Sherri Williams v. Attorney General of Alabama

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Sherri Williams v. Attorney General of Alabama

Legal decision

By: Judges of the U.S. Court of Appeals for the Eleventh Circuit

Date: July 28, 2004

Source: Sherri Williams v. Attorney General of Alabama. Sherri Williams, B. J. Bailey, Plaintiffs-Appellees, Bette Faye Haggermaker, et al., Plaintiffs, versus Attorney General of Alabama: Appeal from the United States District Court for the Northern District of Alabama. July 28, 2004. Full text of second decision on this case by U.S. Court of Appeals for the 11th Circuit decision. Available at: 〈〉 (accessed March 9, 2006).

About the Author: A three-judge panel from the Eleventh Circuit of the U.S. Court of Appeals issued this opinion. Established by Congress in 1981, the U.S. Court of Appeals for the Eleventh Judicial Circuit has jurisdiction over federal cases originating in the states of Alabama, Florida, and Georgia.


These excerpts are from the text of a two-to-one decision of a panel of three judges from the U.S. 11th Circuit Court of Appeals, issued July 28, 2004. The decision capped several years of convoluted litigation in which the American Civil Liberties Union (ACLU) filed suit against the state of Alabama on behalf of several purchasers of "sex toys," defined by Alabama law as "any device designed or marketed as useful primarily for the stimulation of human genital organs." At issue was Alabama's 1998 Anti-Obscenity Enforcement Act, which made the sale of sex toys a crime. The ACLU argued that the law both lacked a rational basis and violated fundamental rights. The law banned only the sale of sex toys, not their possession or use. Georgia and Texas are the only other U.S. states banning the sale of sex toys.

In 1999, an Alabama federal district court decided against the state on the ground that the law lacked a rational basis. The judge declined to rule on whether the law violated fundamental rights, reasoning that the plaintiffs "had not presented an evidentiary basis for concluding that their asserted rights to sell, purchase, possess, and use sexual devices were among 'those fundamental rights and liberties which are, objectively, deeply rooted in this Nation's history and tradition …'"

Alabama appealed to the U.S. 11th Circuit Court, which on January 21, 2001, concluded that the district court had "erred when concluding that the Alabama statue's absolute ban on the sale of sexual devices was not rationally related to a proper governmental purpose" (in the words of the district court's case history). As the 11th Circuit put it, "The State's interest in public morality is a legitimate interest rationally served by the statute." Regarding the plaintiffs' argument that their fundamental rights were violated by the law, the 11th Circuit ruled that there was "no controlling precedent that specifically establishes the facial [i.e., obvious] unconstitutionality of this statue" and that the lower court had failed to address the plaintiffs' challenge to the law's constitutionality "as applied" to their particular persons. The 11th Circuit court remanded (sent back) the case to the district court for consideration of the fundamental-rights question.

In 2002, the district court held that the plaintiffs had "met their burden of showing that there is a 'history, legal tradition, and practice' in this country of deliberate state noninteference with private sexual relationships between married couples, and a contemporary practice of the same between unmarried couples." For a second time the district court had ruled against Alabama.

Alabama appealed again to the 11th Circuit, which in 2004 overturned the circuit court's second ruling and upheld Alabama's anti-sex-toys law. Yet in the meantime, the U.S. Supreme Court had overturned a Texas law banning oral and anal sexual acts (Lawrence v. Texas, 2003), holding that states have no legitimate rational grounds for criminalizing noncommercial sexual practices performed in private by consenting adults. This seemed, at least to some observers, to establish something like a right to sexual privacy. The 11th Circuit, therefore, remanded the case for a second time to the district court and asked it to rule again on the rational-basis issue in light of Lawrence v. Texas. The district court decided in February, 2006, that, in keeping with the opinions enforced earlier by the 11th Circuit, the Alabama law did have a rational basis. As of early 2006, Alabama had won.


Before Birch, Barkett, and Hill, Circuit Judges.

In this case, the American Civil Liberties Union ("ACLU") invites us to add a new right to the current catalogue of fundamental rights under the Constitution: a right to sexual privacy. It further asks us to declare Alabama's statute prohibiting the sale of "sex toys" to be an impermissible burden on this right. Alabama responds that the statute exercises a time-honored use of state police power—restricting the sale of sex. We are compelled to agree with Alabama and must decline the ACLU's invitation….

The Alabama statute proscribes a relatively narrow bandwidth of activity. It prohibits only the sale—but not use, possession, or gratuitous distribution—of sexual devices (in fact, the users involved in this litigation acknowledge that they already possess multiple sex toys). The law does not affect the distribution of a number of other sexual products such as ribbed condoms or virility drugs. Nor does it prohibit Alabama residents from purchasing sexual devices out of state and bringing them back into Alabama. Moreover, the statute permits the sale of ordinary vibrators and body massagers that, although useful as sexual aids, are not "designed or marketed "primarily" for that particular purpose. Finally, the statute exempts sales of sexual devices "for a bona fide medical, scientific, educational, legislative, judicial, or law enforcement purpose…."

This case, which is now before us on appeal for the second time, involves a challenge to the constitutionality of the Alabama statute. The ACLU, on behalf of various individual users and vendors of sexual devices, initially filed suit seeking to enjoin the statute on 29 July 1998, a month after the statute took effect. The ACLU argued that the statute burdens and violates sexual-device users' right to privacy and personal autonomy under the Fourteenth Amendment to the United States Constitution….

The only question on this appeal is whether the statute, as applied to the involved users and vendors, violates any fundamental right protected under the Constitution. The proper analysis for evaluating this question turns on whether the right asserted by the ACLU falls within the parameters of any presently recognized fundamental right or whether it instead requires us to recognize a hitherto unarticulated fundamental right….

The ACLU invokes "privacy" and "personal autonomy" as if such phrases were constitutional talismans. In the abstract, however, there is no fundamental right to either. See, e.g., Glucksberg, 521 U.S. at 725, 117 S. Ct. at 2270 (fundamental rights are "not simply deduced from abstract concepts of personal autonomy"). Undoubtedly, many fundamental rights currently recognized under Supreme Court precedent touch on matters of personal autonomy and privacy. However, "[t]hat many of the rights and liberties protected by the Due Process Clause sound in personal autonomy does not warrant the sweeping conclusion that any and all important, intimate, and personal decisions are so protected." Such rights have been denominated "fundamental" not simply because they implicate deeply personal and private con-siderations, but because they have been identified as "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 they were sacrificed."

Nor, contrary to the ACLU's assertion, have the Supreme Court's substantive-due-process precedents recognized as free-standing "right to sexual privacy." The Court has been presented with repeated opportunities to identify a fundamental right to sexual privacy—and has invariably declined. See, e.g., Carey v. Population Servs. Int'l, 431 U.S. 678, 688 n.5, 97 S. Ct. 2010, 2018 n. 5 (1977) (noting that the Court "has not definitively answered the difficult question whether and to what extent the Constitution prohibits state statutes regulating private consensual sexual behavior among adults, and we do not purport to answer that question now") (internal citation and punctuation omitted). Although many of the Court's "privacy" decisions have implicated sexual matters, se, e.g. Planned Parenthood v. Casey, 505 U.S. 833, 112 S. Ct. 2791 (1992) (abortion); Carey, 431 U.S. at 678, 97 S. Ct. at 2010 (contraceptives), the Court has never indicated that the mere fact that an activity is sexual and private entitles it to protection as a fundamental right….


At issue in this series of decisions is the existence of a Constitutional right to privacy. Generally speaking, social conservatives in the U.S. deny that such a right exists, while liberals tend to assert that it does. In Williams v. Attorney General of Alabama, both the majority opinion (by Judge Stanley Birch, a 1990 appointee of President George H. W. Bush) and the dissent (by Judge Rosemary Barkett, a 1994 appointee of President Bill Clinton) made impassioned arguments on the question of whether a right to privacy exists. Judge Birch wrote that the majority "decline[s] the ACLU's invitation" to "add a new right to the catalogue of fundamental rights under the Constitution: a right to sexual privacy…. Hunting expeditions that seek trophy game in the fundamental-rights forest … if embarked upon recklessly, endanger … our republican democracy. Once elevated to constitutional status, a right is effectively removed from the hands of the people and placed into the guardianship of unelected judges."

Judge Barkett wrote that the majority's assertions "directly conflict with the Supreme Court's holding in Lawrence v. Texas and that "This case is … about the tradition of American citizens from the inception of our democracy to value the constitutionally protected right to be left alone in the privacy of their bedrooms and personal relationships…. Applying the analytical framework of Lawrence compels the conclusion that the Due Process Clause [of the Constitution] protects a right to sexual privacy that encompasses the use of sexual devices."

As the divergent outcomes in Lawrence v. Texas and Williams v. Attorney General of Alabama show, the question of a "right to privacy" is in dispute or flux in American jurisprudence. It is likely to remain so for the foreseeable future.


Web sites

Ringel, Jonathan. "11th Circuit Nixes Sex Toys, Sex Rights." Fulton County Daily Report, July 29, 2004. Available from at: 〈〉 (accessed March 9, 2006).

Sherri Williams v. Attorney General of Alabama. Sherri Williams, B. J. Bailey, Plaintiffs-Appellees, Bette Faye Haggermaker, et al., Plaintiffs, versus Attorney General of Alabama: United States District Court, Northern District of Alabama, Northeastern Divison. Feb. 28, 2006. Full text of final U.S. District Court memorandum opinion on this case. Available at 〈〉 (accessed March 9, 2006).

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Sherri Williams v. Attorney General of Alabama

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