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Saturday, February 24, 2007
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 LOCKING UP THE TOYBOX: THE SAD, STRANGE SAGA OF WILLIAMS V. ATTORNEY GENERAL OF ALABAMA
If you don't cherish and adore the lovely Joan of the indomitable Seven Inches of Sense you were born wrong and there's very likely no hope for you to become a good and decent member of society. And a minimum, you should be forcibly sterilized and, at worst, have your feet broken in multiple places. If you happen to be a gentleman looking for a blog that will break your heart and cause a painful swelling in your testicles, Seven Inches of Sense is the place to go. In that she has a sexual appetite as ravenous and depraved as my own and is just as shy about talking about it, Joan is my soul mate.
That's why I was very curious about what Joan thought about the ruling of the 11th Circut Court of Appeals on the constitutionality of her home state's effective ban on sex toys. You know, most bloggers go on endlessly about dopey shit like free speech and due process of law, but Joan and I are concerned about the really important stuff, like the freedom to choose what you shove up your ass. Sometimes a giant cucumber just won't cut it and your heart - and rectum - yearn for something a little more ... motorized.
Well, if you happen to live in Alabama, you're fucked. And the 11th Circut saw to it this week that you stay fucked.
The state's interest in preserving "public morality" is enough to uphold Alabama's law banning the sale of sex toys, a federal appeals court ruled.
A three-judge panel of the 11th U.S. Circuit Court of Appeals decided unanimously that the state's criminal statute can forbid distribution of "any device designed or marketed as useful primarily for the stimulation of human genital organs." A group of people challenged the law in 1998 as an intrusion into their private decisions about sexual intimacy.
The American Civil Liberties Union helped with the case, and a spokesman in New York said Thursday it was considering an appeal.
The decision is the latest in a long legal battle since the ban went into effect about nine years ago. This was the third review by the Atlanta-based appeals court, which this time was asked to consider whether public morality was a rational basis for the ban in light of the U.S. Supreme Court decision in 2003 that overturned a Texas law banning sodomy. As Joan points out in this essay, Alabama doesn't exactly "forbid distribution" of instruments of self-gratification, it forbids anyone profiting from said distribution. One could argue that the state legislature is all about free love, but that would be a silly argument and I'm far too serious a man for that.
The statute is at once incredibly dumb and maybe clever to the point of incandescent evil. Apparently even Republicans are bright enough to know that an outright ban of the possession of marital aids wouldn't survive a court challenge on privacy grounds. But a ban on the commercial distrubution of them might do just that. In fact, it did. You can give away a jelly double-dong in Birmingham, you just can't sell one.
Because the ban is unenforceable in regard to shipments from out of state (which would be unconstitutional under the commerce clause,) It effectively only impacts poor rural women without Internet access or credit cards. The statute is essentially a public morality statement and a generally unenforceable one at that. Hardly a law as a law is commonly known to operate, it is really little more than Republicans being Republicans.
Of course, all of that was before the landmark decision in Lawrence v. Texas. Lawrence, far and away the single coolest thing the United States government has done since the end of slavery, did away with centuries of American shitheadery and recognized a fundamental right to sexual privacy. Actually, all it did was recognize what Griswold v. Connecticut and Roe v. Wade established over thirty years ago - that there are some things that are none of the government's fucking business.
This isn't the first time Williams has been before the 11th Circut. In fact, it's the fifth. In 2004, the Court demonstrated its inability to read when the reversed the district court's enjoining of the statute under the Lawrence precedent.
In Williams IV, we again reversed the judgment of the district court, holding
that there was no pre-existing, fundamental, substantive-due-process right to sexual privacy triggering strict scrutiny. Id. at 1238. In so holding, we determined that Lawrence, which had been decided after the district court's decision in Williams III, did not recognize a fundamental right to sexual privacy. Id. Furthermore, we declined to recognize a new fundamental right to use sexual devices. Id. at 1250. With strict scrutiny off the table, we remanded the case for further proceedings consistent with the opinion. Id. We advised that on remand, the district court should "examine whether our holding in Williams II that Alabama's law has a rational basis (e.g., public morality) remains good law" after Lawrence overruled Bowers v. Hardwick, 478 U.S. 186, 106 S. Ct. 2841, 92 L. Ed. 2d 140 (1986). Id. at 1238 n.9 (internal quotations omitted); see also id. at 1259 n.25 (Barkett, J., dissenting) ("On remand, the district court must consider whether our holding in Williams II . . . remains good law now that Bowers has been overruled."). We thus "save[d] for a later day" the question of whether public morality still serves as a rational basis for legislation after Lawrence." Id. at 1238 n.9. (emphasis mine.) In fact, Lawrence did recognize a fundmental right to sexual privacy. A prohibition on the states deciding on whom you might invite into your colon can hardly be seen as anything else. In their earlier Williams decision, the 11th Circut demonstrated that they are either willfully blind or functionally retarded. As a matter of fact, other circut courts of appeal have ruled exactly the opposite and clearly said that Lawrence negated similiar statues in the southwest and moutain states. These conflicting rulings by the circut courts of appeal guarantee that the Supreme Court will eventually settle the matter.
Having established that they are incapable of determining that a ruling establishes a right, the court of appeal remanded the case back to the district court to decide whether public morality is sufficient grounds to make it, well, a pain in the ass for our girl Joan to get a butt-plug.
Republicans are nothing if not consistent. They loudly proclaim the need for small government. It just so happens that their vision is of a government so small it can fit confortably in your asshole. Sure, they'll deregulate everything to the point that vermin like Ken Lay and Jeffrey Skilling can bankrupt everyone without breaking a sweat, but so long as sticky body parts aren't involved, the public morality isn't effected.
So back to district court the law went, and the law was found to be reasonable. And back to the Court of Appeal we go. This time, the court took a very interesting approach for a bunch of Republicans who believe in small government and local control.
Holding that the sale and advertisizing of marital aids can corrupt the innocent and send them right to hell (which is the basis of all public morality laws,) the court ruled that the law is proper and constitutional, which in all honesty, it probably is ... on those specific grounds. I disagree strongly with the court that that law doesn't violate Lawrence. I also somehow doubt that the district court and the other circuts are wrong and the 11th is right, and I'm pretty sure that the Supreme Court will rule that way when this mess inevitably ends up there.
But just because something is stupid that doesn't make it unconstitutional. Public morals legislation, while unspeakably stupid and incapable of doing nothing but convince me that government isn't interested in solving any real problems and should therefore not exist, are also unquestionably allowable under the constitution.
As Joan pointed out in her essay, there is a way to control the sale of unsavory products without banning their sale completely. It's called zoning. Perhaps you've heard of it. It does cool stuff like keep slaughterhouses out of your neighbourhood. It can do the same for dirty bookstores, too. And the best part of all? Because zoning is traditionally done by local government, there's no need for Montgomery or Washington to get involved, just the way Republicans say they like it!
I'm so good at making everybody happy, aren't I?
I personally love it when people piss and moan about wasting the court's time with cases like this, particularly when they blame the dildo enthusiasts for it. But let's take a look at what the state of Alabama has wasted on this case. We could start with their dignity for passing the fucking law in the first place, which, in all fairness, the 11th Circut pretty much said in their opinion. And God knows how many millions of dollars the Attorney General's office has spent defending it for years on end. If the state was looking for the perfect way to get the world to see them as silly and unserious, it was money well spent.
And for what? So a craven cabal of atavistic politicians can better secure the votes of superstitious yokels who are convinced that their neighbour's cock ring will lock them outside the gates of heaven forevermore. And making sure everyone gets into heaven is nothing if not a proper function of small government. People will continue to die on the streets of Birmingham, but your eternal soul will be protected from your filthy self-fuckery, by God!
Welcome to the twin worlds of politics and law, folks. You can check out anytime you like, but you can never leave.
Easy Listening Recommendation of the Day: I Want Your Sex By: George Michael From: Faith
PermalinkLabels: I Fought The Law, Laughter Joy and Lonliness and sex and sex and sex
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