11th Circuit: Sex Toys Are Like Prostitution

February 14, 2007

In Lawrence v. Texas, the Supreme Court held that "the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice . . . ."  Nevertheless, the Eleventh Circuit held today that an Alabama law banning the sale of sex toys is not unconstitutional, on the grounds that Alabama has an interest in preserving "public morality" against the sale of such devices.  The challenged law prohibits only the sale of devices "primarily for the stimulation of human genital organs."  It does not forbid their use or possession.

According to the Eleventh Circuit, Lawrence, which struck down a Texas anti-sodomy law, limited its holding to "private" activity between sexual partners.  The Alabama law, on the other hand, prohibits the sale of sex toys--a "public, commercial activity."  Reasoning that the sale of sex toys was more similar to "prostitution" than to private, consensual sex, the Eleventh Circuit upheld the Alabama law.