11th Circuit: Multiple Sclerosis Patient Has No Right To Sex Toys
August 5, 2016 (Fault Lines) — In Sandy Springs, Georgia, you can buy all the back massagers you want. Hitachi magic wands on demand. But “[a]ny device designed or marketed as useful primarily for the stimulation of human genital organs is obscene material…” A marital aid shop had two options: hire a marketing consultant to find a non-obscene use for butt plugs and remote control rotating dildos with LED displays, or take Sandy Springs to court.
Flanigan’s Enterprises chose the second option, arguing all the way to the 11th Circuit that a ban on sex toys interfered with the right to “[p]rivate, consensual intimacy” provided under the 14th Amendment. After all, if you have the right to sleep with a consenting adult of your choice, using the best lubrication for sex, without government intervention, what is obscene about using something to assist in the process?
And Flanigan’s picked a clever strategy, tagging out for a more sympathetic plaintiff mid-way through the process:
Davenport suffers from multiple sclerosis and uses sexual devices (such as an app controlled vibrator) with her husband to facilitate intimacy. She seeks to purchase sexual devices in Sandy Springs for her own use, as well as to sell sexual devices to others in Sandy Springs who suffer from the same or a similar condition.
Another plaintiff claimed that he wanted to use sex toys in his artwork. According to the 11th Circuit, this was not affected by the ordinance in the first place.
Unfortunately for non-artsy couples and frisky singles in the Sandy Spring area, who doubtless strictly observe the prohibition, the 11th Circuit found that, per its previous opinion, there is no right to buy or sell (or, if you’re not big on hygiene, rent) sex toys. In fact, per its 2004 opinion, there is no right to sexual privacy, nor to use “vibrators, dildos, anal beads and artificial vaginas.”
This is a surprising outlier opinion in a country where even Ted Cruz couldn’t persuade the conservative 5th Circuit Court of Appeals to keep a sex toy ban. In that case, the 5th Circuit didn’t hesitate to note that Lawrence v. Texas was pretty explicit about letting people be explicit, especially when the law banning “immoral” conduct was only sporadically enforced, suggesting that it was more about making a moral statement than actually fixing any sort of problem.
In that case, Cruz and co-argued that a ban on sex toys helped in “discouraging prurient interests in autonomous sex and the pursuit of sexual gratification unrelated to procreation and prohibiting the commercial sale of sex.” Those interests sound a hell of a lot like the arguments the State made in Windsor and Obergefell when they wanted to keep gay marriage from being a thing.
Now, there are some who might say that the 11th Circuit is being principled here. They had a 2004 case that dealt with exactly this issue, and that case hasn’t been overturned, so they are just following precedent. They even encouraged the plaintiffs to seek en banc opinion from the whole court, noting that “we are constrained by our prior precedent in Williams IV, and we are obligated to follow it ‘even though convinced it is wrong.'”
But there was an easy out. As the plaintiffs argued, all of the justifications put forth by the city to support a ban on marital aids had been seriously worn away by Supreme Court precedent. Even Robert’s dissent in Obergfell, was hasty to point out that:
Unlike criminal laws banning contraceptives and sodomy, the marriage laws at issue here involve no government intrusion. They create no crime and impose no punishment. Same-sex couples remain free to live together, to engage in intimate conduct, and to raise their families as they see fit. No one is “condemned to live in loneliness” by the laws challenged in these cases-no one. Ante, at 28. At the same time, the laws in no way interfere with the “right to be let alone.”
But Sandy Spring’s ban on sex toys? It does all of those things. Its real goals have nothing to do with public morality. In truth, it has a lot more to do with Sandy Springs’ efforts to remove nude dancing establishments and embarrassing porn shops from public view. This just means that more and more people are turning to online stores, choosing to shop for such things at loveplugs.co instead for the sake of privacy.
And for that, and the faint appearance of moral uprightness, the newly formed city has frittered away a million taxpayer dollars that its insurance won’t cover. Because keeping up appearances, even at taxpayer expense, is a better bet than focusing on ways to help the community that won’t spawn a host of lawsuits.
A less refined commentator might suggest that Sandy Springs, victorious but likely to be reversed en banc, has something firmly planted in its backside. But as a person of elegance and taste, I can assure you, it is strictly for medical purposes.