I am no lawyer but am studied enough to see that the Alabama law has some differences that may make it unconstitutional where others may not be (at least in part). Alabama's law makes it illegal to sell or possess such devices. That portion may be unconstitutional after Lawrence (in respect to similar cases Lawrence seems to state that conduct that would be illegal in public may not be in private). Many of these laws only make the sale of these items illegal (public conduct) and not the possession (private conduct). The Legislatures can make the sale of pretty much anything illegal but may have a much harder time making the possession illegal without some real health/welfare goals.

Part of my comment above didn't take. I realize the arguments against Lawrence opening up pretty much all private sexual conduct but at the same time that is directly stated in the decision.

"Petitioners right to liberty under the Due Process Clause gives them full right to engage in private conduct without government intervention."

We can extrapolate that since the court validated the right of those engaging "in sexual practices common to a homosexual lifestyle" to make those decisions, and that lesbians and gay men alike naturally use many "sexual aids", that "sexual aids" would be protected as part of that lifestyle. Due Process would then extend that protection to heterosexuals. But only the possession and usage in private.

The sale of the itesm could still be illegal much as homosexual sex has now been pretty much legalized but the sale of it has not.

Clerk, Well, so another court has weighed on in just what Lawrence means. Since I am in favor of women being unfulfilled, and I think that marriages should be broken up on the basis of impotence, I think the right decision was reached. Therefore, I stand with you in saying that the decision was correct.

It is hard to say whether or not Lawrence “changed everything” because the decision is so darn nebulous. While I obviously don’t see it as preventing all state regulation of sex, it does leave so many open questions that the issue will have to be revisited again.

I would have liked to have seen a better analysis of what Lawrence DOES stand for. The panel opted not to do this, which makes their opinion a little weaker than I think you admit. (Though one can argue that they were under no obligation to do this.) Whatever the case, this is just begging for a cert. grant.

Steve,

What Alabama law have you studied? The reason I ask is because you don’t seem to cite to any. And why do you differentiate between sale and possession?

Then you say, “We can extrapolate that since the court validated the right of those engaging "in sexual practices common to a homosexual lifestyle" to make those decisions, and that lesbians and gay men alike naturally use many "sexual aids", that "sexual aids" would be protected as part of that lifestyle”

How can you “extrapolate” that? In fact, Lawrence is vague (perhaps deliberately) on whether all sexual conduct between consenting adults is protected or whether just sodomy between gay people is protected. In fact, I challenge you to find some language in Lawrence that would lead a court to conclude that a bad on oral sex between a ban and a woman is now constitutionally protected. Yet, you still say that because gay people are having gay sex, then they can have any kind of sex with anything they want?

CSG,
I appreciate your disclaimer that you're not a lawyer and, presumably, not a law student. 1L constitutional law will complicate your assertion that "The Legislatures can make the sale of pretty much anything illegal . . ." if by this you mean state legislatures.

Taint,
I think the language you're looking for is at 539 U.S. 558, 578: "The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle."

Justice O'Connor does state in her concurrence that the question of heterosexual sodomy is not addressed in Lawrence. 539 U.S. at 584 (O'Conner, J., concurring) ("Whether a sodomy law that is neutral both in effect and application . . . would violate the substantive component of the Due Process Clause is an issue that need not be decided today.").

My reading of the holding, though, is that Lawrence stands for the proposition, and only for the proposition, that non-commercial, private sexual conduct between consenting adults is constitutionally beyond the reach of the state's police power. An interesting question that arises from this, as Sen. Santorum repeatedly suggests, is "How many adults?" Is a non-commercial, private, consensual orgy among adults beyond the reach of state regulation? Is the number of participants limited only by the "private" element?

Clerk,
I concur. Selling sex toys violates the "non-commercial" element of the Lawrence holding. I wouldn't join in your post, however, because I disagree with Birch, J., (based only on your quotation of him, which I trust to be in-context) to the extent that I believe Lawrence is the step Glucksberg did not take--i.e., enunciating a right to private sexual conduct within the non-commercial, consenting adult context. I agree: Lawrence didn't "change everything," but I think it did change that.

JD, You beat me to the multi-part adult issue. O’Conner’s concurrence makes the most sense to me, but as we all know, it probably has limited persuasive effect.

I will have to do a bit more research on this, but if I recall correctly, merely because only the commercial indicia of a fundamental right is regulated does not protect the regulation from constitutional challenge, as such legitimate regulation of the commercial activity does burden the protected activity. So, for example, states can tax newspapers in a view-point discriminatory way, even though they can tax newspapers.

As I have said before, I do believe that there is a “right to privacy.” Ascertaining the nature of the right is a trick business because you only the court determine where one’s right to privacy is when a case comes before it. Here, in Lawrence, we saw that adults have a right to private, non-commercial sodomy and therefore the states are limited in the power to regulate. Likewise, in Roe and its progeny, we saw that it also means that they have some right to have abortions and the states interest in protecting a fetus is, initially, limited. Likewise, in FSC we saw that the government’s interest in protecting against child pr0n can’t be construed to protect against child pr0n where no humans were involved. (I picked the last two cases somewhat arbitrarily.) In these three cases, some rights to privacy are implicated, and I conceive if their propositions are representing three points on a grid. The right to privacy, must, at a minimum be larger than the triangle, or circle that is created by connecting the grid.

This is where the 11th circuit, I think, misses it. By looking at a narrow holding in Lawrence, they don’t consider whether or not the scope of the entire right has been expanded by staking out an area that was formerly not within this scope.

Actually that is my point. The damn thing is so open that it allows for a lot of interpretation. In my quote I pointed out that the court advised that since they were engaging in practice common to the homosexual lifestyle, and we all know that many lesbians utilize so called "marital aids", that marital aids must be protected for homosexuals, and then must also be protected for non-homosexuals. Cheap way to get the point but it is a way to get to it. Another is below:

I will utilize the FindLaw pdf of the case at http://news.findlaw.com/hdocs/docs/scotus/lwrnctx62603opn.pdf

The first thing that jumps out is that Bowers was overturned. Bowers was a case of law that applied equally to Hetero and Homosexual people. Therefore sexual privacy for Hetero and Homosexual people is linked. Therefore the decision in Lawrence applies equally to both. If we can at least agree to that we are at a start.

From the second to last paragraph of the Majority Opinion: "The State cannot demean their existence or control their destiny by making their private sexual conduct a crime." This implies that I have a right to utilize sexual toys in my home to gratify myself. But it does not imply that you can sell them to me. This is why the Alabama law will probably stand for a while. The state has the right to regulate the sale of items it can not regulate the possession of. That is why I can have consenting adult pornography in my house right now and noone can take it from me but if I sell it to someone the local police will arrest me (yes I live in a blue law city).

As far as the oral sex law question, the overturning of Bowers negated those laws currently on the books because it was a complete ban on oral or anal sex, we just have to wait till the courts figure it out.

Lawrence may be vague in some respects but I believe a lot of the vagueness is because people read what they want to read.

The reason I made the distinction between sale and possession is because the law makes that same distinction. The applicable law is Section 13A-12-200 (Alabama Anti-Obscenity Enforcement Act). The law is aimed at sales of the items but I will tell you from living in Alabama (I have friends who are lesbian) that some cops would also confiscate any they saw in your car during a traffic stop under the "intent to distribute" portion (I didn't ask them why it was on the back seat but I have a good idea).

Now since I have shown my cards please show me where Lawrence is that vague in light of the overturning of Bowers. They could have left Bowers intact (or refined it) and just overturned the Texas law. That would have allowed for outright bans where it applied to everyone equally. But they decided not only to overturn the Texas law that was a ban on homosexuals only, but to also overturn the ban on heterosexuals.

The concurrance of O'Connor is directed only at the Homosexual/Heterosexual Due Process argument, but the Majority Opinion is clearly in favor of sexual freedom.

Now, as a note, I stated I am not a lawyer. I am a computer programmer. But I believe that each of us has the responsibility to at least try to understand laws and decisions for ourselves. The media will not tell you everything so you have to read for yourself. If my arguments are not logical please tell me. I will not be offended. I am attempting to learn more about actual law as I go and would greatly appreciate the help.

CG, Everything that the Supreme Court does has various interpretations. In fact, everything that people write has interpretations. However, the problem with Lawrence is that it left a number of issues for another day. I guess that other day is now.

Look, the court has already said normal, procreative, sexual relations between, for example, married couples, are protected. Just because the court makes a ruling involving a homosexual’s ability to shape their own relationship with the universe, doesn’t mean that the court says that they can buy whatever sex toys they want in doing so.

I don’t see what you are saying about Bowers. Bowers was a facial challenge to a statute, and as the 11th circuit intimated, Lawrence may have simply overruled Lawrence to the extent that it could be read as allowing for criminal prosecution of homosexual sodomy. Therefore, as other powers say, the actual effect of Lawrence upon Bowers remains to be seen since Lawrence (an as-applied challenge resulting from an actual criminal prosecution) never said explicitly said homosexual sex was a fundamental right. The majority only said that prohibiting it implicated one’s 14th-amendment “liberty” interest.

>>>"The State cannot demean their existence or control their destiny by making their private sexual conduct a crime." This implies that I have a right to utilize sexual toys in my home to gratify myself.

How does it imply that at all. You have said this three times, but you have not explained why, in your view, a freedom to engage in private sexual conduct means a freedom to buy whatever one wants because they might happen to use it during sexual relations?

I don’t put much stock into antidotal accounts of cops doing this. (Especially from women.) If someone takes something from you, I really don’t care, until you go to court to try and enforce whatever rights you have.

The anectdotal account should have been left off but wasn't. I know it was true becasue I know these two fairly well but in reality they probably had a whole box of the things (which definitely could border on intent to distribute).

I did not say it means I can buy whatever I want because I use it sexually. I actually stated that the state can regulate sales (probably should have added "of obscene materials") but that the possession of the items probably is now legal due to the privacy issue raised in Lawrence. If the possession is now legal the challenge on the ban of sales will at some point possibly come to fruition. But it will take a while. At some point the court will get the right argument using Lawrence and a few other unrelated cases to get this overturned.

If I have learned one thing about the courts in the last 30 years, it is that they change their mind constantly. The right set of cases used as an argument can change a lot. I feel that the court has already fully recognized the right to privacy in the bedroom with Lawrence and the overturning of Bowers and the right set of cases on the sales front will be found to overturn that ban.

If your friends did not challenge any confiscation of their instruments to the highest level possible, then your story is useless.

It is easy to say that the “courts change their minds” but more often than not, in looking at a court’s analysis, you can see how they have refined their earlier analysis, and some results that were not predicted by the loser happened. Obviously we make our money telling people that the only one result is mandated by precedent (we are much too sophisticated to use the word “clearly”), but the other side does, as well. Usually only one wins. The loser writes a press release saying that the result was unprecedented or incorrect. The lay people eat this stuff up because they eat everything up.

Look, there was a challenge to a statute banning the sale of such devices. The 11th circuit rejected the challenge. We probably have not heard the end of it, but whatever the challenge is, it is live enough to have survived at least one trip to the 11th circuit, and two trips to the district court.