[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT JAN 31 2001 No. 99-10798 THOMAS K. KAHN ________________________ CLERK
D. C. Docket No. 98-01938-CV-S-NE
SHERRI WILLIAMS, B. J. BAILEY, et al.,
Plaintiffs-Appellees,
versus
BILL PRYOR, in his official capacity as the Attorney General of the State of Alabama,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Northern District of Alabama _________________________ (January 31, 2001)
ON PETITION FOR REHEARING
Before ANDERSON, Chief Judge, BLACK and HALL*, Circuit Judges.
BLACK, Circuit Judge:
* Honorable Cynthia Holcomb Hall, U.S. Circuit Judge for the Ninth Circuit, sitting by designation. The opinion filed in this case on October 12, 2000, is withdrawn, and the
following opinion is substituted in its place. The petition for rehearing filed by
Appellees is otherwise DENIED.
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.
I. BACKGROUND
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).
After the 1998 amendment, the Alabama Code obscenity provisions provide,
in pertinent part, the following:
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.
2 Id. at 1259 (quoting Ala. Code § 13A-12-200.2(a)(1) (Supp. 1998)).1 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.
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.
1 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.”
3 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.
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).
II. ANALYSIS
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
4 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.
5 A. Rational Basis Review
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:
Where there are plausible reasons for Congress’ action, our inquiry is at an end. This standard of review is a paradigm of judicial restraint. . . .
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.,
6 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.2
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
2 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).
7 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.
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
8 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)).3 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
3 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.
9 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.
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.
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
10 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.
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
11 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
12 group, including homosexuals.4 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.
Third, the Equal Protection Clause as-applied analysis of City of Cleburne
has little relevance to the fundamental rights facial challenge raised by the
4 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.
13 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
14 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:
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).5 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
5 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.
15 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.
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
16 along suspect lines.” New Orleans v. Dukes, 427 U.S. 297, 303, 96 S. Ct. 2513,
2517 (1976).
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.
B. Fundamental Rights Analysis
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.
1. Facial Challenge
“A facial challenge to be successful ‘must establish that no set of
circumstances exists under which the Act would be valid.’” Gulf Power Co. v.
United States, 187 F.3d 1324, 1328 (11th Cir. 1999) (quoting United States v.
Salerno, 481 U.S. 739, 745, 107 S. Ct. 2095, 2100, 95 L. Ed. 2d 697 (1987)); see
also United States v. Frandsen, 212 F.3d 1231, 1235 (11th Cir. 2000) (stating that
“no set of circumstances” is the general rule for evaluating facial challenges in this
circuit); Jacobs v. Florida Bar, 50 F.3d 901, 906 n.20 (11th Cir. 1995) (“[W]hen a
plaintiff attacks a law facially, the plaintiff bears the burden of proving that the law
17 could never be constitutionally applied”) (citing New York State Club Ass’n, Inc. v.
City of New York, 487 U.S. 1, 11, 108 S. Ct. 2225, 2233, 101 L. Ed. 2d 1 (1988)).
Unless the statute is unconstitutional in all its applications, an as-applied challenge
must be used to attack its constitutionality.
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
18 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.
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:
[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
19 interest). 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.
We conclude there is no controlling precedent that specifically establishes
the facial unconstitutionality of this statute.6 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
6 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.
20 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.
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. This circuit has
21 recognized that a state may regulate materials deemed harmful to minors. See
American Booksellers v. Webb, 919 F.2d 1493, 1500-01 (11th Cir. 1990); see also
Ginsberg v. New York, 390 U.S. 629, 88 S. Ct. 1274 (1968) (state may
constitutionally regulate well-being of minors, and within this power to regulate is
the power to restrict access to materials rationally deemed to be harmful to
minors). Application of Alabama's statute to those who sell sexual devices to
minors, to such extent that those devices are deemed harmful to minors, would not
violate any fundamental right. The statute has possible constitutional applications
and therefore is not facially unconstitutional. The district court correctly rejected
the plaintiffs’ facial challenge to the statute.
2. As-Applied Challenges
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.
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
22 the statute is not facially unconstitutional because, in light of Webb and Ginsberg,
it may constitutionally be applied to those who sell to minors sexual devices which
are deemed harmful to minors, the as-applied challenges raised by the plaintiffs,
married or unmarried, implicate different and important interests in sexual privacy.
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”); 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 v. Hardwick, 478 U.S.
186, 209 n.4, 106 S. Ct. 2841, 2853 n.1 (1986)) (Blackmun, J., dissenting)
(questioning validity of categorizations of sexual activity depending on marital
23 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”).
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 &
24 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 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.
III. CONCLUSION
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.
REVERSED AND REMANDED.