Flanigan's Enters., Inc. of Ga. v. City of Sandy Springs

• Decision Date: 02 August 2016
• Docket Number: No. 14-15499,14-15499
• Citation: 831 F.3d 1342
• Parties: Flanigan's Enterprises, Inc. of Georgia, Fantastic Visuals, LLC, Plaintiffs-Appellants, Melissa Davenport, Marshall G. Henry, Intervenors-Plaintiffs-Appellants, v. City of Sandy Springs, Georgia, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

831 F.3d 1342

Flanigan's Enterprises, Inc. of Georgia, Fantastic Visuals, LLC, Plaintiffs-Appellants,

Melissa Davenport, Marshall G. Henry, Intervenors-Plaintiffs-Appellants,

v.City of Sandy Springs, Georgia, Defendant-Appellee.

No. 14-15499

United States Court of Appeals, Eleventh Circuit.

August 2, 2016

Cary Stephen Wiggins, Wiggins Law Group, Atlanta, GA, for Plaintiffs-Appellants.

Cary Stephen Wiggins, Wiggins Law Group, Gerald Richard Weber, Jr., Law Offices of Gerry Weber, LLC, Atlanta, GA, Adam Brett Wolf, Peiffer Rosca Wolf Abdullah Carr & Kane, LLP, San Francisco, CA, for Intervenors-Plaintiffs-Appellants.

Scott D. Bergthold, Bryan Dykes, Law Office of Scott D. Bergthold, PLLC, Chattanooga, TN, Harvey S. Gray, Gray Rust St. Amand Moffett & Brieske, LLP, Atlanta, GA, for Defendant-Appellee.

Before HULL, WILSON, and ANDERSON, Circuit Judges.

WILSON

, Circuit Judge:

In this appeal, we review the district court's dismissal of two complaints that challenge the constitutionality of a municipal ordinance prohibiting the sale, rental, or lease of obscene material. After the benefit of briefing and oral argument, we conclude that the Fourteenth Amendment Due Process Clause claim is foreclosed by our prior holding in Williams v. Attorney General (Williams IV ), 378 F.3d 1232 (11th Cir. 2004)

, and the district court properly entered judgment on the pleadings for the City of Sandy Springs as to Intervenor-Appellant Henry's First Amendment claims that the law burdens his artistic expression. The district court committed no reversible error as to any other claim properly raised on appeal. Accordingly, we affirm.

I

On April 21, 2009, the City of Sandy Springs, Georgia (the City) enacted into law several provisions that, inter alia , prohibit the commercial distribution of sexual devices within the City. Multiple adult entertainment establishments and other businesses affected by the provisions sued the City in response. In this severed portion of that litigation, Plaintiffs-Appellants Flanigan's Enterprises, Inc. of Georgia (Flanigan's) and Fantastic Visuals, LLC (Inserection) (collectively, the Plaintiffs), as well as Intervenors-Appellants Melissa Davenport and Marshall Henry (collectively, the Intervenors), brought, in relevant part, a Fourteenth Amendment Due Process Clause challenge to Ordinance 2009-04-24 (the Ordinance), codified at section 38-120 of the City's Code of Ordinances.¹ Section 38-120 criminalizes the commercial distribution of obscene material and defines “[a]ny device designed or marketed as useful primarily for the stimulation of human genital organs” as obscene. Sandy Springs, Ga., Code of Ordinances ch. 38, § 38-120(a), (c) [hereinafter § 38-120].²

Inserection is an adult bookstore in Sandy Springs that sells sexually explicit materials and items, including sexual devices. Davenport suffers from multiple sclerosis and uses sexual devices with her husband to facilitate intimacy. She seeks to purchase sexual devices in Sandy Springs for her own use, as well as to sell sexual devices to others in Sandy Springs who suffer from the same or a similar condition. Henry is an artist who uses sexual devices in his artwork. He seeks to purchase sexual devices in Sandy Springs for his own private, sexual activity and for use in his artwork, as well as to sell his artwork in Sandy Springs.

After the Intervenors entered the litigation and filed their complaint, the City filed an answer and moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure

. The district court granted the City's motion and entered an order upholding the Ordinance against each challenge. The Plaintiffs and the Intervenors together filed a timely notice of appeal, arguing that the district court erred in entering judgment in favor of the City.

II

We review de novo the district court's entry of judgment on the pleadings pursuant to Rule 12(c)

. Horsley v. Rivera , 292 F.3d 695, 700 (11th Cir. 2002). “Judgment on the pleadings under Rule 12(c) is appropriate when there are no material facts in dispute, and judgment may be rendered by considering the substance of the pleadings and any judicially noticed facts.” Id. In reviewing whether judgment was appropriately entered, “we accept the facts in the complaint as true and we view them in the light most favorable to the nonmoving party.” Hawthorne v. Mac Adjustment, Inc. , 140 F.3d 1367, 1370 (11th Cir. 1998). A complaint may only be dismissed under Rule 12(c) if “it is clear that the plaintiff would not be entitled to relief under any set of facts that could be proved consistent with the allegations.” See

Horsley , 292 F.3d at 700.

III

The Intervenors and Inserection (collectively, the Appellants) argue that the Ordinance is unconstitutional because it violates the Due Process Clause of the Fourteenth Amendment.³ The Fourteenth Amendment provides: “No State shall ... deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1

. The Supreme Court has long held that the Due Process Clause contains a substantive component that “bar[s] certain government actions regardless of the fairness of the procedures used to implement them.” See, e.g. , County of Sacramento v. Lewis , 523 U.S. 833, 840, 118 S.Ct. 1708, 1713, 140 L.Ed.2d 1043 (1998) (internal quotation marks omitted). The Appellants contend that they have a fundamental right to engage in acts of private, consensual sexual intimacy, and that the Ordinance burdens this right. The City responds that this claim is foreclosed by our prior holding in Williams IV.

In Williams IV

, the American Civil Liberties Union (ACLU) brought a constitutional challenge against an Alabama statute that prohibited the sale of sexual devices. See 378 F.3d at 1233. The ACLU claimed that the law violated a fundamental right to sexual privacy, which includes a right to use the devices in the privacy of one's home. See

id. at 1235. We concluded that the Supreme Court's then-recent decision in Lawrence v. Texas⁴ identified no such fundamental right and, utilizing the Washington v. Glucksberg⁵ analysis for defining and assessing newly asserted fundamental rights, we concluded that our history and tradition did not support assigning constitutional protection to a right to sell, buy, and use sexual devices. See

Williams IV , 378 F.3d at 1236, 1239–45. Consequently, we held that the Due Process Clause does not contain a right to buy, sell, and use sexual devices, and reversed the district court's ruling to the contrary. See

id. at 1250.

The Appellants in this case challenge a law similar to the one at issue in Williams IV

and present us with, effectively, the same arguments against its enforcement. Under this circuit's prior panel precedent rule, “a prior panel's holding is binding on all subsequent panels unless and until it is overruled or undermined to the point of abrogation by the Supreme Court or by this court sitting en banc.” In re Lambrix , 776 F.3d 789, 794 (11th Cir. 2015) (per curiam) (internal quotation marks omitted). The Appellants urge this panel to overrule Williams IV in light of the Supreme Court's subsequent decisions in United States v. Windsor⁶ and Obergefell v. Hodges.⁷ Their strongest argument is that time has shown that Williams IV erred in concluding Lawrence did not announce a constitutional right to engage in acts of private, consensual sexual intimacy, and the Court has changed its analysis of privacy-based constitutional rights such that the remainder of Williams IV cannot stand.

To the extent Lawrence

was ambiguous, the Appellants explain, Windsor clarified that Lawrence announced a new constitutional right and that that right could be implicated directly or indirectly. In Windsor

, the Court assessed the constitutionality of the Defense of Marriage Act (DOMA), a federal law that, in relevant part, amended the Dictionary Act to define “marriage” as “a legal union between one man and one woman as husband and wife.” See

Windsor , 133 S.Ct. at 2683 ; 1 U.S.C. § 7. The Court explained that DOMA's definition was unconstitutional, inter alia , because it impermissibly interfered with the federal constitutional right to “[p]rivate, consensual sexual intimacy”—a right the Court indicated it had articulated in Lawrence. See

Windsor , 133 S.Ct. at 2692. This holding made clear that the Texas sodomy statute and DOMA's definitional provision implicated the same liberty interest and that the scope of this liberty interest could extend to invalidate a law that did not directly regulate sexual conduct. Although DOMA did not criminalize any sexual act—it merely supplied a definition to inform other laws—the Court still held it to be unconstitutional because the differentiation it imposed “demean[ed] the couple, whose moral and sexual choices the Constitution protects .” Id. at 2694 (emphasis added) (citing Lawrence , 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 ). Thus, the Appellants conclude, Windsor clarified not only that Lawrence announced a right to “[p]rivate, consensual sexual intimacy,” see

id. at 2692, but also that this liberty interest may be infringed by laws that seek to control moral or sexual choices, see

id. at 2694.⁸ For this reason, the Appellants argue that we erred in ruling that Lawrence did not create a “due process right of consenting adults to engage in private intimate sexual conduct.” See

Williams IV , 378 F.3d at 1236.⁹

Additionally, the Appellants contend, Williams IV

cannot stand in light of the Supreme Court's new instruction on how to define and analyze privacy-based rights. In Obergefell, the Court explained that a refined Glucksberg analysis applies to define privacy-based rights because Glucksberg 's requirement that rights “be defined in a most circumscribed manner” was appropriate for the context in which that test arose but was “inconsistent with the approach th[e] Court ha[d] used in discussing other fundamental rights, including...