240 F.3d 944 (11th Cir. 2001), 98-01938, Williams v Pryor

Docket Nº:D. C. Docket No. 98-01938-CV-S-NE
Citation:240 F.3d 944
Party Name:SHERRI WILLIAMS, B. J. BAILEY, et al., Plaintiffs-Appellees, v. BILL PRYOR, in his official capacity as the Attorney General of the State of Alabama, Defendant-Appellant. No. 99-10798
Case Date:January 31, 2001
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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240 F.3d 944 (11th Cir. 2001)

SHERRI WILLIAMS, B. J. BAILEY, et al., Plaintiffs-Appellees,


BILL PRYOR, in his official capacity as the Attorney General of the State of Alabama, Defendant-Appellant.

No. 99-10798

D. C. Docket No. 98-01938-CV-S-NE

United States Court of Appeals, Eleventh Circuit

January 31, 2001

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the Northern District of Alabama


Before ANDERSON, Chief Judge, BLACK and HALL[*], Circuit Judges.

BLACK, Circuit Judge:

The opinion filed in this case on October 12, 2000, is withdrawn, and the following opinion is substituted in its place. The petition for rehearing filed by Appellees is otherwise DENIED.

In 1998, a statute enacted by the legislature of the State of Alabama amended the obscenity provisions of the Alabama Code to make the distribution of certain defined sexual devices a criminal offense. Vendors

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and users of such devices filed a constitutional challenge to the statute. The district court declined to hold the statute violated any constitutional right but determined the statute was unconstitutional because it lacked a rational basis. The court permanently enjoined enforcement of the statute. We reverse and remand.


The case was tried by the district court from the parties' extensive stipulated facts, reprinted in full in the district court's published opinion. See Williams v. Pryor, 41 F.Supp.2d 1257, 1261-1273 (N.D. Ala. 1999).

After the 1998 amendment, the Alabama Code obscenity provisions provide, in pertinent part, the following:

It shall be unlawful for any person to knowingly distribute, possess with intent to distribute, or offer or agree to distribute any obscene material or any device designed or marketed as useful primarily for the stimulation of human genital organs for any thing of pecuniary value.

Id. at 1259 (quoting Ala. Code § 13A-12-200.2(a)(1) (Supp. 1998)).1 A first violation is a misdemeanor punishable by a maximum fine of $10,000 and up to one year of jail or hard labor; a subsequent violation is a class C felony. See id. The State has conceded the statute's proscription of the distribution of sexual devices in Alabama does not apply to devices acquired as gifts or by purchases in another state. See id. at 1265. The statute also does not restrict possession or use of a sexual device by an individual, but only the commercial distribution of the devices. See id.

The plaintiffs-appellees are vendors or users of sexual devices. See id. at 1261-65. The stipulated facts contain two expert opinions that describe the standard medical and psychological therapeutic uses of sexual devices, including their frequent prescription in marital and non-marital sexual or relationship counseling-often as a necessary component for successful therapy. See id. at 1265-73. The facts also describe a number of other sexual products the distribution of which is not prohibited by the statute, such as ribbed condoms or the virility drug Viagra. See id. at 1265.

The district court performed a careful evaluation of the plaintiffs' constitutional challenges. After considering Supreme Court precedent, the court determined the statute does not implicate previously recognized fundamental constitutional rights. See id. at 1275-84. The court also declined to extend those rights to provide a fundamental right to the use of sexual devices, a right that would be burdened by the statute. See id. The district court next reviewed the statute under rational basis scrutiny and concluded the statute lacked a rational basis. See id. at 1284-1293. The court accordingly held the statute unconstitutional and issued a permanent injunction against its enforcement. See id. at 1293.

We review de novo the district court's decision on the constitutionality of a statute. See, e.g., Mason v. Florida Bar, 208 F.3d 952, 955 (11th Cir. 2000); David Vincent, Inc. v. Broward County, 200 F.3d 1325, 1335 (11th Cir. 2000); United States v. Hester, 199 F.3d 1287, 1289 (11th Cir. 2000).


Whether a statute is constitutional is determined in large part by the level of scrutiny applied by the courts. Statutes that infringe fundamental rights, or that make distinctions based upon suspect classifications such as race or national origin, are subject to strict scrutiny, which requires that the statute be narrowly tailored to achieve a compelling government interest. See, e.g., Reno v. Flores, 507

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U.S. 292, 301-02, 113 S.Ct. 1439, 1447 (1993); Adarand Constructors v. Pena, 515 U.S. 200, 227, 115 S.Ct. 2097, 2113 (1995). Most statutes reviewed under the very stringent strict scrutiny standard are found to be unconstitutional. But see United States v. Virginia, 518 U.S. 515, 532 n.6, 116 S.Ct. 2264, 2275 n.6 (1995) ("strict scrutiny . . . is not inevitably fatal in fact") (quotation omitted). On the other hand, "if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the [law] so long as it bears a rational relation to some legitimate end." Romer v. Evans, 517 U.S. 620, 632, 116 S.Ct. 1620, 1627 (1996); see also, e.g., Washington v. Glucksberg, 521 U.S. 702, 728, 117 S.Ct. 2258, 2271 (1997); FCC v. Beach Communications, Inc., 508 U.S. 307, 314, 113 S.Ct. 2096, 2101 (1993). Almost every statute subject to the very deferential rational basis scrutiny standard is found to be constitutional. Cf., e.g., Panama City Med. Diag. Ltd. v. Williams, 13 F.3d 1541, 1546-47 (11th Cir. 1994) (discussing "arguable" rational bases for statute). We consider first the district court's determination that the statute is unconstitutional because it fails rational basis scrutiny.

A. Rational Basis Review

Rational basis scrutiny is a highly deferential standard that proscribes only the very outer limits of a legislature's power. A statute is constitutional under rational basis scrutiny so long as "there is any reasonably conceivable state of facts that could provide a rational basis for the" statute. FCC v. Beach Communications, Inc., 508 U.S. 307, 314, 113 S.Ct. 2096, 2101 (1993) (emphasis added). The Supreme Court has explained that:

Where there are plausible reasons for Congress' action, our inquiry is at an end. This standard of review is a paradigm of judicial restraint. . . .

On rational-basis review, . . . a statute . . . comes to us bearing a strong presumption of validity, and those attacking the rationality of the [statute] have the burden to negative every conceivable basis which might support it. Moreover, because we never require a legislature to articulate its reasons for enacting a statute, it is entirely irrelevant for constitutional purposes whether the conceived reason . . . actually motivated the legislature. . . . In other words, a legislative choice is not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data. Only by faithful adherence to this guiding principle of judicial review of legislation is it possible to preserve to the legislative branch its rightful independence and its ability to function.

Id. at 313-15, 113 S.Ct. at 2101-02 (citations and quotations omitted) (emphasis added). In addition, "the legislature must be allowed leeway to approach a perceived problem incrementally," even if its incremental approach is significantly over-inclusive or under-inclusive. Id. at 316, 113 S.Ct. at 2102; see also, e.g., Heller v. Doe by Doe, 509 U.S. 312, 321, 113 S.Ct. 2637, 2643 (1993); Haves v. City of Miami, 52 F.3d 918, 923 (11th Cir. 1995). Only in an exceptional circumstance will a statute not be rationally related to a legitimate government interest and be found unconstitutional under rational basis scrutiny.2

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The district court systematically considered whether the Alabama sexual devices distribution criminal statute has a rational basis. See 41 F.Supp.2d at 1284-1293. First, the court examined three interests it believed had been relied upon by the State: banning the public display of obscene material, banning "the commerce of sexual stimulation and auto-eroticism, for its own sake, unrelated to marriage, procreation, or familial relationships," and banning the commerce in obscene material. Id. at 1286-87. The district court concluded each of these interests was a legitimate interest the State constitutionally could pursue. See id. Second, the court considered whether prohibiting the distribution of sexual devices is rationally related to these legitimate interests. For each interest, the court concluded the law did not rationally advance the State's objective. See id. at 1288-93. With respect to public decency, the district court found the ban on the distribution of sexual devices to be "absolutely arbitrary" because "[i]nnumerable measures far short of an absolute ban on the distribution of sexual devices would accomplish the State's goals." Id. at 1288. The court also determined the ban was irrationally related to the interest in discouraging commerce in auto-eroticism because the ban, by its very terms, also interfered with the very sexual stimulation and eroticism related to marriage and procreation with which the State disclaimed any intent to interfere. See id. at 1288-90. Finally, the court concluded the statute was an irrational means of banning obscenity because Alabama "banned the distribution of all sexual devices in an effort to prohibit the few which may be found obscene." Id. at 1293. The court therefore held the statute failed rationally to advance any legitimate state interest and accordingly was unconstitutional. See id.

We conclude the district court erred in determining the statute lacks a rational basis. The State's interest in public morality is a legitimate interest rationally served by the statute. The crafting and safeguarding of public morality...

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