Williams v. Morgan

• Decision Date: 14 February 2007
• Docket Number: No. 06-11892.,06-11892.
• Citation: 478 F.3d 1316
• Parties: Sherri WILLIAMS, B.J. Bailey, Alice Jean Cope, Jane Doe, Deborah L. Cooper, Benny Cooper, Dan Bailey, Jane Poe, Jane Roe, Plaintiffs-Appellants, Betty Faye Haggermaker, et al., Plaintiffs, v. Tim MORGAN, in his official capacity as the District Attorney of the County of Madison Alabama, Defendant, Troy King, in his official capacity as the Attorney General of Alabama, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

478 F.3d 1316

Sherri WILLIAMS, B.J. Bailey, Alice Jean Cope, Jane Doe, Deborah L. Cooper, Benny Cooper, Dan Bailey, Jane Poe, Jane Roe, Plaintiffs-Appellants Betty Faye Haggermaker, et al., Plaintiffs, v. Tim MORGAN, in his official capacity as the District Attorney of the County of Madison Alabama, Defendant Troy King, in his official capacity as the Attorney General of Alabama, Defendant-Appellee.

No. 06-11892.

United States Court of Appeals, Eleventh Circuit.

February 14, 2007.

Sharon M. McGowan, Mark J. Lopez, Am. Civ. Liberties Union Found., New York City, Michael L. Fees, Fees & Burgess, P.C., Huntsville, AL, for Plaintiffs-Appellants.

Kevin Christopher Newsome, Winfield J. Sinclair, Montgomery, AL, Amy Louise Herring, Huntsville, AL, for King.

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

Before DUBINA and WILSON, Circuit

Judges, and HODGES,^* District Judge.

WILSON, Circuit Judge:

This case comes to us for the third time, arising from a constitutional challenge to a provision of the Alabama Code prohibiting the commercial distribution of devices "primarily for the stimulation of human genital organs." Ala.Code § 13A-12-200.2(a)(1). The only question remaining before us is whether public morality remains a sufficient rational basis for the challenged statute after the Supreme Court's decision in Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003). The district court distinguished Lawrence and held, following our prior precedent in this case, Williams v. Pryor, 240 F.3d 944 (11th Cir.2001) (Williams II), that the statute survives rational basis scrutiny. Because we find that public morality remains a legitimate rational basis for the challenged legislation even after Lawrence, we affirm.

BACKGROUND

The American Civil Liberties Union ("ACLU")¹ filed suit on behalf of individual users and vendors of sexual devices² to enjoin enforcement of Ala.Code § 13A-12-200.2(a)(1), which prohibits the distribution of "any device designed or marketed as useful primarily for the stimulation of human genital organs."³ Plaintiffs in this case include both married and unmarried users of prohibited sexual devices, as well as vendors of sexual devices operating both in typical retail storefronts and in "tupperware"-style parties where sexual aids and novelties are displayed and sold in homes. The stipulated facts establish that sexual devices have many medically and psychologically therapeutic uses, recognized by healthcare professionals and by the FDA. The statute exempts sales of sexual devices "for a bona fide medical, scientific, educational, legislative, judicial, or law enforcement purpose." § 13A-12-200.4. Also, there are a number of other sexual products, such as ribbed condoms and virility drugs, that are not prohibited by the statute. The statute does not prohibit the use, possession, or gratuitous distribution of sexual devices. See § 13A-12-200.2 ("for anything of pecuniary value").

The ACLU has argued throughout this litigation that the statute burdens and violates sexual-device users' right to privacy and personal autonomy under the Fourteenth Amendment. Alternatively, it has argued that there is no rational relationship between a complete ban on the sale of sexual devices and a proper legislative purpose.

Our second opinion in this case (Williams IV) provides a thorough summary of the procedural history of the case:

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 II, 240 F.3d 944.] 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.

Williams v. Att'y Gen. of Ala., 378 F.3d 1232, 1234 (11th Cir.2004) (Williams IV).

In Williams IV we again reversed the judgment of the district court, holding that there was no pre-existing, fundamental, substantive-due-process right to sexual privacy triggering strict scrutiny. Id. at 1238. In so holding, we determined that Lawrence, which had been decided after the district court's decision in Williams III, did not recognize a fundamental right to sexual privacy. Id. Furthermore, we declined to recognize a new fundamental right to use sexual devices. Id. at 1250. With strict scrutiny off the table, we remanded the case for further proceedings consistent with the opinion. Id. We advised that on remand, the district court should "examine whether our holding in Williams II that Alabama's law has a rational basis (e.g., public morality) remains good law" after Lawrence overruled Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986). Id. at 1238 n. 9 (internal quotations omitted); see also id. at 1259 n. 25 (Barkett, J., dissenting) ("On remand, the district court must consider whether our holding in Williams II ... remains good law now that Bowers has been overruled."). We thus "save[d] for a later day" the question of whether public morality still serves as a rational basis for legislation after Lawrence. Id. at 1238 n. 9.

On remand, the district court decided "not to invalidate the Alabama law in question here simply because it is founded on concerns over public morality." Williams v. King, 420 F.Supp.2d 1224, 1250 (N.D.Ala.2006) (Williams V). In so concluding, the district court opined: "To hold that public morality can never serve as a rational basis for legislation after Lawrence would cause a `massive disruption of the social order,' one this court is not willing to set into motion." Id. at 1249-50 (quoting Lawrence, 539 U.S. at 590, 123 S.Ct. at 2491 (Scalia, J., dissenting)). The district court also addressed "whether this case fits squarely within the mold of Lawrence, such that Lawrence's holding—that public morality was not a sufficiently rational basis to support the Texas [sodomy statute]—applies to strike down the Alabama law here." Id. at 1250. The district court concluded that the cases are distinguishable, and Lawrence does not compel striking down the Alabama law in this case.⁴ Id. at 1253-54

The ACLU now appeals the district court's decision in Williams V granting the State's summary judgment motion and denying the ACLU's summary judgment motion.

STANDARD OF REVIEW

We review a summary judgment decision de novo and apply the same legal standard that bound the district court. Cruz v. Publix Super Markets, Inc., 428 F.3d 1379, 1382 (11th Cir.2005).

DISCUSSION

In Williams IV we held that the Supreme Court in Lawrence "declined the invitation" to recognize a fundamental right to sexual privacy, which would have compelled us to employ strict scrutiny in assessing the constitutionality of the challenged statute. Williams IV, 378 F.3d at 1236. Thus, because there is no fundamental right at issue, we apply rational basis scrutiny to the challenged statute. See Romer v. Evans, 517 U.S. 620, 631, 116 S.Ct. 1620, 1627, 134 L.Ed.2d 855 (1996) ("[I]f 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."). For the reasons stated below, we find that the State's interest in preserving and promoting public morality provides a rational basis for the challenged statute.

Rational basis review is "a highly deferential standard that proscribes only the very outer limits of a legislature's power." Williams II, 240 F.3d at 948. 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 Commc'ns, Inc., 508 U.S. 307, 313, 113 S.Ct. 2096, 2101, 124 L.Ed.2d 211 (1993) (emphasis added). Furthermore, the Supreme Court has held:

On rational-basis review, . . . a statute . . . comes to us bearing a strong presumption of validity, and those attacking the rationality of the legislative classification 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...