Gah! And isn't it somewhere in North Dakota wants to start enforcing a law against nonmarried couples living together. I one is acutally being enforced somewhere in Missouri.

And add in the Blue Laws.

This Christian Nation notion, there's no fun or joy in it whatsoever.

My God.

Has the Eleventh Circuit never read Baird or Griswold??

Because, last I checked, you can't grow birth control pills in your vegetable garden...

I'm guessing these judges are men, and think that the problem with prostitution isn't issues of consent, coercion and abuse, but that sexuality shouldn't be sullied by money. It's aesthetics masquerading as morality.

Why, of course vibrators are like prostitutes. You need to pay them fifty bucks a trick but keep them beaten and abused so that they don't ever complain to the police about what you're doing to them.

I think they are scared that if people buy vibrators they will never have penetrative sex with men again.

Well, not to defend Alabama, but the court didn't say outlawing masturbation wasn't unconstitutional, it said outlawing the sale of something wasn't. They really couldn't have ruled the other way without exploding the substantive due process right into an all-encompassing right to anything.

Law Fairy, at first I totally agreed with you, but now I'm torn:

On the state-of-the-law front, our sexual privacy jurisprudence links the right to purchase or otherwise obtain goods to contraception and reproductive rights, not a right to sexual expression, generally. Lawrence recognizes a right to private sexual expression, but does not explicitly identify a right to obtain commoditites that aid that sexual expression. So Lawrence could mean I'm constitutionally entitled to a sex toy, but it doesn't mandate such a result.

On the what-is-right front, purchasing a commodity such as a sex toy does not hurt anyone in the same way as does purchasing a commodified human being (e.g. hiring a prostitute or buying porn). Thus I'm all for sex toys being legal. In addition, I agree that the Eleventh Circuit is drawing ridiculous analogies in likening a one-time payment at a store for a device that one later uses in private to the sale of a human being's sexuality. Plus, if sex toys are unprotected, why is porn?

I know, I know, First Amendment. But I'll not-so-respectfully disagree that the majority of porn has artistic, educational, or literary value.

Sex toy=prostitution? I fail to the connection.

Anyways, I guess in Alabama guns are okay, but sex toys are a no no.

legally blondeez, the porn point is a great one. Sex toys, particularly those marketed for women, have decent educational value. I completely agree that very little porn has any redeeming value -- but, sadly, even such legal superstars as Catharine MacKinnon haven't been able to convince the powers that be of this.

I'll have to re-read the decisions I mentioned, it has been a while since I've read them. It seems to me that, theoretically, there could be men and women unable to orgasm without the aid of a sex toy. In this case, making their purchase illegal effectively operates as a bar on private sexual expression. (If not, then it would be perfectly constitutional to outlaw Viagra -- and you won't find a single one of those aged, male justices who wants Viagra outlawed :P )

And boy, would that be a fun case to try :0)

Law Fairy, the statute exempts the sale of the toys for bona fide medical reasons, so presumably women unable to orgasm without the aid of a sex toy could qualify for that.

Of course, that would require seeking a potentially highly embarrassing exemption process.

Glacing quickly at Griswald and Baird, this is actually a pretty difficult case.

Griswald was an early right to privacy case which held that married couples (and only married couples) are constitutionally entitled to purchase and use contraception. While Justice Douglas' reasoning in that case is famously hazy, the best reading of it is probably that marriage is an association which so deeply valued--and deeply necessary--in our society, that the Constitutions right of association must protect it. The Court viewed marriage as one of the most important, if not the most important, associations which can exist, and because the Constitution already protected assocations such as political organzing, it must also preserve the association of marriage.

At the same time, the Court also recognized that marriage is "intimate to the degree of being sacred," and that sexuality is an essential aspect of this intimacy. In other words, the Court's decision had two parts: 1) Marriage is essential, and must be protected by the Constitution, and 2) Sexual intimacy is an essential part of marriage, and therefore burdens upon sexuality between marital partners cannot be permitted.

In Baird, Justice Brennan engaged in a little jujitsu to extend the right of access to contraception to non-married couples. The core holding of Baird is that "whatever the rights of the individual to access to contraceptives may be, the rights must be the same for the unmarried and the married alike." Thus, under the Equal Protection Clause, if married couples are entitled to a right, that right must also be extended to non-married individuals.

There is troubling language in Baird, however. Baird describes the right of privacy as "the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." In other words, Baird appears to back away from Griswald's holding that "intimacy" is the essential right which must be protected, and instead suggests that contraception itself is the fundamental right at stake.

If the right to privacy is about contraception, then the Alabama sex toys law is constitutional, because sex toys do not make a woman pregnant. If the right to privacy is about intimacy, however, then the sex toys law is unconstitutional, because toys are sometimes an essential part of a couple's intimacy.

Lawrence throws a new wrench into the works. That case holds that the Constitution protects the "intimate choices," of individuals, suggesting that Griswald's intimacy framework is still controlling. At the same time, the Eleventh Circuit is correct to note that Lawrence protects the "personal and private life of the individual," and not those parts of their life that are done in public.

Even so, I believe the best reading of these three cases would be to hold the Alabama law unconstitutional. If the right to privacy is about "private" intimacy, that does not change the fact that the contraception at issue in Griswald was purchased in a public place, and yet that public purchase is still protected. Griswald held that the right to (publically) purchase contraception is constitutionally protected because it is essential to the intimacy which the Constitution protects. On the same note, to the extent that the purchase of sex toys is essential to the preservation of this same intimacy, the Constitution must also provide the same shield.

Ok, that was a much longer comment than I meant to write. My apologies to those who had to wade through it all.

Ooh, the Viagra comparison would make for a nice equal protection aspect to a case re: sex toys and otherwise non-orgasmic women. But do people actually have a right to orgasmic sex? I'd be willing to bet that, Viagra aside (I can just hear it, "That's a medical issue, kids! Women who don't orgasm are just frigid!"), you don't have a right to successful sex (ill-defined as orgasmic sex) just as you don't have the right to a successful career as an NBA star. Unless, of course, you want to present non-orgasmic people as being handicapped and entitled to some kind of reasonable acommodation, and even then you'd have to work in a place where the ADA applies, which sort of eliminates the private part of private sexual expression.

I also am probably a bit rusty on my con law but my oversimplified understanding of the evolution of the privacy "penumbra" goes something like religious freedom + freedom of speech --> right to make decisions for family (e.g. no public school for religious reasons) --> right to make decisions on when to have family (married couples only) --> right to decide when to have children (anyone, within limits) --> right to private sexual expression. Which means only the last step goes beyond rights related to childbearing/rearing. I am willing to reread and revise my opinion if that's an unfair chronology. I'm also willing to accept that Lawrence may have drawn on other sources and types of rights.

I think I miss law school. Firm life is sucking out my soul.

Ian: that's a good analysis (we were writing at the same time) except it still doesn't deal with the issue of masturbation, unless we are going to say that's essential to intimacy with self. Could be, but that would be a pretty far-out statement for most members of the federal bench, I'm betting.

Then again, if sex toys are sometimes essential to the protected intimacy between couples (as suggested by Griswold and Lawrence), and since individuals are guaranteed the same rights whether they are married or not (as Baird held), it could be both unconstitutional to deny couples access to sex toys and also unconstitutional to question an individual about his or her intentions for the toys and deny access to the toys on the basis of whether they will be used solo or otherwise. Yay!

I agree that Baird probably extends the intimacy based right to privacy to individuals who purchase sex toys for solo use. Baird was very clear that the right to privacy is about the "right of the individual," and that if a fundamental right extends to one person, it must extend equally to all.

This reading of the right of privacy seems to run afoul of Ayotte, however. In Ayotte--Justice O'Connor's last opinion for the Court--the Court held that an anti-abortion parential notification law which lacked a health exception was only unconstitutional as applied to women who required the health exception. It could not be enjoined to benefit underage women whose health was not endangered by their pregnancy. In other words, while Baird holds that the sexual intimacy right to privacy must apply equally to all persons, the abortion right to privacy can divide women into two classes: those with health-threatening pregnancies and those without, and grant different rights to the two classes.

This view of the abortion right is, of course, not inconsistent with Roe. Roe divided the universe of pregnant women into trimesters, and those in the first trimester enjoyed a much broader right of access to abortion than those in the later two.

I mention this distinction because it is clear that the Roberts Court will continue to knaw away at the abortion right for as long as its present majority remains intact. That said, to the extent that advocates can demonstrate that the Court's abortion jurisprudence is distinct and divergent from its sexual intimacy jurisprudence, it should remain possible to preserve the Griswald/Baird/Lawrence right as one that adheres to all persons equally.

I think I miss law school. Firm life is sucking out my soul.

AMEN. I missed law school within a month and a half of starting work, and my workload at the time was pretty light. Sigh...

Ian, thanks for the refresher. Now that you mention it, I do vaguely remember that strong language from Griswold, which in my mind makes the answer to the gay marriage question PAINFULLY OBVIOUS and yet SCOTUS continues to drag its feet, pathetically.

My recollection of Roe is that its holding was actually very broad and ill-defined, and that it was later cases like Casey that slowly chipped away at abortion rights, breaking it down into trimesters and such. This, and the current court we're faced with, makes me kind of nervous. We have some likely retirements coming up in the next few years, but they'll likely be from justices on our side of things. Of course, we could luck out -- Scalia could take a cue from his daughter and opt for an early retirement out of shame ;)

Erm, so back to the sex toy question. It seems to me the Griswold/Baird/Lawrence line of cases would provide substantial backing to reverse the Eleventh Circuit's decision, even if they don't necessarily compel it (I think an appropriate reading of the penumbrical privacy right does compel it, but I'm one of those evil judicial activist types. I say this with a healthy heaping of sarcasm, given that any good libertarian will point out that the Tenth Amendment means any right not specifically withheld from us in the Constitution (e.g., privacy) is granted). So the question probably comes down to: do any of Scalia/Thomas/Roberts/Alito/Kennedy make regular use of sex toys? If so, the law's probably as good as gone ;) Personally, I could totally see Scalia as a sex toy kind of man... hehehe

But, again, it's been too long since I've had the pleasure of sitting through one of Professor Strauss' con law courses. Boy I really do miss law school...

Hmm. I wonder what the court would say about a law banning Tupperware-style sex toy parties where it's you and your friends getting together in the home and not "in public."

Oops.. should have finished reading the opinion first. Duh. The statute did prohibit Tupper-ware style parties. However, the court seemed to skim right over the difference between those and retail stores, claiming that all commerce was inherently public.

So I guess you can still give sex toys away to your friends but you can't sell them, even in the privacy of your own home.

Of course, once the Court went to "rational basis" review, you pretty much knew it was over...

Eisenstadt included the "bear and beget" language because Roe was winding its way through the lower courts. This is known as "burying bones;" when another case is up on the docket, you look back a term or two and lo! there is language needed for the result you want.

For strict constructionalists, there isn't necessarily a right to sell sex toys. Commercial transactions are not given very much protection at all, especially when they fall under health/safety/welfare regulations.

There would, however, be the right to possess and use one - intimate sexual relations under the "right of association" and all (presumably, if you can use one in a married relationship, you can use them outside of one).

Can't help but think that a better lawyer wouldn't have framed this in terms of better orgasms, but in terms of sexual health as a component of medical health. Doctors who treat sexual dysfunction prescribe or recommend all sorts of devices to treat the woman's problem. Many therapies require both couples to participate.

Scalia could take a cue from his daughter and opt for an early retirement out of shame

I'd rather he wait until after the election, assuming the Republican nominee is Giuliani. I know Giuliani promised constructionist judges, but such promises tend to be forgotten after the primaries are over.

Alon, I'd also rather he wait until after the election, but much more out of hope that Obama or someone similar will occupy the White House when he does -- who knows if Giuliani will appoint Scalia clones (of course, we can always hope for another Souter), given his recent pathetic pandering to the radical right wing.

If Obama is running for President, I am SO registering to vote. As it's stood since I was 18, there's been nobody I've wanted to vote for. So I didn't vote at all.

Red, he is!! He officially announced last Saturday. Register Democrat and sign up for the campaign!!

I'm so psyched. He'll be in LA Tuesday. Can'twaitcan'twaitcan'twaitcan'twait!

Honestly, I don't trust Obama here much more than I do Giuliani. And conversely, if I were anti-choice, I wouldn't trust Giuliani's promise one bit, and would still campaign for Brownback.

Justice Stevens is turning 87 in April. According to actuarial tables, he has another four years or so in him. There's about a 13% chance of him dying in a year.

I imagine that Ginsberg won't retire until there's another woman on the Court.

Don't hope for another Souter. He came shortly after the Bork nomination and had been a federal judge for less than a year. At this point, conservatives are looking for loooong track records before putting someone on the Court and believe they have the ability to overcome Borking. Alito's confirmation, given his 15 year conservative track record, was a huge victory for the conservative base.

If/when Roe is overturned, abortion will not be illegal in this country - it will just be a state-determined issue.

At this point, conservatives are looking for loooong track records before putting someone on the Court and believe they have the ability to overcome Borking. Alito's confirmation, given his 15 year conservative track record, was a huge victory for the conservative base.

Don't forget the major election shift post-Alito. I'm super hopeful that what the conservatives want won't make a shit's worth of difference next nom around...

The election shift was about the war and the minimum wage, not about abortion, the support for which is eroding.

I can't even begin to tell you how subjugated my dildo feels. It's sad.

The Dems have a very narrow hold on the Senate. Moreover, the losses for the Republicans were statistically average for a six-year sitting President. (Usually, the party in control of the White House loses a lot during the sixth year -it's more of an emotional reaction than anything else.)

Look beyond the Supreme Court. Bush has appointed a LOT of people to circuit courts - and those are the people who, ten years from now, will be up for the S. Ct.