Julie McKenna


On March 5, 2010 the Supreme Court of Alabama upheld an Alabama statute that prohibits the sale and distribution of sexual devices. The statute makes it illegal “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 anything of pecuniary value.” For reasons to be explained in this Note, the Alabama Supreme Court decided to follow the Eleventh Circuit’s reasoning in Williams v. Attorney General, a 2004 case that upheld the very same Alabama statute. In Williams, the Eleventh Circuit held that the statute was constitutional and refused to extend the United States Supreme Court’s holding in Lawrence v. Texas to the commercial activity involved with the sale and distribution of the sexual devices. Additionally, the Supreme Court of Alabama recognized that a Fifth Circuit case, Reliable Consultants, Inc. v. Earle, extended the ruling in Lawrence to a Texas statute also prohibiting the sale of sexual devices.

The current split in the circuit courts centers on just how far Lawrence extends beyond the facts of that case, and whether Lawrence is applicable to activity outside the home. The Fifth Circuit stated that “[o]nce Lawrence is properly understood to explain the contours of the substantive due process right to sexual intimacy, the case plainly applies.” The question then becomes: does Lawrence really plainly apply? While the Fifth Circuit seems to think the case applies to the sale and distribution of sexual devices, the Eleventh Circuit clearly does not and has stated that it “[declines] to extrapolate from Lawrence and its dicta a right to sexual privacy triggering strict scrutiny.” Therefore, there is currently one circuit under the impression that Lawrence clearly applies to these statutes prohibiting the sale of sexual devices, and another circuit under the impression that they would have to “extrapolate” from the language of Lawrence in order to rule these statutes unconstitutional.

This Note explores the question of whether Lawrence extends to the commercial activity prohibited by statutes such as the one in Alabama and argues that the analysis in both the Fifth and the Eleventh Circuits regarding the sale and distribution of sexual devices are improper. While this Note argues, in agreement with the Fifth Circuit, that selling and distributing sexual devices should be constitutionally protected across the board, this Note argues that Lawrence is not the applicable case in asserting that these statutes are unconstitutional. Lawrence has left the question of whether there is a new fundamental right to privacy unclear. The confusion over Lawrence is evidenced by the current circuit split. However, the proper analysis involves Carey v. Population Services International and the line of Supreme Court cases ruling on the sale and distribution of contraceptives since sexual devices are being used more frequently for health and birth control reasons.

Part I of this Note chronicles the history of sexual devices in America. Part II provides some historical background on the case law and development of the idea of examining “sexual privacy” through the so-called “sexual freedom cases.” Part III gives a brief history of the state case law that has developed around statutes that control the sale of these devices. Part IV discusses the current circuit split among the Fifth and Eleventh circuits and the Lawrence v. Texas decision. Part V argues that Lawrence is not the proper case for analyzing the constitutionality of sexual device statutes, due to the commercial activity dealt with in this topic, but that the real support lies in Griswold and its progeny.