An ordinance of the City of Sandy Springs, Georgia, prohibits the sale of sex toys. Businesses and individuals have challenged this statute as unconstitutional under the Fourteenth Amendment’s Due Process Clause in controlling their consensual, sexual behavior in the privacy of their homes. The district court and a panel of the U.S. Court of Appeals for the Eleventh Circuit upheld the ordinance given the Eleventh Circuit precedent of Williams v. Attorney General (2004), which upheld an Alabama sex-toy-sales ban.

Cato has now joined the DKT Liberty Project on a brief to the entire (en banc) Eleventh Circuit asking it to overturn Williams, which is inconsistent with more recent Supreme Court precedent in United States v. Windsor (2013) and Obergefell v. Hodges (2015) (the DOMA and same-sex marriage cases, respectively). Williams had relied on Washington v. Glucksberg (1997), where the Supreme Court declared that for a right to be protected under the Fourteenth Amendment, its specific articulation must be “deeply rooted in our history and traditions” or “fundamental to our concept of constitutionally ordered liberty.”

Williams upheld the law after finding no history or traditions concerning sex toys, though the Fifth Circuit disagreed in 2008 in striking down a similar Texas restriction. Windsor and Obergefell then raised the protection of rights concerning private sexual intimacy and Obergefell described this right as “fundamental.” Obergefell also explicitly rejected the Glucksberg test, at least as applied to sexual intimacy, as “inconsistent with the approach this Court has used in discussing other fundamental rights.”

Williams also misinterpreted Lawrence v. Texas (2003), which in striking down a ban on homosexual sodomy made clear that it wasn’t merely the right to perform “a particular sexual act” that was in question in these intimacy cases, but the infringement of rights regulating “the most private human conduct, sexual behavior, in the most private of places, the home.” Lawrence also made clear that state assertion of a “morality” interest isn’t a sufficient justification for limiting the right to adult sexual intimacy. Lawrence held that, as to “whether the majority may use the power of the State to enforce these [moral] views on the whole society,” the answer is no.

Williams essentially ignored Lawrence, given that state’s only asserted interest in upholding the law here is also based on morality. Windsor also clarified the prohibition on morality being a “legitimate state interest” was a holding of Lawrence. The sexual devices at issue here implicate “the most private human conduct, sexual behavior … in the most private of places, the home.”

Although the Sandy Springs ordinance only prohibited the sale of sex toys, and not possession or use, even Williams recognized that “restrictions on the ability to purchase an item are tantamount to restrictions on the use of that item.” The Supreme Court also recognized in Carey v. Population Services International (1977) that the same test must be used for such burdens on the right as prohibiting its exercise entirely, noting that the burden need not be “as great as that under a total ban on distribution.”

Williams is simply no longer good law and should be overturned. Bans on commercial access to sex toys, like restrictions on other forms of sexual intimacy, are unconstitutional. The Eleventh Circuit will hear Flanigan’s Enterprises v. City of Sandy Springs later this spring.