A sexual Bill of Rights.

A sexual Bill of Rights.

A sexual Bill of Rights.

The law, lawyers, and the court.
Aug. 4 2004 5:08 PM

A Sexual Bill of Rights

Bickering over vibrators on the 11th Circuit.

Illustration by Robert Neubecker

Last week, the United States Court of Appeals for the 11th Circuit upheld an Alabama ban on the sale of sex toys. Alabamians can still use, improvise, borrow (not recommended by Slate or its legal counsel), or import from out-of-state the latex items of their choosing. But as far as the court of appeals is concerned, the sale and advertising of "any device designed or marketed as useful primarily for the stimulation of human genital organs" can now get you up to a year of jail time and up to $10,000 in fines. Condoms and Viagra are exempted from the ban, as are whipped cream, anything sold at the Sharper Image, and Barry White CDs.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

The court of appeals decided by a 2-1 vote to uphold the 1998 law, struck down twice by a lower court. Enforcement will begin shortly. The big fight comes down, very simply, to this: Does the Constitution protect, as a "fundamental right," private, consensual sexual activity that harms no one? The answer to this turns largely on how you choose to read Justice Anthony Kennedy's majestic-yet-inscrutable majority opinion in Lawrence v. Texas—the gay sodomy case decided two terms ago by the Supreme Court. Because clearly, Lawrence did one of two things: It either carved out a place in America's bedrooms that is free from police scrutiny, or it simply added one more choice (in this case, sodomy) to a limited menu of constitutionally protected intimate activities. The sad truth is that Lawrence tried to do both. As a result of this muddiness, judges on either side of the culture wars are reduced to playing interpretive games. All of which proves that everyone's a judicial activist when it comes to interpreting vague cases.

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Sound legal arguments can be made in either direction after Lawrence. One version holds thatthe casechanged everything; that even where it failed to explicitly announce a new fundamental right to sexual privacy, it nevertheless made it close to impossible for states to enact irrational sex laws based on vague claims about public morality. The alternative, and equally plausible, reading is that Lawrence expressly avoided getting to the question of whether there was a fundamental right to sexual privacy and that—mountains of lofty dicta notwithstanding—nothing has actually changed, except for a prohibition on sodomy prosecutions. The problem, of course, is that Justice Kennedy so mixed up the legal tests and fudged the standard of review in Lawrence that both positions are accurate.

The court has adopted a laundry list approach to non-enumerated "fundamental rights," which are chiefly determined based on the historical accident of which sorts of cases it elects to hear. Leaning heavily on amorphous inquiries about history and whether certain behaviors are "implicit in the concept of ordered liberty," the court picks and chooses which rights are constitutionally protected and which are not. Fundamental rights under the Constitution thus include things like the rights to marry, use birth control, make decisions about childrearing, and have an abortion. For a really clear discussion of how the courts decide whether a right will be deemed fundamental, click here. The quick-and-dirty answer? It just depends on how narrowly the reviewing court frames the right in question.

When the Supreme Court decided Bowers v. Hardwick—the first gay sodomy case, in 1986—the majority opinion asked whether there was some constitutionally protected (and historically exalted) right to gay sodomy. It did so by inquiring, in gorgeously loaded language, "whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time." Not surprisingly, the answer to that question was, "Um. No." The answer would have similarly been "No" if the same question had been asked about the right to use The Pill.

In his majority opinion in Lawrence, Justice Kennedy discredited this framing trick: "To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse. … The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals." To correct for that in Lawrence, Kennedy chose to frame differently the right to do what you want in your bedroom. Same conduct, mind you. Just a different lens: "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.' "

What Kennedy forged that day sounded like a fundamental right. But he never labeled it that way. Which left lower courts with little in the way of a concrete constitutional test to be employed in future sexual privacy cases. What we do know, from Lawrence, is that the majority of the court was willing to overrule Bowers and that part of their problem with Bowers was in the narrowness of the question posed. Which is why the majority opinion in Williams, relying on the fatuous framing trick of Bowers, smells funny. For here we have the majorityasking whether there is some exalted fundamental right to use "vibrators, dildos, anal beads, and artificial vaginas." Whatever you think the holding in Lawrence actually was, can we at least agree that manipulating language to make the right in question sound trivial is definitely not a permissible way to achieve a desired outcome? Judge Rosemary Barkett made this point in her dissent: "This case is not, as the majority's demeaning and dismissive analysis suggests, about sex or about sexual devices. It 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."

Between the cheap-shot framing, the too-easy slippery slope argument (citing the inexorable path from sex toys to "adult incest, prostitution, obscenity, and the like"), and the ever popular contention that judges must never second-guess legislatures on anything, the majority opinion in Williams sounds virtually every note in the increasingly ugly wars over activist judges and invalid constitutional interpretation. Buried amid the dismissive rhetoric, there is a creditable discussion of the constitutional limits of Lawrencehere. But as judges are increasingly tempted to thrash out the culture wars in the pages of their opinions, the label "activist judge" starts to fit either side rather well.