The federal appeals court has upheld a Sandy Springs ordinance that bans the sale of sex toys, while also indicating their decision was wrong and could be overturned.
The decision, issued by a unanimous three-judge panel on the 11th U.S. Circuit Court of Appeals in Atlanta, said the court had to follow a precedent it set in 2004 when it upheld a similar sex-toy ban in Alabama. But the judges said they now believe the Alabama case was wrongly decided, and they encouraged the Sandy Springs plaintiffs to ask the entire 11th Circuit court to reconsider the issue and set a new precedent.
In addition, the Supreme Court’s landmark decision legalizing gay marriage and other rulings have had the effect of pushing the courts further out of the bedroom. That changing legal landscape also affects how courts consider challenges to sex-toy bans, Judge Charles Wilson wrote for the three-judge panel.
Wilson also cited the Supreme Court’s 2013 ruling on the Defense of Marriage Act, in which the justices struck down a provision that denied federal benefits to same-sex couples. In that decision, he noted, the justices said the right to private consensual sexual intimacy should not be infringed by laws that seek to control moral or sexual choices.
Wendell Willard, the city attorney for Sandy Springs, said he’d never heard of the 11th Circuit issuing such an opinion. “We’ll just have to see how this plays out,” he said.
Atlanta lawyer Gerry Weber, who represents two individuals who joined the litigation, predicted that “the case will have important implications for intimate privacy of consenting adults.”
If the 11th Circuit ultimately overturns the sex-toy ban, that decision will imperil similar prohibitions and restrictions passed by other cities and counties across the metro area.
The Sandy Springs’ ban dates back a decade. It deems as obscene any devices that are marketed “for the stimulation of human genital organs,” and it says the distribution of such items can be prosecuted as a crime. The law grants exceptions to those who use the devices for a “bona fide medical, scientific, educational, legislative, judicial or law enforcement purpose.”
The Sandy Springs lawsuit was brought by the adult bookstore Inserection, which seeks to sell the banned sex toys. It is also being challenged by two individuals. Melissa Davenport, who suffers from multiple sclerosis, says she uses sexual devices with her husband to facilitate intimacy and wants to sell them to others with the same or a similar condition. Marshall Henry is an artist who uses sex toys in his artwork.
The plaintiffs contend they have a fundamental right to engage in acts of private, consensual sexual intimacy and assert the Sandy Springs ban places a burden on that right. In Tuesday’s decision, the 11th Circuit noted its 2004 ruling in the Alabama case found there was no such fundamental right. But the Supreme Court’s rulings on same-sex marriage “cast serious doubt” on its 2004 decision, the court said.
The judges said they still must follow that precdent “even though convinced it is wrong.” The entire 11th Circuit court, which is allotted 11 judges, can overturn that precedent, the decision noted.
Atlanta lawyer Cary Wiggins, who represents Inserection, said he will ask the full court to do just that. As for the Sandy Springs’ sex-toy ban, he said, it’s “absurd and deeply intrusive.”
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