Supreme Court won't hear challenge to sex toy ban

By Phillip Rawls
The Associated Press

The U.S. Supreme Court on Monday declined to hear a challenge to Alabama's ban on the sale of sex toys, ending a nine-year legal battle and prompting a warning to store owners to be prepared to clean off their shelves.

The owner of adult stores in north Alabama had asked the justices to throw out the law as an unconstitutional intrusion into the privacy of the bedroom. But the Supreme Court declined to hear the appeal, leaving intact a lower court ruling that the law is constitutional.

Sherri Williams, owner of Pleasures stores in Huntsville and Decatur, said she was disappointed to lose, but she plans a new lawsuit attacking the law on First Amendment free speech grounds.

"My motto has been they are going to have to pry this vibrator from my cold, dead hand. I refuse to give up," she said.

The state attorney general's office immediately notified county district attorneys, who are responsible for enforcement. The attorney general also planned to ask a federal judge to lift an injunction that kept the law from being enforced during Williams' legal challenge. Chris Bence, spokesman for Attorney General Troy King, said removing the injunction should take a couple of days.

Store owners should be aware that once the injunction is lifted, the law takes effect, Bence said. "At that point, district attorneys around the state should feel comfortable enforcing it," Bence said.

Alabama's "anti-obscenity" law, enacted in 1998, bans the distribution of "any device designed or marketed as useful primarily for the stimulation of human genital organs for anything of pecuniary value."

The law does not ban the possession of sex toys, and it doesn't regulate other items, including condoms or virility drugs. Residents may legally purchase sex toys out of state for use in Alabama, or they may buy sexual devices in Alabama that have a "bona fide medical" purpose.

Williams had asked the Supreme Court to review a decision by the 11th U.S. Circuit Court of Appeals that found Alabama's law was not affected by a U.S. Supreme Court decision knocking down Texas' sodomy law.

The appeals court judges said the Texas sodomy law involved private conduct, while the Alabama law regulated commercial activity. Public morality was an insufficient government interest in the Texas case but was sufficient in the Alabama case, the 11th Circuit judges said.

Williams called the Supreme Court's decision not to review the law "further evidence of religion in politics."

"The U.S. Supreme Court said states can legislate morality. I don't feel it is fair to the people who do not agree with the morality of the Legislature," she said.

She also predicted future court battles over which sexual devices are legal to sell as medical devices.

Georgia, Mississippi, and Texas have similar laws that have been upheld in court, while Louisiana, Kansas and Colorado have laws that have been struck down, said Mark Lopez, a former American Civil Liberties Union attorney in New York who worked on the Alabama case until recently.

He said adult stores may be cautious about pushing the issue of what constitutes a medical device because the law has strong penalties.

In Alabama, a conviction carries a penalty of up to a year in jail and a $10,000 fine for a first offense. A second offense carries a prison sentence of one to 10 years.