresh precedent when Williams returned to the Eleventh Circuit on appeal, the court looked through a new lens to determine the degree to which the due-process clause protects a right to use sexual devices.

Judge Birch wrote the Eleventh Circuit’s majority opinion in Williams. Applying the same reasoning as the court applied in Lofton, he said that Lawrence didn’t recognize a fundamental right to sexual privacy. He said that any other holding would “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.” He stressed that the Supreme Court consistently declined to recognize a fundamental right to sexual intimacy, despite having had many chances to do so. While acknowledging that Lawrence was the most recent of these chances, he said that Lawrence established only that criminalizing consensual-adult sodomy was unconstitutional. He called the Supreme Court’s sexual-intimacy discussion in Lawrence “scattered dicta” (i.e., not a binding interpretation of law) and concluded that the claim against the Anti-Obscenity Enforcement Act was an attempt to recognize a fundamental right that no Supreme Court precedent had ever mentioned. This conclusion required him to use a Glucksberg analysis to evaluate whether the Eleventh Circuit should recognize a new fundamental right. Consistent with this analysis, Judge Birch narrowly framed the alleged right as the right to use sexual devices. Declining to announce this right, the Eleventh Circuit reversed the trial court’s decision to prevent the State of Alabama from enforcing the Anti-Obscenity Act against the sexual-device vendors and users.

Judge Barkett delivered the dissenting opinion in Williams. She argued that the majority’s opinion conflicted with the Supreme Court’s recognition in Lawrence that the due-process clause protects a fundamental right to sexual intimacy. She emphasized that the Supreme Court decided to review the Texas statute in Lawrence to consider whether people, in exercising their due-process liberty, are free as adults to engage in private sexual conduct. The Supreme Court resolved Lawrence under this issue, she said, so the sexual-intimacy discussion in that case wasn’t “scattered dicta.” She then attacked the majority’s failure to question why the Supreme Court held in Lawrence that criminal prohibitions against sodomy are unconstitutional. According to her, the Supreme Court held that, because adults have a right to sexual intimacy, a state may not criminalize sodomy. And she questioned the majority’s inability to explain why public morality is a rational basis for criminalizing sexual intimacy when the Supreme Court didn’t consider public morality to be a legitimate state interest in Lawrence. Finally, she criticized how narrowly the majority framed the asserted right of the sexual-device users and vendors. To her, the Supreme Court demonstrated in Lawrence that reducing sexual intimacy to a particular act demeans and trivializes sexual intimacy’s importance to an adult’s private life.

Despite these arguments from Judge Barkett and Judge Birch, neither judge grasped the sexual-intimacy right that the Supreme Court declared in Lawrence. Judge Barkett was wrong because, as Judge Birch said, announcing a fundamental right without strictly scrutinizing the law would’ve been illogical. But Judge Birch’s majority opinion was wrong for ignoring the Supreme Court’s decisions in Lawrence that (1) a state’s interest in preserving public morality isn’t a legitimate interest that justifies criminalizing private conduct and that (2) courts shouldn’t subject asserted sexual-intimacy rights to a Glucksberg analysis.

In Lawrence, the Supreme Court said that sexual intimacy is an entirely private activity that is “but one element” in an enduring personal bond. Preserving public morality isn’t a legitimate state interest that justifies criminalizing those bonds. Judge Birch and the majority of the Eleventh Circuit therefore ignored the Supreme Court’s recognition in Lawrence that “[o]ur obligation is to define the liberty of all, not to mandate our own moral code.” A constitutional right to sexual intimacy doesn’t always trump a state’s interests, though. The State of Alabama might have justified the Anti-Obscenity Act on a basis other than public morality—the state has a legitimate interest in regulating sexual-device sales in areas near children. Given one of the vendor’s proximity to Wal-Mart, maybe this interest was present in Williams. Maybe it was cause for distinguishing Williams from Lawrence in that the State of Texas had no legitimate interest in its statute.

Even so, Williams and Lawrence were distinguishable for a more compelling reason: selling sexual devices, as opposed to using them, isn’t private sexual conduct or a way that the vendors achieve personal autonomy. And assuming that sexual devices help their users establish autonomy and personal bonds, the Anti-Obscenity Enforcement Act burdens rather criminalizes sexual-device use. A critical factor in Lawrence was that the Texas statute’s criminal sanctions stigmatized homosexual sodomy. The Anti-Obscenity Enforcement Act doesn’t do the same to sexual-device use. So Judge Birch and the Eleventh Circuit ought to have distinguished Lawrence, as they did in Lofton, by basing Williams ’s ruling on the factual differences.

The final mistake by Judge Birch and the Eleventh Circuit was to subject the purported sexual-intimacy right to a Glucksberg analysis. Judge Birch recognized that Lawrence was the latest Supreme Court case on sexual intimacy as a due process right. But he failed to question why the Supreme Court didn’t use a Glucksberg analysis in Lawrence.

The Supreme Court probably had two reasons for deciding Lawrence without a Glucksberg analysis. First, the purported sexual-intimacy right in Lawrence was different than the Glucksberg petitioners’ purported right to assisted suicide. The Supreme Court declined to recognize a due-process right to assisted suicide in Glucksberg, arguably because “[t]he value to others of a person’s life is far too precious to allow the individual to claim a constitutional entitlement to complete autonomy in making a decision to end that life.” A state’s interest in preserving life exceeds its interest in criminalizing private sexual conduct. Such conduct reaches the core of personal autonomy while compromising few essential state interests. Second, Lawrence impliedly rejected the two prongs of a Glucksberg analysis. The Supreme Court decided in Lawrence that modern traditions are most relevant when analyzing sexual intimacy because they provide an emerging awareness that liberty protects how adults conduct their private sex lives. So the Supreme Court necessarily rejected the need for courts in sexual-intimacy cases to apply Glucksberg’s requirement that due-process rights be deeply rooted in our history. And it rejected Glucksberg’s requirement that courts describe asserted rights narrowly. Lawrence decided that courts misapprehend and therefore demean sexual intimacy if they narrowly frame an issue as whether the due-process clause protects a specific sexual act.

Lawrence didn’t settle how far the Supreme Court will go to protect sexual intimacy. Nor does the liberty that the Court announced in Lawrence currently shield citizens from a statute that only burdens sexual intimacy. But Williams is troubling for its failure to explain Lawrence properly to the Eleventh Circuit’s lower courts. To guard sexual privacy and escape criminal sanctions aimed only at propagating the governing majority’s morality, citizens in the Eleventh Circuit’s jurisdiction must now jump the high hurdles of a Glucksberg analysis. This will impede meaningful judicial discussions of sexual intimacy. Rather than emphasize the enduring relationships of which sexual conduct is just one element, courts under Williams will reduce personal bonds to particular sexual acts. And that, as the Supreme Court told us in Lawrence v. Texas, demeans sexual intimacy.

Paul Theiss, a Dallas resident, got his J.D. in May 2006 from the Southern Methodist University Dedman School of Law, where he served as the SMU Law Review’s editor-in-chief. This article was written while he was a student there and the SMU Law Review published the original version. Currently, he serves as a law clerk for the Honorable Mary Lou Robinson, U.S. District Court, Northern District of Texas. After his clerkship, he plans to work in Dallas for the law firm Hughes & Luce, LLP.