One more personal privacy right gone.

[DKSuddeth]

Fed court declares no constitutional right to sexual privacy

BIRMINGHAM, Ala. - A federal appeals court Wednesday upheld a 1998 Alabama law banning the sale of sex toys in the state, ruling the Constitution doesn't include a right to sexual privacy.

In a 2-1 decision overturning a lower court, a three-judge panel of the 11th U.S. Circuit Court of Appeals said the state has a right to police the sale of devices that can be sexually stimulating.

The American Civil Liberties Union, which represented merchants and users who sued to overturn the law, asked the appeals court to rule that the Constitution included a right to sexual privacy that the ban on sex toy sales would violate. The court declined, indicating such a decision could lead down other paths.

"If the people of Alabama in time decide that a prohibition on sex toys is misguided, or ineffective, or just plain silly, they can repeal the law and be finished with the matter," the court said.

"On the other hand, if we today craft a new fundamental right by which to invalidate the law, we would be bound to give that right full force and effect in all future cases including, for example, those involving adult incest, prostitution, obscenity, and the like."

Attorney General Troy King said the court "has done its duty" in upholding the law.

Sherri Williams, an adult novelty retailer who filed the lawsuit with seven other women and two men, called the decision "depressing."

"I'm just very disappointed that courts feel Alabamians don't have the right to purchase adult toys. It's just ludicrous," said Williams, who lives in Florida and owns Pleasures stores in Huntsville and Decatur. "I intend to pursue this."

U.S. District Judge Lynwood Smith Jr. of Huntsville has twice ruled against the state law, deciding in 2002 that the sex toy ban violated the constitutional right to privacy. The state appealed both times and won.

The state law bans only the sale of sex toys, not their possession, the court said, and it doesn't regulate other items including condoms or virility drugs. "The Alabama statute proscribes a relatively narrow bandwidth of activity," U.S. Circuit Judge Stanley F. Birch Jr. wrote.

Circuit Judge Rosemary Barkett disagreed, saying the decision was based on the "erroneous foundation" that adults don't have a right to consensual sexual intimacy and that private acts can be made a crime in the name of promoting "public morality."

someone tell me again that the government isn't trying to turn us into a 'big brother' nation.

 

[Big D]

My wife is my sex toy, good thing we don't live in Alabama.

 

[Merlin1047]

someone tell me again that the government isn't trying to turn us into a 'big brother' nation.

Communities have long had the option to regulate certain activities within their jurisdiction. For example - some localities ban the sale of alcoholic beverages, some prohibit sale of alcohol on Sunday. Other communities prohibit strip clubs or public nudity. Still others prohibit the sale of pornographic or sexually explicit material. All of these products are generally used within the privacy of one's home, yet all are regulated. The practice of regulating certain of these activities pre-dates the Declaration of Independence.

Now I don't care how kinky consenting adults want to get within the confines of their own home, but I fail to understand why you feel that this particular law is more egregious than any of the others. Care to enlighten me?

 

[DKSuddeth]

Communities have long had the option to regulate certain activities within their jurisdiction. For example - some localities ban the sale of alcoholic beverages, some prohibit sale of alcohol on Sunday. Other communities prohibit strip clubs or public nudity. Still others prohibit the sale of pornographic or sexually explicit material. All of these products are generally used within the privacy of one's home, yet all are regulated. The practice of regulating certain of these activities pre-dates the Declaration of Independence.

Now I don't care how kinky consenting adults want to get within the confines of their own home, but I fail to understand why you feel that this particular law is more egregious than any of the others. Care to enlighten me?

would love to. heres the two statements from the article that bother me.

1) A federal appeals court Wednesday upheld a 1998 Alabama law banning the sale of sex toys in the state, ruling the Constitution doesn't include a right to sexual privacy.

this is a clear example of how a politically biased court(doesn't matter whether its left or right at this point) uses its 'judical activism' to dictate and reduce what used to be freedom. They are using their positions to basically rediefine the constitution as a document that gives them power over the citizenry instead of the original intent of limiting its power over us.

2) Circuit Judge Rosemary Barkett disagreed, saying the decision was based on the "erroneous foundation" that adults don't have a right to consensual sexual intimacy and that private acts can be made a crime in the name of promoting "public morality."

Anyone who reads this and agrees that the judicial branch is responsible for promoting public morality should be made public enemy number one. The founding fathers incorporated peoples power over the government to avoid things like the inquisition, a ruling body oppressing the people, and a moral code dictated by a government. Thats why its a government of the people, for the people, and by the people.

 

[Annie]

I might be a bit confused here, do see DK's point. Seems to me the ban should be on the sales of, such as most towns have via zoning. Good lord, I'd love to see them go through houses! Remember that quiz I did in humor a while back? Which are doggie toys and which, something else? :shocked:

 

[DKSuddeth]

It says they have a right to own it, just not sale it. So this really wouldn't be that they "don't have a right to consensual sexual intimacy" or the "private acts can be made a crime". They just don't want the shit sold in their state, not that it's against the law for it to be owned and operated.

Maybe I'm reading this wrong, wouldn't be the first time, lol!

Thats what the law says, yes. The troubling part is the extra comments made by the court and their implicit interpretation of 'if its not granted in the constitution, its not a right'. Thats the complete opposite of what the constitution says. So, in a sense, thats exactly what the court is saying....That you DON'T have the right to sexual privacy.

 

[dilloduck]

WE have defeated this before !-----It's time for the dildo-duck airlift ! My poor sister lives there. Donate people donate !!!!

 

[freeandfun1]

Why did EVERYBODY overlook the most important and valid statement in the entire article. This statement alone, explains why the court is right on this issue:

"If the people of Alabama in time decide that a prohibition on sex toys is misguided, or ineffective, or just plain silly, they can repeal the law and be finished with the matter," the court said.

The people of Alabama have a right to decide. It is not a decision for the courts to make. The prohibition is only on the sale of the items. The point the court made a good point about the slippery slope of getting the courts involved.

 

[DKSuddeth]

Okay, I understand what you're saying. I also can see what is said here...

"if we today craft a new fundamental right by which to invalidate the law, we would be bound to give that right full force and effect in all future cases including, for example, those involving adult incest, prostitution, obscenity, and the like."

This is the court's fallacious argument. They aren't 'crafting a new right' and it wouldn't be invalidating the law. They've used the adult incest, prostitution, obscenity and the like to get a popular consensus that they did the right thing, thereby validating their erroneous constitution interpretation.

It was completely possible to validate the law and NOT declare something non-constitutional simply because they could.

 

[DKSuddeth]

Why did EVERYBODY overlook the most important and valid statement in the entire article. This statement alone, explains why the court is right on this issue:

The people of Alabama have a right to decide. It is not a decision for the courts to make. The prohibition is only on the sale of the items. The point the court made a good point about the slippery slope of getting the courts involved.

Then why make this statement? A federal appeals court Wednesday upheld a 1998 Alabama law banning the sale of sex toys in the state, ruling the Constitution doesn't include a right to sexual privacy.

 

[freeandfun1]

Where do "personal privacy rights" stop? I should then be able to do anything in my home that I want. Anything - as long as I keep it "private".

The law is not banning the use, only the sale. I still don't see how not striking down the ban on the sale of the items violates "personal rights". As Merlin pointed out, there are a lot of communities that ban the sales of various items. Alabama is a state correct? So the state is the community. If the law was passed, by the people, in a legal manner, then repealing it would violate the rights of the community. It is up to the community to repeal the law. Not the courts.

 

[DKSuddeth]

Where do "personal privacy rights" stop? I should then be able to do anything in my home that I want. Anything - as long as I keep it "private".

The law is not banning the use, only the sale. I still don't see how not striking down the ban on the sale of the items violates "personal rights". As Merlin pointed out, there are a lot of communities that ban the sales of various items. Alabama is a state correct? So the state is the community. If the law was passed, by the people, in a legal manner, then repealing it would violate the rights of the community. It is up to the community to repeal the law. Not the courts.

privacy rights stop at the commision of a crime. There are obvious points of this such as molestation and rape. consensual adults, however, have complete privacy guaranteed by the constitution and the courts just invalidated that.

Again, I'm not disputing the point about validating the law. The state can indeed prohibit the sale of the devices. What I'm saying is that the court went out of its jurisdiction and in direct conflict with the constitution by stating that theres no constitutional right to sexual privacy. They are not authorized, via the constitution, to deny a right because its not granted in the constitution. Thats not how the constitution works.

 

[freeandfun1]

Then why make this statement? A federal appeals court Wednesday upheld a 1998 Alabama law banning the sale of sex toys in the state, ruling the Constitution doesn't include a right to sexual privacy.

Again, I am not sure why a FEDERAL court was butting in on a STATE law.

Next, the next paragraph actually says, "In a 2-1 decision overturning a lower court, a three-judge panel of the 11th U.S. Circuit Court of Appeals said the state has a right to police the sale of devices that can be sexually stimulating."

I am betting that the statement ". . . . ruling the Constitution doesn't include a right to sexual privacy" is being inserted by the author of the article. I would like to read what the court really did say.

 

[DKSuddeth]

Again, I am not sure why a FEDERAL court was butting in on a STATE law.

That should be obvious, due to the appeal. happens every time.

I am betting that the statement ". . . . ruling the Constitution doesn't include a right to sexual privacy" is being inserted by the author of the article. I would like to read what the court really did say.

that does make a point, i'll try to find that.

 

[freeandfun1]

This LINK gives a good analysis of the case.

I don't understand how the banning of the sale of the items violates anybody's rights. They can still get them, they just have to buy them from out of state. When I was a teenager, we had to drive to the next county to buy booze. This is not that much different.

 

[popefumanchu]

privacy rights stop at the commision of a crime. There are obvious points of this such as molestation and rape. consensual adults, however, have complete privacy guaranteed by the constitution and the courts just invalidated that.

Again, I'm not disputing the point about validating the law. The state can indeed prohibit the sale of the devices. What I'm saying is that the court went out of its jurisdiction and in direct conflict with the constitution by stating that theres no constitutional right to sexual privacy. They are not authorized, via the constitution, to deny a right because its not granted in the constitution. Thats not how the constitution works.

The constitution works exactly that way. It tells the government what its boundaries are and what rights are protected. If it's not in there, it isn't a protected right. The court did a good job.

There are many assumed rights that judges have added to the constitution. There is nothing about "separation of church and state" or "privacy" in the bill of rights. Judges have created these concepts through creative interpretation. Now the ACLU is suing every reference to God or christianity in the public square and abortion is legal.

If only the 11th circuit could smack some sense into the 9th circus.

 

[DKSuddeth]

This LINK gives a good analysis of the case.

I don't understand how the banning of the sale of the items violates anybody's rights. They can still get them, they just have to buy them from out of state. When I was a teenager, we had to drive to the next county to buy booze. This is not that much different.

It doesn't, which is why I'm completely perplexed that these statements are made:

Americans do not have a fundamental right to sexual privacy, a 2-1 decision of the 11th U.S. Circuit Court of Appeals said on Wednesday.

Birch maintains that although the U.S. Supreme Court last year struck down a Texas law criminalizing homosexual sodomy, the justices have not decided fully that sexual privacy is a fundamental right protected by the Constitution.

Barkett claims that the court is refusing to apply the sodomy decision to laws that violate people's right "to be left alone in the privacy of their bedrooms."

 

[DKSuddeth]

The constitution works exactly that way. It tells the government what its boundaries are and what rights are protected. If it's not in there, it isn't a protected right. The court did a good job.

No, thats completely wrong. The constitution does NOT provide limits to the people, it provides limits to the government. Any right not expressly forbidden in the constitution is automatically granted, not the other way around. The court screwed up.

 

[popefumanchu]

No, thats completely wrong. The constitution does NOT provide limits to the people, it provides limits to the government. Any right not expressly forbidden in the constitution is automatically granted, not the other way around. The court screwed up.

There are a lot of things not mentioned in the constitiution. The government provides limits to the people. The constitution limits the government. You do not have the right to do whatever isn't mentioned in the constitution. There is no right to privacy protected in the constitution. If the people want a law restricting privacy, they can have it. If you want privacy protected, the constitution must be amended to specifically protect privacy.

The right to privacy was created by the courts. It was the basis for Roe v. Wade. The court overstepped its bounds. This court is trying to do the right thing.

 

[DKSuddeth]

There are a lot of things not mentioned in the constitiution. The government provides limits to the people. The constitution limits the government. You do not have the right to do whatever isn't mentioned in the constitution. There is no right to privacy protected in the constitution. If the people want a law restricting privacy, they can have it. If you want privacy protected, the constitution must be amended to specifically protect privacy.

The right to privacy was created by the courts. It was the basis for Roe v. Wade. The court overstepped its bounds. This court is trying to do the right thing.

I believe that this - Amendment IX - Rights Retained by the People
The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people. - proves me right. The right to privacy was created by the people, not the courts, not the government, but by the people. We are not a nation with limits imposed by the government....at least we are not supposed to be.