| [1] | IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT |
| [2] | No. 99-10798 |
| [3] | 2000.C11.0042650 <http://www.versuslaw.com> |
| [4] | October 12, 2000 |
| [5] | SHERRI WILLIAMS, B. J. BAILEY, ET AL., PLAINTIFFS-APPELLEES, V. BILL PRYOR, IN HIS OFFICIAL CAPACITY AS THE ATTORNEY GENERAL OF THE STATE OF ALABAMA, DEFENDANT-APPELLANT. |
| [6] | D. C. Docket No. 98-01938-CV-S-NE |
| [7] | Before Anderson, Chief Judge, Black and Hall *fn1 , Circuit Judges. |
| [8] | The opinion of the court was delivered by: Black, Circuit Judge |
| [9] | [PUBLISH] |
| [10] | Appeal from the United States District Court for the Northern District
of Alabama |
| [11] | In 1998, a statute enacted by the legislature of the State of Alabama
amended the obscenity provisions of the Alabama Code to make the distribution
of certain defined sexual devices a criminal offense. Vendors and users
of such devices filed a constitutional challenge to the statute. The district
court declined to hold the statute violated any constitutional right but
determined the statute was unconstitutional because it lacked a rational
basis. The court permanently enjoined enforcement of the statute. We reverse
and remand. |
| [12] | I. BACKGROUND |
| [13] | The case was tried by the district court from the parties' extensive stipulated
facts, reprinted in full in the district court's published opinion. See
Williams v. Pryor, 41 F. Supp. 2d 1257, 1261-1273 (N.D. Ala. 1999). |
| [14] | After the 1998 amendment, the Alabama Code obscenity provisions provide,
in pertinent part, the following: |
| [15] | It shall be unlawful for any person to knowingly distribute, possess with
intent to distribute, or offer or agree to distribute any obscene material
or any device designed or marketed as useful primarily for the stimulation
of human genital organs for any thing of pecuniary value. Id. at 1259 (quoting
Ala. Code § 13A-12-200.2(a)(1) (Supp. 1998)). *fn2 |
| [16] | A first violation is a misdemeanor punishable by a maximum fine of $10,000
and up to one year of jail or hard labor; a subsequent violation is a class
C felony. See id. The State has conceded the statute's proscription of the
distribution of sexual devices in Alabama does not apply to devices acquired
as gifts or by purchases in another state. See id. at 1265. The statute
also does not restrict possession or use of a sexual device by an individual,
but only the commercial distribution of the devices. See id. |
| [17] | The plaintiffs-appellees are vendors or users of sexual devices. See id.
at 1261-65. The stipulated facts contain two expert opinions that describe
the standard medical and psychological therapeutic uses of sexual devices,
including their frequent prescription in marital and non-marital sexual
or relationship counseling-often as a necessary component for successful
therapy. See id. at 1265-73. The facts also describe a number of other sexual
products the distribution of which is not prohibited by the statute, such
as ribbed condoms or the virility drug Viagra. See id. at 1265. |
| [18] | The district court performed a careful evaluation of the plaintiffs' constitutional
challenges. After considering Supreme Court precedent, the court determined
the statute does not implicate previously recognized fundamental constitutional
rights. See id. at 1275-84. The court also declined to extend those rights
to provide a fundamental right to the use of sexual devices, a right that
would be burdened by the statute. See id. The district court next reviewed
the statute under rational basis scrutiny and concluded the statute lacked
a rational basis. See id. at 1284-1293. The court accordingly held the statute
unconstitutional and issued a permanent injunction against its enforcement.
See id. at 1293. |
| [19] | We review de novo the district court's decision on the constitutionality
of a statute. See, e.g., Mason v. Florida Bar, 208 F.3d 952, 955 (11th Cir.
2000); David Vincent, Inc. v. Broward County, 200 F.3d 1325, 1335 (11th
Cir. 2000); United States v. Hester, 199 F.3d 1287, 1289 (11th Cir. 2000). |
| [20] | II. ANALYSIS |
| [21] | Whether a statute is constitutional is determined in large part by the
level of scrutiny applied by the courts. Statutes that infringe fundamental
rights, or that make distinctions based upon suspect classifications such
as race or national origin, are subject to strict scrutiny, which requires
that the statute be narrowly tailored to achieve a compelling government
interest. See, e.g., Reno v. Flores, 507 U.S. 292, 301-02, 113 S. Ct. 1439,
1447 (1993); Adarand Constructors v. Pena, 515 U.S. 200, 227, 115 S. Ct.
2097, 2113 (1995). Most statutes reviewed under the very stringent strict
scrutiny standard are found to be unconstitutional. But see United States
v. Virginia, 518 U.S. 515, 532 n.6, 116 S. Ct. 2264, 2275 n.6 (1995) ("strict
scrutiny . . . is not inevitably fatal in fact") (quotation omitted).
On the other hand, "if 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." Romer v. Evans, 517 U.S.
620, 632, 116 S. Ct. 1620, 1627 (1996); see also, e.g., Washington v. Glucksberg,
521 U.S. 702, 728, 117 S. Ct. 2258, 2271 (1997); FCC v. Beach Communications,
Inc., 508 U.S. 307, 314, 113 S. Ct. 2096, 2101 (1993). Almost every statute
subject to the very deferential rational basis scrutiny standard is found
to be constitutional. Cf., e.g., Panama City Med. Diag. Ltd. v. Williams,
13 F.3d 1541, 1546-47 (11th Cir. 1994) (discussing "arguable"
rational bases for statute). We consider first the district court's determination
that the statute is unconstitutional because it fails rational basis scrutiny. |
| [22] | A. Rational Basis Review |
| [23] | Rational basis scrutiny is a highly deferential standard that proscribes
only the very outer limits of a legislature's power. 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 Communications, Inc., 508 U.S. 307, 314, 113 S. Ct. 2096, 2101
(1993) (emphasis added). The Supreme Court has explained that: |
| [24] | Where there are plausible reasons for Congress' action, our inquiry is
at an end. This standard of review is a paradigm of judicial restraint.
. . . |
| [25] | On rational-basis review, . . . a statute . . . comes to us bearing a
strong presumption of validity, and those attacking the rationality of the
[statute] 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 for constitutional
purposes whether the conceived reason . . . actually motivated the legislature.
. . . In other words, a legislative choice is not subject to courtroom fact-finding
and may be based on rational speculation unsupported by evidence or empirical
data. Only by faithful adherence to this guiding principle of judicial review
of legislation is it possible to preserve to the legislative branch its
rightful independence and its ability to function. Id. at 313-15, 113 S.
Ct. at 2101-02 (citations and quotations omitted) (emphasis added). In addition,
"the legislature must be allowed leeway to approach a perceived problem
incrementally," even if its incremental approach is significantly over-inclusive
or under-inclusive. Id. at 316, 113 S. Ct. at 2102; see also, e.g., Heller
v. Doe by Doe, 509 U.S. 312, 321, 113 S. Ct. 2637, 2643 (1993); Haves v.
City of Miami, 52 F.3d 918, 923 (11th Cir. 1995). Only in an exceptional
circumstance will a statute not be rationally related to a legitimate government
interest and be found unconstitutional under rational basis scrutiny. *fn3 |
| [26] | The district court systematically considered whether the Alabama sexual
devices distribution criminal statute has a rational basis. See 41 F. Supp.
2d at 1284-1293. First, the court examined three interests it believed had
been relied upon by the State: banning the public display of obscene material,
banning "the commerce of sexual stimulation and auto-eroticism, for
its own sake, unrelated to marriage, procreation, or familial relationships,"
and banning the commerce in obscene material. Id. at 1286-87. The district
court concluded each of these interests was a legitimate interest the State
constitutionally could pursue. See id. Second, the court considered whether
prohibiting the distribution of sexual devices is rationally related to
these legitimate interests. For each interest, the court concluded the law
did not rationally advance the State's objective. See id. at 1288-93. With
respect to public decency, the district court found the ban on the distribution
of sexual devices to be "absolutely arbitrary" because "[i]nnumerable
measures far short of an absolute ban on the distribution of sexual devices
would accomplish the State's goals." Id. at 1288. The court also determined
the ban was irrationally related to the interest in discouraging commerce
in auto-eroticism because the ban, by its very terms, also interfered with
the very sexual stimulation and eroticism related to marriage and procreation
with which the State disclaimed any intent to interfere. See id. at 1288-90.
Finally, the court concluded the statute was an irrational means of banning
obscenity because Alabama "banned the distribution of all sexual devices
in an effort to prohibit the few which may be found obscene." Id. at
1293. The court therefore held the statute failed rationally to advance
any legitimate state interest and accordingly was unconstitutional. See
id. |
| [27] | We conclude the district court erred in determining the statute lacks
a rational basis. The State's interest in public morality is a legitimate
interest rationally served by the statute. The crafting and safeguarding
of public morality has long been an established part of the States' plenary
police power to legislate and indisputably is a legitimate government interest
under rational basis scrutiny. See, e.g., Barnes v. Glen Theatre, Inc.,
501 U.S. 560, 569, 111 S. Ct. 2456, 2462 (1991) (citing Bowers v. Hardwick,
478 U.S. 186, 196, 106 S. Ct. 2841, 2846 (1986); Paris Adult Theatre I v.
Slaton, 413 U.S. 49, 61, 93 S. Ct. 2628, 2637 (1973); Roth v. United States,
354 U.S. 476, 77 S. Ct. 1304 (1957)). *fn4
A statute banning the commercial distribution of sexual devices is rationally
related to this interest. Alabama argues "a ban on the sale of sexual
devices and related orgasm stimulating paraphernalia is rationally related
to a legitimate legislative interest in discouraging prurient interests
in autonomous sex" and that "it is enough for a legislature to
reasonably believe that commerce in the pursuit of orgasms by artificial
means for their own sake is detrimental to the health and morality of the
State." Appellant's Brief at 13, 16. The criminal proscription on the
distribution of sexual devices certainly is a rational means for eliminating
commerce in the devices, which itself is a rational means for making the
acquisition and use of the devices more difficult. Moreover, incremental
steps are not a defect in legislation under rational basis scrutiny, so
Alabama did not act irrationally by prohibiting only the commercial distribution
of sexual devices, rather than prohibiting their possession or use or by
directly proscribing masturbation with or without a sexual device. Thus,
we hold the Alabama sexual devices distribution criminal statute is constitutional
under rational basis scrutiny because it is rationally related to at least
one legitimate State interest. |
| [28] | In addition, the district court's application of rational basis scrutiny
to the three state interests it considered was erroneous because the court
relied heavily upon three Supreme Court decisions, Romer v. Evans, 517 U.S.
629, 116 S. Ct. 1620 (1996), Turner v. Safley, 482 U.S. 78, 107 S. Ct. 2254
(1987), and City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 105
S. Ct. 3249 (1985), in concluding the statute does not rationally advance
the State's interests the district court conceded were legitimate. See 41
F. Supp. 2d at 1288, 1293. These cases do not support the district court's
application of rational basis scrutiny in this case. |
| [29] | First, the Turner v. Safely decision established a deferential reasonableness
standard as the level of scrutiny to be applied when a prison regulation
infringes an inmate's constitutional interests. See Turner, 482 U.S. at
89-91, 107 S. Ct. at 2261-63. Although similar in part (and sometimes in
description) to ordinary rational basis review, the Turner standard requires
a more searching, four-part inquiry. The first prong considers whether the
prison regulation is rationally related to a legitimate penological interest
(a class of interests more narrow than those considered under ordinary rational
basis review); the other prongs address whether the inmate has alternative
means of exercising the constitutional right, the burden on the prison in
accommodating the right, and whether the regulation is an exaggerated response
to prison concerns. See id. at 89-91, 107 S. Ct. at 2261-63; see also, e.g.,
O'Lone v. Estate of Shabazz, 482 U.S. 342, 349-53, 107 S. Ct. 2400, 2404-07
(1987); Pope v. Hightower, 101 F.3d 1382, 1384 (11th Cir. 1996); Harris
v. Thigpen, 941 F.2d 1495, 1516 (11th Cir. 1991). Accordingly, cases decided
under the Turner standard, and Turner itself, are inapplicable to cases,
like this one, concerning the constitutional protection accorded by ordinary
rational basis scrutiny to citizens in free society. |
| [30] | Second, the district court also erred by applying Romer v. Evans. In Romer,
the Supreme Court invalidated a provision of the Colorado state constitution
that imposed a special limitation on participation in the political process
upon one group, homosexuals. Applying rational basis scrutiny, the Court
held that Colorado's provision was unconstitutional. See 517 U.S. at 632,
116 S. Ct. at 1627. As described by the Court, the provision "withdraws
from homosexuals, but no others, specific legal protection from the injuries
caused by discrimination, and it forbids reinstatement of these laws and
policies," id. at 627, 116 S. Ct. at 1625, "bars homosexuals from
securing protection against the injuries that these public-accommodations
laws address," and "operates to repeal and forbid all laws or
policies providing specific protection for gays or lesbians from discrimination
by every level of Colorado government," id. at 629, 116 S. Ct. at 1626,
resulting in a situation in which "[h]omosexuals are forbidden the
safeguards that others enjoy or may seek without constraint. They can obtain
specific protection against discrimination only by enlisting the citizenry
of Colorado to amend the State Constitution." Id. at 631, 116 S. Ct.
at 1627. The Court then noted that "[t]he resulting disqualification
of a class of persons from the right to seek specific protection from the
law is unprecedented in our jurisprudence. . . . It is not within our constitutional
tradition to enact laws of this sort. . . . A law declaring that in general
it shall be more difficult for one group of citizens than for all others
to seek aid from the government is itself a denial of equal protection of
the laws in the most literal sense." Id. at 633, 116 S. Ct. at 1628.
The significance of Romer, therefore, is the Court's holding that Colorado's
provision had not been enacted in pursuit of any legitimate government interest:
the provision was "an exceptional and . . . invalid form of legislation."
Id. at 632, 116 S. Ct. at 1627. The State had no legitimate interest in
imposing an inability to obtain the protection of anti-discrimination laws
(without amending the state constitution) on any particular group, including
homosexuals. *fn5 Cf. Shahar v. Bowers,
114 F.3d 1097, 1110 (11th Cir. 1997) (en banc) ("Romer . . . struck
down an amendment to a state constitution as irrational because the amendment's
sole purpose was to disadvantage a particular class of people"); id.
at 1126 (Birch, J., dissenting) ("the Court rejected the state's rationale,
declaring that animosity toward the class of homosexuals is not a legitimate
basis for state action") (quotation omitted). The statute at issue
in this case, however, raises no similar concerns. The district court agreed
the three state interests it discussed were legitimate, see 41 F. Supp.
2d at 1286-87, and we have held there is at least one legitimate state interest,
the regulation of public morality, that justifies this statute. Consequently,
Romer's holding that the Colorado provision was supported by no legitimate
state interest has no bearing in this case. |
| [31] | Third, the Equal Protection Clause as-applied analysis of City of Cleburne
has little relevance to the fundamental rights facial challenge raised by
the plaintiffs in this case. The Supreme Court recently reaffirmed that
the Equal Protection Clause is violated (in cases in which heightened scrutiny
does not apply) when the plaintiff-whether a class, group, or simply one
individual-proves "that she has been intentionally treated differently
from others similarly situated and that there is no rational basis for the
difference in treatment." Village of Willowbrook v. Olech, 120 S. Ct.
1073, 1074 (2000) (holding that plaintiff stated constitutional Equal Protection
Clause cause of action by alleging that village acted irrationally, wholly
arbitrarily, and out of malice toward plaintiff when it demanded 33-foot
easement from plaintiff, contrary to 15-foot easements obtained from others
similarly situated). In City of Cleburne, the Court had applied this principle
in holding that the city had violated the Equal Protection Clause by requiring
a special use permit for a group home for mentally disabled persons but
not for many other similar kinds of group homes. After rejecting the application
of heightened scrutiny, see 473 U.S. at 442, 105 S. Ct. at 3255, the Court
considered the city's arguments that the permit requirement was based on
the following government interests: neighbors' negative opinions and fears
of elderly neighbors, proximity to a junior high school, location on a flood
plain, size of the home and number of residents it would house, fire hazards,
neighborhood serenity, and danger to neighbors. See id. at 448-50, 105 S.
Ct. at 3259-60. The Court did not discount the legitimacy of these interests,
but rather found that, in creating the means used to carry out these interests,
the city had adopted a classification that had no rational basis: |
| [32] | The city does not require a special use permit . . . for apartment houses,
multiple dwellings, boarding and lodging houses, fraternity or sorority
houses, dormitories, apartment hotels, hospitals, sanitariums, nursing homes
for convalescents or the aged (other than for the insane or feebleminded
or alcoholics or drug addicts), private clubs or fraternal orders, and other
specified uses. It does, however, insist on a special permit for the Featherston
home, and it does so, as the District Court found, because it would be a
facility for the mentally retarded. . . . But this difference is largely
irrelevant unless the Featherston home and those who would occupy it would
threaten legitimate interests of the city in a way that other permitted
uses such as boarding houses and hospitals would not. Because in our view
the record does not reveal any rational basis for believing that the Featherston
home would pose any special threat to the city's legitimate interests, we
affirm the judgment below insofar as it holds the ordinance invalid as applied
in this case. Id. at 447-48, 105 S. Ct. at 3258 (emphasis added). *fn6 |
| [33] | In this case, by contrast, the plaintiffs have presented a fundamental
rights facial challenge to the Alabama statute; they have not alleged an
Equal Protection Clause violation, much less argued that the statute would
make any irrational classifications among persons in its enforcement. Accordingly,
the rational basis analysis of City of Cleburne does not support the district
court's conclusion that this statute lacks a rational basis. |
| [34] | Finally, the plaintiffs maintain the district court did not err in finding
the statute to be constitutionally irrational because Alabama's statute
is contrary to a wide spectrum of public and professional opinions. The
plaintiffs argue these opinions recognize numerous legitimate and beneficial
uses of sexual devices, especially the necessity of sexual devices for some
persons to achieve medical or emotional health. However misguided the legislature
of Alabama may have been in enacting the statute challenged in this case,
the statute is not constitutionally irrational under rational basis scrutiny
because it is rationally related to the State's legitimate power to protect
its view of public morality. "The Constitution presumes that . . .
improvident decisions will eventually be rectified by the democratic process
and that judicial intervention is generally unwarranted no matter how unwisely
we may think a political branch has acted." Vance v. Bradley, 440 U.S.
93, 97, 99 S. Ct. 939, 942-943 (1979). This Court does not invalidate bad
or foolish policies, only unconstitutional ones; we may not "sit as
a superlegislature to judge the wisdom or desirability of legislative policy
determinations made in areas that neither affect fundamental rights nor
proceed along suspect lines." New Orleans v. Dukes, 427 U.S. 297, 303,
96 S. Ct. 2513, 2517 (1976). |
| [35] | For the foregoing reasons, we hold the Alabama statute challenged in this
case has a rational basis. We therefore reverse the district court's judgment
to the contrary. |
| [36] | B. Fundamental Rights Analysis |
| [37] | In their fundamental rights arguments, the plaintiffs challenged the constitutionality
of the statute on its face and as applied. We conclude the district court
correctly rejected the facial challenge, but we remand the as-applied challenges. |
| [38] | 1. Facial Challenge |
| [39] | "A facial challenge to be successful `must establish that no set
of circumstances exists under which the Act would be valid.'" Adler
v. Duval County School Bd., 206 F.3d 1070, 1083-84 (11th Cir. 2000) (en
banc) (quoting United States v. Salerno, 481 U.S. 739, 745, 107 S. Ct. 2095,
2100 (1987)). Unless the statute is unconstitutional in all its applications,
an as-applied challenge must be used to attack its constitutionality. |
| [40] | Initially, we must determine how to frame the nature and scope of a constitutional
right that would facially invalidate the Alabama statute. Alabama maintains
the plaintiffs are claiming simply a "right to sell or buy" sexual
devices. Such a right would receive little constitutional protection because
ordinary economic and commercial regulations are subject only to rational
basis scrutiny. See, e.g., Beach Communications, 508 U.S. at 314, 113 S.
Ct. at 2101 ("In areas of social and economic policy, . . . any reasonably
conceivable state of facts that could provide a rational basis for the"
statute is sufficient to sustain its constitutionality); Williamson v. Lee
Optical of Oklahoma, Inc., 348 U.S. 483, 489, 75 S. Ct. 461, 465 (1955).
The plaintiffs respond that a right of greater constitutional significance
is at stake: in the narrowest sense, the plaintiffs assert a fundamental
"right to use" sexual devices; more generally, the plaintiffs
invoke the Supreme Court's cases establishing a constitutionally protected
fundamental right to privacy. The district court narrowly framed the analysis
as the question "whether the concept of a constitutionally protected
`right to privacy' protects an individual's liberty to use [sexual devices]
when engaging in lawful, private, sexual activity." 41 F. Supp. 2d
at 1275; see also id. at 1281 & n.30. For purposes of the facial challenge,
the right is more precisely stated as whether the Constitution protects
such liberty of every individual. |
| [41] | In light of the Supreme Court's decision in Carey v. Population Services
International, 431 U.S. 678, 97 S. Ct. 2010 (1977), we conclude the district
court correctly framed the fundamental rights analysis in this case. Following
its decisions holding a state may not criminalize every sale or distribution
of contraceptives, see Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct.
1678 (1965); Eisenstadt v. Baird, 405 U.S. 438, 92 S. Ct. 1029 (1972), the
Supreme Court struck down a narrower New York law criminalizing the sale
of contraceptives to persons under 16 years of age and the sale of contraceptives
by non-pharmacists. See Carey, 431 U.S. at 681-82, 97 S. Ct. at 2014. The
Court explained that: |
| [42] | [T]he Constitution protects individual decisions in matters of childbearing
from unjustified intrusion by the State. Restrictions on the distribution
of contraceptives clearly burden the freedom to make such decisions. . .
. This is so not because there is an independent fundamental "right
of access to contraceptives," but because such access is essential
to exercise of the constitutionally protected right of decision in matters
of childbearing that is the underlying foundation of the holdings in Griswold,
Eisenstadt v. Baird, and Roe v. Wade. 431 U.S. at 687-89, 97 S. Ct. at 2017-18;
see also id. at 689-91, 97 S. Ct. at 2108-19 (concluding that New York law
fails strict scrutiny for lack of compelling state interest). |
| [43] | Similarly, because the statute prohibiting the distribution of sexual
devices would burden an individual's ability to use the devices, the analysis
in this case must be framed not in terms of whether the Constitution protects
a right to sell or buy sexual devices, but rather in terms of whether there
is a fundamental constitutional interest-broad or narrow-that encompasses
a right to use sexual devices and invalidates this statute on its face. |
| [44] | We conclude there is no controlling precedent that specifically establishes
the facial unconstitutionality of this statute. *fn7
The fundamental constitutional rights of privacy recognized to date by the
Supreme Court in the area of sexual activity each have followed from the
Court's protection of a person's right to make the decision not to procreate
without governmental interference. Specifically, the Court has repeatedly
sustained a right to prevent pregnancy through the use of contraceptives,
see Griswold, 381 U.S. at 479, 85 S. Ct. at 1678; Eisenstadt, 405 U.S. at
438, 92 S. Ct. at 1029; Carey, 431 U.S. at 678, 97 S. Ct. at 2010, as well
as a woman's qualified right to terminate a pregnancy, see, e.g., Planned
Parenthood v. Casey, 505 U.S. 833, 112 S. Ct. 2791 (1992); Roe v. Wade,
410 U.S. 113, 93 S. Ct. 705 (1973). More than half a century ago, the Court
also protected the right to procreate, invalidating a state's provision
for involuntary sterilization of habitual criminals. See Skinner v. Oklahoma,
316 U.S. 535, 62 S. Ct. 1110 (1942). The Court also has recognized other
fundamental rights, including rights of privacy unrelated to sexual activity,
that protect personal autonomy from governmental intrusion. See, e.g., Cruzan
v. Director, Missouri Dep't of Health, 497 U.S. 186, 110 S. Ct. 2841 (1990)
(sustaining right to refuse medical treatment); Loving v. Virginia, 388
U.S. 1, 87 S. Ct. 1817 (1967) (invalidating ban on interracial marriage).
None of these cases, however, is decisive on the question whether the Constitution
protects every individual's right to private sexual activity and use of
sexual devices from being burdened by Alabama's sexual device distribution
criminal statute. |
| [45] | We therefore must determine whether we may, in this case, recognize an
"extension of the `right to privacy[,]' which the Supreme Court has
recognized as fundamental in certain contexts," that is broad enough
to facially invalidate the Alabama statute. 41 F. Supp. 2d at 1275; see
id. at 1282. Extending the constitutional right to privacy to include a
broad fundamental right to all sexual autonomy, such as a privacy right
to engage in any form of private consensual sexual behavior between adults,
is directly precluded by Supreme Court precedent. In Bowers v. Hardwick,
478 U.S. 186, 106 S. Ct. 2841 (1986), the Supreme Court sustained against
a fundamental right to privacy challenge Georgia's criminal sodomy statute
as applied to homosexual conduct. *fn8
The Court reviewed its fundamental rights precedent and expressly noted
that "any claim that these cases . . . stand for the proposition that
any kind of private sexual conduct between consenting adults is constitutionally
insulated from state proscription is unsupportable." Id. at 191, 106
S. Ct. at 2844; see also Glucksberg, 521 U.S. at 727, 117 S. Ct. at 2271
("That 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.
. . ."). |
| [46] | In light of Bowers, there would be no violation of any fundamental constitutional
right to the extent the application of Alabama's statute infringed upon
the sexual activity of homosexuals. The statute has possible constitutional
applications and therefore is not facially unconstitutional. The district
court correctly rejected the plaintiffs' facial challenge to the statute. |
| [47] | 2. As-Applied Challenges |
| [48] | We conclude the district court did not adequately consider the as-applied
fundamental rights challenges raised by the plaintiffs. Accordingly, we
remand for the district court to consider these claims in the first instance. |
| [49] | The district court failed to specifically consider the as-applied challenges
raised by the four "user" plaintiffs. Betty Faye Haggermaker and
Alice Jean Cope are married women who use sexual devices with their husbands.
See 41 F. Supp. 2d at 1264. Sherry Taylor-Williams and Jane Doe began using
sexual devices in marital intimacy but both are now single. See id. at 1264-65.
Although the statute is not facially unconstitutional because, in light
of Bowers, it may constitutionally be applied to homosexual activity-and
the district court therefore correctly declined to recognize an expansive
fundamental right encompassing the use of sexual devices in every kind of
lawful, private, sexual activity-the as-applied challenges raised by the
plaintiffs, married or unmarried, implicate interests in sexual privacy
different from those rejected in Bowers. See Griswold, 381 U.S. at 485-86,
85 S. Ct. at 1682 ("Would we allow the police to search the sacred
precincts of marital bedrooms . . ? The very idea is repulsive to the notions
of privacy surrounding the marriage relationship."); Glucksberg, 521
U.S. at 720, 117 S. Ct. at 2267 (citing Griswold as holding the Constitution
protects a fundamental right "to marital privacy"); Bowers, 478
U.S. at 188 n.2, 190-91, 106 S. Ct. 2842, 2843-44 (noting significance of
fact that no constitutional challenge to sodomy statute concerning marriage
had been properly presented); see also Casey, 505 U.S. at 898, 112 S. Ct.
at 2831 (invalidating provision requiring notification of married woman's
spouse before abortion could be performed because "[w]omen do not lose
their constitutionally protected liberty when they marry. The Constitution
protects all individuals, male or female, married or unmarried, from the
abuse of governmental power, even where that power is employed for the supposed
benefit of a member of the individual's family"); Eisenstadt, 405 U.S.
at 453, 92 S. Ct. at 1033 ("[T]he rights of the individual to [have]
access to contraceptives . . . must be the same for the unmarried and married
alike."); Bowers, 478 U.S. at 209 n.4, 106 S. Ct. at 2853 n.4 (Blackmun,
J., dissenting) (questioning validity of categorizations of sexual activity
depending on marital status); id. at 216, 106 S. Ct. at 2857 (Stevens, J.,
dissenting) (citing Eisenstadt and Carey as holding that fundamental rights
protection in sexual matters "extends to intimate choices by unmarried
as well as married persons"). |
| [50] | We remand the as-applied challenges for due consideration by the district
court because the record and stipulations in this case simply are too narrow
to permit us to decide whether or to what extent the Alabama statute infringes
a fundamental right to sexual privacy of the specific plaintiffs in this
case. In Glucksberg, its most recent case in which an argument for recognition
of a new fundamental right was presented, the Supreme Court instructed that
a fundamental right must be "objectively, 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 [the right]
were sacrificed." 521 U.S. at 720-21, 117 S. Ct. at 2268 (citations
and quotations omitted). In concluding the Constitution did not include
such a fundamental right of physician-assisted suicide, the Court discussed
at length not only the long history of the proscription of suicide and assisting
suicide but also the considerable contemporary nationwide legislative action
to preserve such laws. See id. at 710-19, 117 S. Ct. at 2262-67. By contrast,
in this case the district court considered in two paragraphs only whether
the "use of sexual devices" is a deeply rooted and central liberty.
See 41 F. Supp. 2d at 1283-84 & n.33. The court analyzed neither whether
our nation has a deeply rooted history of state interference, or state non-interference,
in the private sexual activity of married or unmarried heterosexual persons
nor whether contemporary practice bolsters or undermines any such history.
The record is bare of evidence on these important questions. Absent the
kind of careful consideration the Supreme Court performed in Glucksberg,
we are unwilling to decide the as-applied fundamental rights analysis and
accordingly remand those claims to the district court. |
| [51] | III. CONCLUSION |
| [52] | The Alabama statute making it a criminal offense to commercially distribute
sexual devices in the State is rationally related to the State's legitimate
government interest in public morality. The district court therefore erred
invalidating the statute under rational basis scrutiny. The statute also
survives the plaintiffs' facial challenge asserting fundamental constitutional
rights. We conclude, however, the plaintiffs' as-applied fundamental rights
challenges must be considered further by the district court. |
| [53] | REVERSED AND REMANDED. |
|
|
|
| Opinion Footnotes | |
|
|
|
| [54] | *fn1 Honorable Cynthia Holcomb Hall, U.S. Circuit Judge for the Ninth
Circuit, sitting by designation. |
| [55] | *fn2 We adopt the district court's usage
of the shorthand term "sexual device" in place of the cumbersome
phrase "device designed or marketed as useful primarily for the stimulation
of the human genital organs." |
| [56] | *fn3 An example of such an exceptional
circumstance recognized by this Court is the irrationality of government
attempts to regulate the dress and grooming of adults. See DeWeese v. Town
of Palm Beach, 812 F.2d 1365, 1368-70 (11th Cir. 1987) (invalidating town
ordinance requiring male joggers to wear shirts); Lansdale v. Tyler Junior
College, 470 F.2d 659, 662-63 (5th Cir. 1972) (en banc) (adopting presumption
that state's interests in education and educational environment did not
rationally justify hair-length regulation at junior college, although under
Karr v. Schmidt, 460 F.2d 609 (5th Cir. 1972) (en banc), those interests
presumptively could rationally justify dress and grooming regulations in
high schools); also compare Hander v. San Jacinto Junior College, 519 F.2d
273 (5th Cir. 1975) (holding under Lansdale that junior college could not
fire faculty member for refusing to shave beard), with Domico v. Rapides
Parish School Bd., 675 F.2d 100 (5th Cir. 1982) (holding that school board
may apply dress code to employees of high school), and Kelley v. Johnson,
425 U.S. 238, 96 S. Ct. 1440 (1976) (sustaining hair grooming regulation
in police department). |
| [57] | *fn4 In fact, the State's interest in
public morality is sufficiently substantial to satisfy the government's
burden under the more rigorous intermediate level of constitutional scrutiny
applicable in some cases. See, e.g., City of Erie v. Pap's A.M., ___ U.S.
___, 120 S. Ct. 1382, 1395-97 (2000); Barnes, 501 U.S. at 569, 111 S. Ct.
2462. For purposes of consistency in this case, however, we will refer to
the interest as legitimate. |
| [58] | *fn5 The Romer Court also discussed
whether the Colorado provision was rationally related to a government interest.
The Court determined the provision's "sheer breadth is so discontinuous
with the reasons offered for it that the amendment seems inexplicable by
anything but animus toward the class it affects," id. at 632, 116 S.
Ct. at 1627, and that "[t]he breadth of the amendment is so far removed
from these particular justifications that we find it impossible to credit
them." Id. at 635, 116 S. Ct. at 1629. Although discussed in terms
of the rationality of the relationship of means to ends, in effect the Court
reasoned that the type of means adopted showed that no legitimate end was
being pursued: "[L]aws of the kind now before us raise the inevitable
inference that the disadvantage imposed is born of animosity toward the
class of persons affected," id. at 634, 116 S. Ct. at 1628, amounting
to "a classification of persons undertaken for its own sake, something
the Equal Protection Clause does not permit." Id. at 635, 116 S. Ct.
at 1629. |
| [59] | *fn6 Similar to Romer, the City of Cleburne
Court noted that "requiring the permit in this case appears to us to
rest on an irrational prejudice against the mentally retarded." Id.
at 450, 105 S. Ct. at 3260. Unlike Romer, however, this conclusion was directed
not to the legitimacy of the city's ends, but rather bolstered the Court's
determination that the classification of persons drawn by the city in carrying
out its ends was constitutionally irrational. |
| [60] | *fn7 Alabama suggests two precedents
interpreting similar statutes, Sewell v. Georgia, 435 U.S. 982, 98 S. Ct.
1635 (1978), and Red Bluff Drive-In, Inc. v. Vance, 648 F.2d 1020 (5th Cir.
June 1981) (binding authority under Bonner v. City of Prichard, 661 F.2d
1206, 1209 (11th Cir.1981) (en banc)), establish the constitutionality of
this statute. We conclude neither decision is controlling here. The Supreme
Court in Sewell dismissed an appeal from the Supreme Court of Georgia for
want of a substantial federal question, see 435 U.S. at 982, 98 S. Ct. at
1635, a disposition that "prevent[s] lower courts from coming to opposite
conclusions on the precise issues presented and necessarily decided by those
actions." Langelier v. Coleman, 861 F.2d 1508, 1511 (11th Cir. 1988)
(quoting Mandel v. Bradley, 432 U.S. 173, 176, 97 S. Ct. 2238, 2240 (1977))
(emphasis added). The only issues necessarily decided in Sewell, however,
were First Amendment obscenity arguments. See Sewell v. State, 233 S.E.2d
187, 188-89 (Ga. 1977). Similarly, Vance decided only a First Amendment
obscenity challenge. See 648 F.2d at 1027-28. |
| [61] | *fn8 A panel of this Court had recognized
a broad fundamental right to sexual privacy, relying particularly upon the
Supreme Court's contraception and abortion cases, in precluding Georgia
from criminalizing private consensual adult sodomy. See Hardwick v. Bowers,
760 F.2d 1202, 1210-13 (11th Cir. 1985). The Supreme Court reversed, by
a 5-4 majority, emphasizing the traditional prohibition of homosexual sodomy.
See Bowers, 478 U.S. at 190-96, 106 S. Ct. at 2844-46. |
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