Williams v. King

• Decision Date: 15 March 2006
• Docket Number: No. CV 98-S-1938-NE.,CV 98-S-1938-NE.
• Citation: Williams v. King, 420 F.Supp.2d 1224 (N.D. Ala. 2006)
• Parties: Sherri WILLIAMS, et al., Plaintiffs, v. Troy KING, in his official capacity as the Attorney General of Alabama, Defendant.<SMALL><SUP>1</SUP></SMALL>
• Court: U.S. District Court — Northern District of Alabama

420 F.Supp.2d 1224

Sherri WILLIAMS, et al., Plaintiffs, v.Troy KING, in his official capacity as the Attorney General of Alabama, Defendant.¹

No. CV 98-S-1938-NE.

United States District Court, N.D. Alabama, Northeastern Division.

March 15, 2006.

Amy L. Herring, Amy L Herring, PC, Michael L. Fees, Fees & Burgess PC, Huntsville, AL, Mark J. Lopez, American Civil Liberties Union Foundation, New York, NY, for Plaintiffs.

Charles B. Campbell, Scott L. Rouse, William H. Pryor, Jr, Office of the Attorney General, Alabama State House, Courtney W. Tarver, Alabama Department of

Mental Health & Mental Retardation, Legal Division, Montgomery, AL, for Defendant.

CORRECTED MEMORANDUM OPINION

SMITH, District Judge.

This opinion marks the third occasion on which this court has been required to address substantive due process challenges to an Alabama statute that criminalizes the commercial distribution of "any device designed or marketed as useful primarily for the stimulation of human genital organs."²SeeWilliams v. Pryor,41 F.Supp.2d 1257(N.D.Ala.1999)("Williams I"), rev'd,240 F.3d 944(11th Cir.2001)("Williams II");see alsoWilliams v. Pryor,220 F.Supp.2d 1257(N.D.Ala.2002)("Williams III"), rev'd,378 F.3d 1232(11th Cir.2004)("Williams IV").As in prior opinions, this court will employ the term "sexual devices" as a shorthand replacement for the cumbersome statutory phrase "any device designed or marketed as useful primarily for the stimulation of human genital organs."

The plaintiffs are either vendors or users of sexual devices.Their complaint asserts that enforcement of the subject statute will impose an undue burden upon their "fundamental rights of privacy and personal autonomy" in violation of the Fourteenth Amendment's Due Process Clause.³Alternatively, plaintiffs allege that there is no rational relationship between a wholesale ban on the sale of all sexual devices and a proper legislative purpose.

PART ONE

Summary of Facts

The pertinent factual findings are based upon a stipulated evidentiary record that was spread at length in both of this court's previous opinions.⁴Those findings establish that sexual devices have many beneficial medical and psychological therapeutic uses that are recognized by health-care professionals and the federal Food and Drug Administration,⁵ including "frequent prescription in marital and non-marital sexual or relationship counseling—often as a necessary component for successful therapy."⁶

PART Two

Prefatory Issues

The Supreme Court jurisprudence that applies to the issues of this case is extraordinarily complex and subtle.It defies easy summation.There simply is no easy grouping of cases that comfortably conveys a consistent concept of either the constitutional basis for or content of plaintiffs' asserted "rights of privacy and personal autonomy."Rather, the doctrinal underpinnings of those allegedly "fundamental rights" have been cobbled together from a diverse collection of cases, resulting in a rickety structure.Moreover, debate on the core concepts is far from being closed, either within the Supreme Court or American society.Therefore, in order to see more clearly how this case should now, on the third attempt, be decided, it may be helpful to trace from whence it has come.As Oliver Wendell Holmes, Jr., remarked, the "rational study of law is still to a large extent the study of history" because, without resort to the past, "we cannot know the precise scope of rules which it is our business to know" when resolving contemporary controversies.⁷A backward look at the evolution of particular principles and, as here, their application in a specific case, "is a part of the rational study, because it is the first step toward an enlightened scepticism, that is, toward a deliberate reconsideration of the worth of those rules."⁸Such exercises must be undertaken with caution, however, because clarity of hindsight does not ensure an equally acute vision of the future.⁹Holmes's description of the evolution of common law actions in tort describes precisely, by way of analogy, the present predicament:

The law did not begin with a theory.It has never worked one out.The point from which it started and that at which ... it has arrived, are on different planes.In the progress from one to the other, it is to be expected that its course should not be straight and its direction not always visible.All that can be done is to point out a tendency, and to justify it.¹⁰

A.Fundamental Rights and Liberties

The definition of those rights and liberties deemed to be so important that they are characterized as "fundamental"—and, therefore, beyond the power of popularly-elected legislative assemblies to infringe,¹¹ except in only the most compelling or exigent circumstances ¹²—begins with the first ten amendments to the Constitution, generally referred to as the "Bill of Rights."¹³The first eight of those amendments define a hierarchy of rights that the founding generation considered essential to the preservation of individual liberty, justice, and freedom from arbitrary governmental intrusions into, as well as purposeless restraints upon, the private lives of citizens.¹⁴Even so, the history of the proposal, adoption, and ratification of those amendments is perfectly clear on this point: they were intended to provide protection against acts of only the new, national government.¹⁵

Beginning in 1897, however, the Supreme Court embarked on a slow course of gradually "incorporating" some of the specific rights enumerated in the first eight amendments into the Fourteenth Amendment.¹⁶The unifying principle giving order and coherence to a very long line of "selective incorporation"cases is this: only those rights deemed essential to the conceptions of liberty or justice were absorbed into the Fourteenth Amendment's Due Process Clause.¹⁷Through this process, the Court has determined over time that, with only a few exceptions, most of the provisions of the Bill of Rights meet the definition of "fundamental" liberties and, thus, act as restraints against oppressive and arbitrary actions by state and local governments, as well as the federal.¹⁸

Beyond the specific provisions of the Bill of Rights thus absorbed into and protected by the Fourteenth Amendment lies a constitutional quagmire, rife with soft and slippery doctrinal ground, jurisprudential quicksand, and subtle, semantical snares for the unwary traveler.This is the domain of those rights that—even though lacking an explicit textual basis in the Constitution—the Supreme Court has recognized as possessing a value so essential to the preservation of individual "liberty" that they have been characterized as "fundamental."They are freedoms deemed "implicit in the concept of ordered liberty,"¹⁹ inherent in human nature, and consequently inalienable.

The specific liberty interests that fall under the heading of "fundamental rights" have varied over the course of the American experiment in democratic self-government.For example, rights of "property" were of paramount importance during the ante-bellum period, and "freedom of contract" held sway for seventy years after the Civil War.With the decline of "economic substantive due process" following the head-on collision of the Hughes Court with Franklin Roosevelt's "New Deal" programs, however, those interests lost primacy.From then through the remainder of the Twentieth Century, personal liberty interests have assumed the position of first importance.

Thus far, the Supreme Court has characterized the following, non-textual liberty interests as "fundamental" and, as such, rights that should prevail if in conflict with governmental authority or other, less valued, liberties:²⁰(i) the right to marry;²¹(ii) ) the right to procreate;²²(iii) the right to purchase and use contraceptives;²³(iv) the qualified right to an abortion;²⁴(v) the right to custody of one's children;²⁵(vi) the right to keep a family together;²⁶(vii) the right of parents to direct the education and upbringing of their children;²⁷(viii) the right to marital privacy;²⁸(ix) the right to bodily integrity;²⁹(x) the right to refuse unwanted, lifesaving, medical treatment;³⁰(xi) the right to travel within the United States;³¹(xii) the right to vote;³²(xiii) the qualified right to control the dissemination of private information;³³(xiv) the right of all persons to equal access to the courts;³⁴ and arguably (xv) the right of adults to engage in private, consensual, non-commercial, sexual activity common to a homosexual lifestyle.³⁵

B.Standards for "Substantive Due Process" Review of State Statutes

The Fourteenth Amendment's Due Process Clause provides that "No State shall . . . deprive any person of life, liberty, or property, without due process of law."U.S. Const. amend. XIV, § 1(1868).In addition to the obvious purpose of guaranteeing fair procedures,³⁶ the clause has been construed as including a substantive dimension, requiring that legislation be fair and reasonable in content, and promote legitimate governmental objectives.³⁷"In other words, substantive due process looks to whether there is a sufficient justification for the government's action.Whether there is such a justification depends very much upon the level of scrutiny used."³⁸

1.Rational Basis Test

If a statute impacts only business or economic interests, and does not implicate fundamental rights or employ "suspect criteria" to define the class of persons benefitted or burdened by the legislation,³⁹ then the state's justification for the law is evaluated by a standard known as the "rational basis test."This standard requires courts to compare the content of a statute to its purported purposes, and to determine whether the law constitutes a reasonable means of accomplishing (i.e.,"is rationally related to") a legitimate end or purpose of state government.The salient feature of this test is that it is "a highly...