Sexual privacy is not a right in Eleventh Circuit, despite Lawrence.

The Eleventh Circuit has refused to recognize "sexual privacy" as a fundamental right under the Constitution, upholding an Alabama law banning the commercial sale of sexual devices.

Last year in Lawrence v. Texas, the U.S. Supreme Court overturned a state law that criminalized homosexual activity between consenting adults. (539 U.S. 558 (2003).) But, the Eleventh Circuit decided, "'it is a strained and ultimately incorrect reading of Lawrence to interpret it to announce a new fundamental right'--whether to homosexual sodomy specifically or, more broadly, to all forms of sexual intimacy." (Williams v. Pryor, No. 02-16135, 2004 WL 1681149, at *4 (11th Cir. July 28, 2004), quoting Lofton v. Sec. of Dep't of Children & Family Servs., 358 F.3d 804, 817 (11th Cir. 2004) .)

"Obviously this is a far more significant issue than simply toys. It extends to the whole concept of privacy from government intrusion in these kinds of intimate relationships," said Michael Fees of Huntsville, Alabama, who represents the plaintiffs in the suit. "If a private homosexual activity among adults in Texas cannot be criminalized, then certainly this law in Alabama ought not withstand constitutional scrutiny, either."

Several vendors and individual users of sexual devices challenged the statute shortly after it took effect in 1998. They argued that its restriction on the sale of these products interfered with their access to and use of the devices. The law does not prohibit the sale of condoms, virility drugs, or massagers--only items "useful primarily for the stimulation of human genital organs." After a bench trial, the district court judge declined to recognize the privacy right but struck the law for having no rational basis. (41 F. Supp. 2d 1257 (N.D.Ala. 1999).)

In 2001, the Eleventh Circuit reversed that ruling, holding that the protection of public morality, was a rational basis for the law. But it remanded the case to the trial court to consider whether the statute was unconstitutional as applied. (240 F.3d 944 (11th Cir. 2001).) The district court again struck down the law, this time recognizing a fundamental right to sexual privacy. (220 F. Supp. 2d 1257 (N.D.Ala. 2002).)

The plaintiffs have requested en banc review, Fees said, because the three-judge panel's decision was inconsistent with the Lawrence opinion and contradicted points made in the first Eleventh Circuit ruling. He argued that although the right to sexual privacy is not explicit in the Constitution, the courts have extended rights in that area in previous cases, from Lawrence to lawsuits over condoms and reproductive rights.

In a dissenting opinion, Justice Rosemary Barkett agreed with Fees. "The majority refuses ... to acknowledge why the Court in Lawrence held that criminal prohibitions on consensual sodomy are unconstitutional," she wrote. Lawrence held this, she added, "because of the existence of the very right to private sexual intimacy that the majority [in this case] refuses to acknowledge."

The majority expressed concern that recognizing such a right would "theoretically encompass such activities as prostitution, obscenity, and adult incest--even if we were to limit the right to consenting adults."

But Fees said this was a tangential issue: "Elevating the issue of intimate privacy to the level of a constitutional right does not mean that there is no involvement by government, just like the freedom of speech does not grant its citizens the right to scream 'fire' in a crowded movie theater." What it does mean is that "the courts would scrutinize more carefully the government's attempted intrusion into that right."