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August 04, 2016

Georgia City Still In '50s Regarding Sex Toys

SANDY SPRINGS, GA—Looks as though things haven’t changed much since adult retailer Sherri Williams sued the state of Alabama several years ago to allow her stores to sell adult novelties, aka “sex toys,” since that’s the case the Eleventh Circuit Court of Appeals cited in its ruling, filed Tuesday, upholding a lower court’s dismissal of a lawsuit filed by two adult stores against Sandy Springs’ 2009 anti-toy ordinance. The suit was brought by two local adult stores, Flanigan’s and Inserection, as well as intervenor individuals Melissa Davenport, who suffers from multiple sclerosis and needs to use the sex toys “to facilitate intimacy,” and Marshall Henry, an artist who uses sex toys in his work, seeking to overturn the ordinance passed by the Sandy Springs City Council which, according to the Eleventh Circuit opinion, “criminalizes the commercial distribution of obscene material and defines ‘[a]ny device designed or marketed as useful primarily for the stimulation of human genital organs’ as obscene.” Among the plaintiffs’ claims were that the law violates their Fourteenth Amendment due process rights by illegally depriving them of “life, liberty or property.” Henry had the additional complaint that the law violated his First Amendment right of free expression, but that claim was dismissed early on. “The Appellants contend that they have a fundamental right to engage in acts of private, consensual sexual intimacy, and that the Ordinance burdens this right,” noted Judge Charles R. Wilson, writing for a unanimous three-judge panel. In the end, the appeals court based its ruling almost entirely on the Williams case known her as “Williams IV,” where Judge Wilson, recalling that history, stated, “We concluded that the Supreme Court’s then-recent decision in Lawrence v. Texas identified no such fundamental right and, utilizing the Washington v. Glucksberg analysis for defining and assessing newly asserted fundamental rights, we concluded that our history and tradition did not support assigning constitutional protection to a right to sell, buy, and use sexual devices,” adding, “The Appellants in this case challenge a law similar to the one at issue in Williams IV and present us with, effectively, the same arguments against its enforcement.” The plaintiffs’ claims here sought to have the appeals court overturn Williams IV based on more recent U.S. Supreme Court rulings in U.S. v. Windsor (which struck down the Defense of Marriage Act) and Obergefell v. Hodges (which legalized same-sex marriage). The panel’s reply? “Although we are persuaded that Windsor and Obergefell cast serious doubt on Williams IV, we are unable to say that they undermine our prior decision to the point of abrogation… Therefore, unless and until our holding in Williams IV is overruled en banc, or by the Supreme Court, we are bound to follow it. Although we are sympathetic to the Appellants’ Fourteenth Amendment Due Process claim, we are constrained by our prior precedent in Williams IV, and we are obligated to follow it ‘even though convinced it is wrong.’ The Appellants are free to petition the court to reconsider our decision en banc, and we encourage them to do so.” [Emphasis added; citations removed] The Atlanta Journal-Constitution wrote a short article on the decision, which can be found here, but what’s most interesting are some of the reader comments it generated. “Someone needs to go to city hall and leave a case of astroglide on the steps and a note attached saying ‘please use this since you're insistent on forcefully inserting yourselves into our sex lives’,” wrote Steven. “You can't buy a dildo but you can buy a gun at a dozen different stores,” wrote Brian. “Ah, you can go to a movie theater and watch scenes of unimaginable blood and gore *and* bring the kids along to make it family fun night, but a dildo is ‘obscene’,” noted James. And our fave: “Sandy Springs must be a perfect place—all kids are well fed and over-educated, no homeless people needing help, etc.—for them to take any time passing any laws like this,” wrote Randall. No word yet whether the appellants will petition the Eleventh Circuit for an en banc hearing, or for the U.S. Supreme Court to take up the case.

 
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