Sweet Home Alabama - No Joy Toys but Guns are OKAY!

11th Circuit Nixes Sex Toys, Sex Rights

Jonathan Ringel
Fulton County Daily Report
07-29-2004


Americans do not have a fundamental right to sexual privacy, a 2-1 decision of the 11th U.S. Circuit Court of Appeals said on Wednesday.

The split panel upheld an Alabama law -- nearly identical to one in Georgia -- that made the sale of sex toys a crime punishable by up to a year in prison.

The decision extends an emerging division in the court over sexual rights, with Judges Stanley F. Birch Jr. and Rosemary Barkett leading opposing factions.

Birch maintains that although the U.S. Supreme Court last year struck down a Texas law criminalizing homosexual sodomy, the justices have not decided fully that sexual privacy is a fundamental right protected by the Constitution.

Barkett claims that the court is refusing to apply the sodomy decision to laws that violate people's right "to be left alone in the privacy of their bedrooms."

Last week, the full 11th Circuit split 6-6 in denying reconsideration of a decision that upheld a Florida law prohibiting homosexuals from adopting children. Birch wrote that while he thought the law was "misguided," since there was no "constitutional liberty interest in private sexual intimacy," the court must uphold Florida lawmakers' right to exclude gays and lesbians from adopting.

Barkett wrote that the Florida law violated equal protection guarantees in the 14th Amendment and "substantive due process" rights to sexual privacy established in last year's sodomy case, Lawrence v. Texas, 123 S.Ct. 2472.

Two judges agreed with Barkett that Florida was violating homosexuals' equal protection rights; three other judges said the case was important enough to deserve another look.

This week Birch and Barkett faced off again, with Senior Judge James C. Hill providing Birch the swing vote in favor of Alabama's right to prohibit the distribution of "any device designed or marketed as useful primarily for the stimulation of human genital organs ... ."

The result read like a highly charged repeat of last week's decision, with Birch echoing his earlier analysis and Barkett calling the majority's ruling "demeaning and dismissive."