378 F.3d 1232 (11th Cir. 2004), 02-16135, Williams v. Attorney General of Ala.

Docket Nº:02-16135.
Citation:378 F.3d 1232
Party Name:Sherri WILLIAMS, B.J. Bailey, Plaintiffs-Appellees, Betty Faye Haggermaker, et al., Plaintiffs, Alice Jean Cope, Jane Doe, Deborah L. Cooper, Benny Cooper, Dan Bailey, Jane Poe, Jane Roe, Plaintiffs-Appellees, v. ATTORNEY GENERAL OF ALABAMA, Defendant-Appellant, Tim Morgan, in his official capacity as the District Attorney of the County of Madison,
Case Date:July 28, 2004
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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378 F.3d 1232 (11th Cir. 2004)

Sherri WILLIAMS, B.J. Bailey, Plaintiffs-Appellees,

Betty Faye Haggermaker, et al., Plaintiffs,

Alice Jean Cope, Jane Doe, Deborah L. Cooper, Benny Cooper, Dan Bailey, Jane Poe, Jane Roe, Plaintiffs-Appellees,



Tim Morgan, in his official capacity as the District Attorney of the County of Madison, Alabama, Defendant.

No. 02-16135.

United States Court of Appeals, Eleventh Circuit

July 28, 2004

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Charles Brinsfield Campbell, Rouse, Scott Lee, Montgomery, AL, for Troy King.

Michael L. Fees, Fees & Burgess, P.C., Huntsville, AL, for Sherri Williams.

Mark J. Lopez, American Civil Liberties Union, New York City, for B.J. Bailey.

Amy Louise Herring, Huntsville, AL, for Alice Jean Cope, Deborah L. Cooper, Benny Cooper, Dan Bailey.

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

Before BIRCH, BARKETT and HILL, Circuit Judges.

BIRCH, Circuit Judge:

In this case, the American Civil Liberties Union ("ACLU") 1 invites us to add a new right to the current catalogue of fundamental rights under the Constitution: a right to sexual privacy. It further asks us to declare Alabama's statute prohibiting the sale of "sex toys" to be an impermissible burden on this right. Alabama responds that the statute exercises a time-honored use of state police power--restricting the sale of sex. We are compelled to agree with Alabama and must decline the ACLU's invitation.


Alabama's Anti-Obscenity Enforcement Act prohibits, among other things, the commercial distribution of "any device designed or marketed as useful primarily for the stimulation of human genital organs for any thing of pecuniary value." Ala.Code § 13A-12-200.2 (Supp.2003).

The Alabama statute proscribes a relatively narrow bandwidth of activity. It prohibits only the sale--but not the use, possession, or gratuitous distribution--of sexual devices (in fact, the users involved in this litigation acknowledge that they already possess multiple sex toys). The law does not affect the distribution of a number of other sexual products such as ribbed condoms or virility drugs. Nor does it prohibit Alabama residents from purchasing sexual devices out of state and bringing them back into Alabama. Moreover, the statute permits the sale of ordinary vibrators and body massagers that, although useful as sexual aids, are not "designed or marketed ... primarily" for that particular purpose. Id. Finally, the statute exempts sales of sexual devices "for a bona fide medical, scientific, educational, legislative, judicial, or law enforcement purpose." Id. § 13A-12-200.4.

This case, which is now before us on appeal for the second time, involves a challenge to the constitutionality of the Alabama statute. The ACLU, on behalf of various individual users and vendors of sexual devices, initially filed suit seeking to enjoin the statute on 29 July 1998, a month after the statute took effect. The ACLU argued that the statute burdens and violates sexual-device users' right to privacy

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and personal autonomy under the Fourteenth Amendment to the United States Constitution. 2

Following a bench trial, the district court concluded that there was no currently recognized fundamental right to use sexual devices and declined the ACLU's invitation to create such a right. Williams v. Pryor, 41 F.Supp.2d. 1257, 1282-84 (N.D.Ala.1999) (Williams I). The district court then proceeded to scrutinize the statute under rational basis review. Id. at 1284. Concluding that the statute lacked any rational basis, the district court permanently enjoined its enforcement. Id. at 1293.

On appeal, we reversed in part and affirmed in part. Williams v. Pryor, 240 F.3d 944 (11th Cir. 2001) (Williams II). We reversed the district court's conclusion that the statute lacked a rational basis and held that the promotion and preservation of public morality provided a rational basis. Id. at 952. However, we affirmed the district court's rejection of the ACLU's facial fundamental-rights challenge to the statute. Id. at 955. We then remanded the action to the district court for further consideration of the as-applied fundamental-rights challenge. Id. at 955.

On remand, the district court again struck down the statute. Williams v. Pryor, 220 F.Supp.2d 1257 (N.D.Ala.2002) (Williams III). On cross motions for summary judgment, the district court held that the statute unconstitutionally burdened the right to use sexual devices within private adult, consensual sexual relationships. Id. After a lengthy discussion of the history of sex in America, the district court announced a fundamental right to "sexual privacy," which, although unrecognized under any existing Supreme Court precedent, the district court found to be deeply rooted in the history and traditions of our nation. Id. at 1296. The district court further found that this right "encompass[es] the right to use sexual devices like the vibrators, dildos, anal beads, and artificial vaginas" marketed by the vendors involved in this case. Id. The district court accordingly applied strict scrutiny to the statute. Id. Finding that the statute failed strict scrutiny, the district court granted summary judgment to the ACLU and once again enjoined the statute's enforcement. Id. at 1307.

Alabama now appeals that decision. The only question on this appeal is whether the statute, as applied to the involved users and vendors, violates any fundamental right protected under the Constitution. 3 The proper analysis for evaluating this question turns on whether the right asserted by the ACLU falls within the parameters of any presently recognized fundamental right or whether it instead requires us to recognize a hitherto unarticulated fundamental right.


We review a summary judgment decision de novo and apply the same legal standard used by the district court. Nat'l Parks Conservation Ass'n v. Norton, 324 F.3d 1229, 1236 (11th Cir. 2003). Our de novo review begins with a discussion of the asserted right. Here, we reaffirm our conclusion in Williams II, 240 F.3d at 954, that no Supreme Court precedents, including

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the recent decision in Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), are decisive on the question of the existence of such a right. Because the ACLU is asking us to recognize a new fundamental right, we then apply the analysis required by Washington v. Glucksberg, 521 U.S. 702, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997). As we explain, we conclude that the asserted right does not clear the Glucksberg bar.

A. Asserted Right

The Due Process Clause of the Fourteenth Amendment provides that no State shall "deprive any person of life, liberty, or property without due process of law." The most familiar function of this Clause is to guarantee procedural fairness in the context of any deprivation of life, liberty, or property by the State. The users and vendors here do not claim to have been denied procedural due process. Instead, they rely on the Due Process Clause's substantive component, which courts have long recognized as providing "heightened protection against government interference with certain fundamental rights and liberty interests." Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49 (2000) (citation omitted).

The ACLU argues that the use of sexual devices is among those activities that, although not enumerated in the Constitution, are protected under the concept of substantive due process. According to the ACLU, the State of Alabama, through its prohibition on the commercial distribution of sex toys qua sex toys, has intruded into the most intimate of places--the bedrooms of its citizens--and the lawful sexual conduct that occurs therein. While the statute's reach does not directly proscribe the sexual conduct in question, it places--without justification--a substantial and undue burden on the ability of the plaintiffs to obtain devices regulated by the statute. By restricting sales of these devices to plaintiffs, Alabama has acted in violation of the fundamental rights of privacy and personal autonomy that protect an individual's lawful sexual practices guaranteed by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments of the United States Constitution.

Williams III, at 1261 (quoting the ACLU's amended complaint).

The ACLU invokes "privacy" and "personal autonomy" as if such phrases were constitutional talismans. In the abstract, however, there is no fundamental right to either. See, e.g., Glucksberg, 521 U.S. at 725, 117 S.Ct. at 2270 (fundamental rights are "not simply deduced from abstract concepts of personal autonomy"). Undoubtedly, many fundamental rights currently recognized under Supreme Court precedent touch on matters of personal autonomy and privacy. However, "[t]hat many of the rights and liberties protected by the Due Process Clause sound in personal autonomy does not warrant the sweeping conclusion that any and all important, intimate, and personal decisions are so protected." Id. at 727, 117 S.Ct. at 2271. Such rights have been denominated "fundamental" not simply because they implicate deeply personal and private considerations, but because they have been identified as "deeply rooted in this Nation's history and tradition and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed." Id. at 720-21, 117 S.Ct. at 2268 (internal citations and quotation marks omitted).

Nor, contrary to the ACLU's assertion, have the Supreme Court's substantive-due-process precedents recognized a free-standing "right to sexual privacy." The Court has been presented with...

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