****Another long legal post****

To round out the legal news, sex toys are officially banned in Alabama, with punishment of up to a year in prison if you're caught selling one. There's no punishment for using one, however. . . . Most of the original links are from How Appealing.

In Lawrence v. State, the United States Supreme Court addressed a Texas anti-sodomy law. After a lengthy discussion of the history of such laws and the prior Bowers v. Hardwick Supreme Court case calling them constitutional, overruled Bowers. They came to this conclusion:

"The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. “It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.”
Casey, supra, at 847.

The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual. Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations
can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom."

According to this 11th Circuit opinion, this doesn't change the analysis in the case at hand:

"We concluded that, although Lawrence clearly established the unconstitutionality of criminal prohibitions on consensual adult sodomy, “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. Id. at 817. We noted in particular that the Lawrence opinion did not employ fundamental-rights analysis and that it ultimately applied rational basis review, rather than strict scrutiny, to the challenged statute."

Technically, Lawrence was decided on substantive due process grounds, as shown in the above quote. It answered two of the three issues on appeal in Lawrence:

“2. Whether Petitioners’ criminal convictions for adult
consensual sexual intimacy in the home violate their
vital interests in liberty and privacy protected by the
Due Process Clause of the Fourteenth Amendment?
“3. Whether Bowers v. Hardwick, 478 U. S. 186
(1986), should be overruled?”

The 14th Amendment Due Process clause reads as follows:

"AMENDMENT XIV
Passed by Congress June 13, 1866. Ratified July 9, 1868.
Section 1.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

The law that the parties were charged with violating in Lawrence:

"The complaints described their crime as “deviate sexual
intercourse, namely anal sex, with a member of the same
sex (man).” App. to Pet. for Cert. 127a, 139a. The applicable
state law is Tex. Penal Code Ann. §21.06(a) (2003).
It provides: “A person commits an offense if he engages in
deviate sexual intercourse with another individual of the
same sex.” The statute defines “[d]eviate sexual intercourse”
as follows:
“(A) any contact between any part of the genitals of
one person and the mouth or anus of another person;
or
“(B) the penetration of the genitals or the anus of another
person with an object.” §21.01(1)."

The short version of a very involved subject: "Substantive due process" analysis usually covers cases not involving suspect classifications, or where the primary issue is the right to engage in the prohibited conduct. An "equal protection" analysis is triggered when the conduct may or may not involve a fundamental right, but the statute appears to make impermissible classifications between people (race, gender, etc.). The Supreme Court framed the Lawrence decision in substantive due process terms:

"We conclude the case should be resolved by determining whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution."

The simple analysis of substantive due process claims - from my old Con Law 2 notes which are still on my laptop (what a geek I am): "If the right was fundamental, it triggers higher scrutiny. If not, rational basis." Hence, the 11th Circuit decision in this case. Citing an earlier case in which it analyzed Lawrence, the Court states in a footnote:

"We are particularly hesitant to infer a new fundamental liberty interest from an opinion whose language and reasoning are inconsistent with standard fundamental-rights analysis. The Court has noted that it must “exercise the utmost care whenever [it is] asked to break new ground” in the field of fundamental rights, which is precisely what the Lawrence petitioners and their amici curiae had asked the Court to do. That the Court declined the invitation is apparent from the absence of the "two primary features" of fundamental rights analysis in its opinion. First, the Lawrence opinion contains virtually no inquiry into the question of whether the petitioners’ asserted right is one of 'those fundamental rights and liberties which are, 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 they were sacrificed.' Second, the opinion notably never provides the ''careful description of the asserted fundamental liberty interest" that is to accompany fundamental-rights analysis. Rather, the constitutional liberty interests on which the Court relied were invoked, not with 'careful description,' but with sweeping generality. Most significant, however, is the fact that the Lawrence Court never applied strict
scrutiny, the proper standard when fundamental rights are implicated, but instead invalidated the Texas statute on rational-basis grounds, holding that it 'furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.'"

The 11th Circuit then proceeds to analyze the concepts of a "careful description of the asserted fundamental liberty interest" and "history and tradition implicit in the concept of ordered liberty".

"the scope of the liberty interest at stake here must be defined in reference to the scope of the Alabama statute. We begin by observing that the broad rights to “privacy” and “sexual privacy” invoked by the ACLU are not at issue. The statute invades the privacy of Alabama residents in their bedrooms no more than does any statute restricting the availability of commercial products for use in private quarters as sexual enhancements. . . At a minimum, therefore, the putative right at issue is the right to sell and purchase sexual devices. . . not simply in terms of whether the Constitution protects a right to sell and buy sexual devices, but whether it protects a right to use such devices."

A favorite tactic in interpreting fundamental rights cases - where you want to find no right, interpret the definition of the "right" very narrowly. It is supported by the facts, but note that Roe v. Wade was defined as a right to privacy, not the right to obtain a first-trimester abortion.

Regarding the "history and tradition implicit in the concept of ordered liberty":

"We find that the district court, in reaching this conclusion, erred on four levels. The first error relates back to the district court’s over-broad framing of the asserted right in question. Having framed the relevant right as a generalized “right
to sexual privacy,” the district court’s history and tradition analysis consisted largely of an irrelevant exploration of the history of sex in America. Second, we find that this analysis placed too much weight on contemporary practice and attitudes with respect to sexual conduct and sexual devices. Third, rather than look for a history and tradition of protection of the asserted right, the district court asked whether there was a history and tradition of state non-interference with the right. Finally, we find that the district court’s uncritical reliance on certain expert
declarations in interpreting the historical record was flawed and that its reliance on certain putative “concessions” was unfounded."

They conclude:

"Hunting expeditions that seek trophy game in the fundamental-rights forest must heed the maxim “look before you shoot.” Such excursions, if embarked upon recklessly, endanger the very ecosystem in which such liberties thrive—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. See Glucksberg, 521 U.S. at 720, 117 S. Ct. at 2267-68. We are particularly mindful of this fact in the delicate area of morals legislation. One of the virtues of the democratic process is that, unlike the judicial process, it need not
take matters to their logical conclusion. If the people of Alabama in time decide that a prohibition on sex toys is misguided, or ineffective, or just plain silly, they can repeal the law and be finished with the matter. On the other hand, if we today craft a new fundamental right by which to invalidate the law, we would be bound to give that right full force and effect in all future cases—including, for example, those involving adult incest, prostitution, obscenity, and the like."

Cats and dogs living together, utter chaos.

An interesting side point: On an earlier appeal the 11th Circuit ruled that the law passed the rational basis test:

"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 and indisputably is a legitimate government interest under rational basis scrutiny."

That was 1999, pre-Lawrence. The Court then framed the issues in this appeal as whether the District Court overstepped its bounds in deciding there was a fundamental right to purchase and use sex toys. It indicated Lawrence didn't support such a right because it didn't the make sexual contact at issue a fundamental right, but instead struck the Texas sodomy law down on rational basis grounds - that it impermissibly interfered with conduct in the bedroom without a rational basis to do so. But even granting that, from what I can see nowhere does the 11th Circuit majority opinion address whether the prohibition on sex toys is an impermissible interference in the bedroom without a rational basis to do so in light of Lawrence - whether the Alabama law should be struck as violating the substantive due process clause under what the opinion concedes Lawrence did say, as opposed to what it claims Lawrence didn't say?

****UPDATE*****
Welcome to everyone wandering over from How Appealing, and a thank you to Howard Bashman for linking to me. Feel free to look around, but don't expect it to be too serious.