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Are Sex Toys the Next Battleground in the Culture Wars?

On March 21st, the mayor and City Council of Sandy Springs, GA, lifted a ban on the sale of “devices designed or marketed for the stimulation of human genital organs.”

Sharon Kraun, the city’s communications director, states, “With the repeal, our code now matches up with state law regarding adult devices by not prohibiting the sale of such devices.”

The original ban targeted what were identified as “Obscenity and Related Offenses” and enumerated the applicable “obscene material[s]” as:

(a) A person commits the offense of distributing obscene material when the following occurs:

(1) He sells, rents or leases any obscene material of any description, knowing the obscene nature thereof, or offers to do so, or possesses such material with the intent to do so, provided that the word “knowing,” as used in this section, shall be deemed to be either actual or constructive knowledge of the obscene contents of the subject matter;

(2) A person has constructive knowledge of the obscene contents if he has knowledge of facts which would put a reasonable and prudent person on notice as to the suspect

The ordinance was adopted in 2005 when Sandy Springs, a fashionable suburb north of Atlanta, was incorporated.  It basically banned the sale of sexual devices unless the customer had a bona fide medical, scientific, educational, legislative, judicial or law enforcement purpose.  Ordinary residents were barred from purchasing sex toys.  In 2014, two local residence, Melissa Davenport and Marshall Henry, challenged the ordinance.

Davenport suffers from Multiple Sclerosis (“MS”).  She and her husband, Mark, have been married for 24 years and, in 2003, the Davenports had largely ceased having sexual relations due to worsening of her condition.  Her complaint charged: “While no medical practitioner or psychiatrist has prescribed or advised Davenport to use sexual devices barred by Sandy Spring Ordinance, she and her husband have found that such devices significantly enhance their sexual intimacy. She credits the devices with saving her marriage.”

Henry’s compliant states that he “is a bisexual man and an artist” who has sought to buy sexual toys in Sandy Springs.  He was unable to purchase such devices for “private, intimate sexual activity” and to use in his art work.  Compounding this issue, he was prohibited from publicly displaying and selling his artwork containing the banned sexual devices.

Perhaps the weirdest aspect of this case involves the twists and turns faced in the courts.  In August 2016, Atlanta’s 11th Circuit Appeals Court upheld the ordinance.  As the Atlanta Journal Constitution reported, it “had to follow a precedent it set in 2004 when it upheld a similar sex-toy ban in Alabama.”  The case takes a strange turn: “But the judges said they now believe the Alabama case was wrongly decided, and they encouraged the Sandy Springs plaintiffs to ask the entire 11th Circuit court to reconsider the issue and set a new precedent.”  In March 2017, “the circuit court threw out the previous ruling on and agreed to re-hear the case.”  Shortly thereafter, the city of Sandy Springs revised the ordinance.

***

Neil Gorsuch’s confirmation to the Supreme Court, replacing Antonio Scalia, will have many anticipated and unanticipated consequences.  His pro-corporate, anti-abortion and anti-gay-marriage stands was considered during his Senate confirmation hearings.  However, little attention was given to his likely stand on private sexual practice, particularly involving sex toys.

Since the 1960s, the Supreme Court significantly expanded the sphere of personal privacy concerning sexual practice.  A handful of key decisions outline this shift in the legal framework:  Griswold v. Connecticut (1965) granted married couples the right to purchase and possess contraception materials; Loving v. Virginia (1967) gave interracial couples the right to marry; Eisenstadt v. Baird (1972) extended the right to acquire and use contraceptives to unmarried people; and Roe v. Wade (1973) guaranteed a woman the right to terminate her pregnancy.

More recently, Lawrence v. Texas (2003) overturned Bowers v. Hardwick (1986) and extending constitutional privacy protections to adults who engage in private, consensual sodomy; U.S. v. Windsor (2013) ruled the 1996 Defense of Marriage Act (DOMA) was unconstitutional; Obergefell v Hodges (2015) legalized gay marriage; and Whole Woman’s Health v. Hellerstedt (2016) overturned a Texas law restricting the delivery of abortion services.  How these, among other rulings, will stand with the addition of a strict conservative to the Court remains to be seen.

The status of sex paraphernalia is an open question.  It involves the private use and commercial sale of sex toys — or what some call “sex aids” – and has long been a subset of state and local regulation of “obscene” materials.  Traditionally, anti-obscenity statutes have involved the regulation of the sale, distribution, advertisement and private possession of sexual material.  Such regulation was justified by a government’s ostensible duty to protect the health, safety and welfare – including morality, values – of the citizens.

Two key Court decision have shaped such regulations.  In Roth v. U.S. (1957), it found that “sex and obscenity are not synonymous ….”   It found that obscene works were not entitled to constitutional protection.  The decision established the principles of (i) community standards and (ii) considering the work as a whole. It went further, noting that, “Sex, a great and mysterious motive force in human life, has indisputably been a subject of absorbing interest to mankind through the ages; it is one of the vital problems of human interest and public concern.”

In Miller v. California (1973), the meaning of obscenity was further refined.

One traditional evaluation criteria — whether a work was “utterly without redeeming social importance” — was revised.  It was now determined by three factors: (i) whether the average person, applying contemporary community standards, would find that the work — taken as a whole – appealed to the prurient interest; (ii) whether the work depicts or describes sexual practice in a patently offensive manner and (iii) whether the work has serious literary, artistic, political or scientific value.

States and local jurisdictions have long claimed the power to regulate and protect a community’s moral order and, thus, restrict if not eliminate non-procreative sexual activities.  They asserted this right by classifying sex toys as a form of obscenity, thus constitutional protected.

The Virginia Code suggests how this is played out. Title 18.2-374 makes it unlawful for any person to “publish, sell, rent, lend, transport in intrastate commerce, distribute, or exhibit any obscene item items “useful primarily for the stimulation of the human sexual organs.”  A first offense carries a sentence of up to 12 months in jail and/or a fine of not more than $2,500; a subsequent conviction carries a sentence of between one and five years in prison, or up to 12 months in jail and/or a fine of $2,500.

 

States and localities claim the authority to regulate “obscene” businesses because they have “secondary effects” of the community.  Such venues include theatres showing adult movies, adult bookstores, strip clubs featuring nude dancing and/or selling alcohol, and sex toy shops.  Governments claim that such businesses increase crime, decrease property values and have a negative impact on a neighborhood.  Strick zoning ordinances of “sexually oriented business” (SOB) have been used to either block such business or set limits (e.g., 500 or 1,000 feet) to where such a business can be located vis-a-vis a residential dwelling, church, park or school.

***

Do adult Americans have a “right” to sex?  Once Americans had a right to own slaves; today they have a right to own guns.  They also have a right to vote, to drink alcoholic beverages and have consensual sex with just about any age-appropriate person they want to, no matter what gender, race, nationality or sexual proclivity.  The courts seem never to have considered whether Americans have a “right” to sexual pleasure.

The U.S. courts seem split on how to interpret Lawrence in term of individual privacy and the acquisition and use of sex aids.  Two Appellate Courts offer fundamentally different interpretations of the decision.

The 5th Circuit Court found in Reliable Consultants, Inc. v. Earle (2008), a Texas statute prohibiting the sale of sex toys violated the 14th Amendment.  In 2007, Ted Cruz, then the Texas solicitor general, supported the of state’s ban on the sale and distribution of sex toys. “There is no substantive-due-process right to stimulate one’s genitals for non-medical purposes unrelated to procreation or outside of an interpersonal relationship,” he argued.

The 11th Circuit Court found in favor Alabama’s Anti-Obscenity Enforcement Act (1998) that sought to end nude dancing in parts of Madison County; it was not originally intended to be a ban on the sale of sex toys.  Nevertheless, it prohibited “the pursuit of orgasms by artificial means for their own sake is detrimental to the health and morality of the State.” The original suit was brought over the Love Stuff store of Hoover, AL, claiming that banned the sale or “the gratuitous distribution of” sex toys, not the private “use,” was unconstitutional.

Under Lawrence, “Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. . . [and] presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.”  However, Justice Scalia dissented in Lawrence, arguing that expanded personal privacy would lead to the end of laws against “bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity.”

Now, with Gorsuch occupying Scalia’s old seat, one can only anticipate the worst outcome if these cases finally come before the Supreme Court.

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David Rosen is the author of Sex, Sin & Subversion:  The Transformation of 1950s New York’s Forbidden into America’s New Normal (Skyhorse, 2015).  He can be reached at drosennyc@verizon.net; check out www.DavidRosenWrites.com.

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