The Pursuit of Happiness (and Sexual Freedom): Lawrence v. Texas, Morality Legislation & the Sandy Springs Obscenity Statute

• Jurisdiction: United States,Federal
• Publication year: 2015
• Citation: Vol. 66 No. 4

The Pursuit of Happiness (and Sexual Freedom): Lawrence v. Texas, Morality Legislation & the Sandy Springs Obscenity Statute

Tomiya Lewis

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Comment

The Pursuit of Happiness (and Sexual Freedom): Lawrence v. Texas, Morality Legislation & the Sandy Springs Obscenity Statute

I. INTRODUCTION

In their private lives, individuals engage in a variety of activities. Historically, particular activities have been labeled as immoral, including interracial marriages, the ability to have an abortion, and same-sex relationships.¹ Also included in this list is the sale of "sexual

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devices," which have routinely been defined as material used primarily for the stimulation of human genital organs.² Such definitions have been utilized in both state statutes and city-wide ordinances throughout the country, where laws have been enacted to prohibit the sale, lease, trade, and, in some cases, possession of sexual devices.³

Unsurprisingly, a number of individuals and vendors who engage in activities distributing and using sexual devices in certain states and municipalities have challenged such prohibitions, claiming that the prohibitions violate their constitutional rights.⁴ As challenges against such laws differ on a case-by-case basis, state and federal court decisions vary widely in determining whether to uphold the laws in question, and, currently, there is a split between the United States Court of Appeals for the Fifth and Eleventh Circuits on the constitutionality of such prohibitions.⁵ The leading cause of this split, as well as the ensuing confusion, is the United States Supreme Court's 2003 decision in Lawrence v. Texas,⁶ where the Court struck down a Texas statute that prohibited certain homosexual acts.⁷ The Lawrence decision has been applied to both state-wide and city-wide obscenity laws throughout the

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country.⁸ As a result, both state and federal courts' attempts to apply Lawrence have been strenuous and vary widely.

While some courts and commentators argue that Lawrence created a fundamental right to privacy should be applicable to obscenity statutes, others argue that the decision in Lawrence should not be applied to such matters because the decision did not create a fundamental right to privacy, let alone a fundamental right to sexual privacy. For example, some courts, like the Fifth Circuit in Reliable Consultants, Inc. v. Earle,⁹ have interpreted the decision in Lawrence to have created a right to privacy, including private sexual activity.¹⁰ On the other hand, other courts, like the Eleventh Circuit in Williams v. AG of Alabama (Williams I),¹¹ contend that the scope of Lawrence is limited and that the Court was very careful and methodical in the language it used in its opinion, purportedly supporting the notion that the High Court did not intend to create a new fundamental right.¹² These differing decisions have caused confusion regarding whether obscenity statutes should be deemed valid or invalid.

When the state of Alabama enacted a law that prohibited the sale, transfer, and lease of sexual devices, the Eleventh Circuit upheld the statute as constitutional.¹³ Despite this ruling, a case has been filed in the United States District Court for the Northern District of Georgia challenging the constitutionality of a Sandy Springs, Georgia obscenity statute (Ordinance), brought by several companies and joined by two Georgia citizens (Plaintiffs).¹⁴ After reviewing the matter on the merits, the district court granted the defendant's motion for summary judgment, bound by the Eleventh Circuit's prior decision.¹⁵ The Plaintiffs have appealed the district court's decision, and the matter is currently pending before the Eleventh Circuit, and it will be interesting to see whether the court will affirm its previous findings or take

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advantage of the opportunity to overrule its previous decision and follow suit with the Fifth Circuit.¹⁶

Part IA of this comment will begin with a recitation of the historical use of sexual devices and their treatment by governments. Part IB will first lay out the Ordinance and the consequences that potential violators of the law face. A related ordinance supporting the enactment of legislation controlling the zoning and operation of adult establishments provides some insight into the city's purpose in enacting its obscenity statute. The findings provision appears to contemplate challenges as it cites cases relating to the city's "substantial government interest in preventing the negative secondary effects of establishments" that sell such material.¹⁷ Part IB will go on to discuss the suit that was filed, as well as the district court's subsequent decision to uphold the current law.

Part IIA will briefly provide background of the rights that have commonly been raised in obscenity statute cases throughout the country. Part IIB will discuss the Supreme Court case of Lawrence v. Texas which has resulted in the split between the Fifth and Eleventh Circuits and the Court's reasoning behind its holding.

Lawrence has created an interpretation conundrum, which has led to the split between the Fifth and Eleventh Circuits (not to mention many different interpretations within and among the states). Part IIIA will discuss the Fifth Circuit's interpretation of this daunting case, while Part IIIB will discuss the Eleventh Circuit's interpretation. Part IIIC will go through interpretations and suggestions posed by scholars in the field, evidencing that it is not only the courts that have found this a difficult issue to deal with.

Part IV will analyze the Ordinance under the framework commonly believed to have come out of Lawrence and contrast that with the framework the district court based its holding on. Part IVB will discuss whether morals should be considered during the legislative process and whether they have a place in the legislature. The section will close out with a brief discussion of the harsh punishments often found in morals-based laws. A brief conclusion will follow.

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II. THE HISTORICAL TREATMENT OF SEXUAL DEVICES & THE SANDY SPRINGS ORDINANCE

A. The Origins of Sexual Devices

The origins of the use of sexual devices in the United States began with medical treatment, where vibrators were often used by physicians to treat hysteria in their patients (who, historically, were women).¹⁸ Eventually, the exclusive use of vibrators at the doctor's office grew to include use in the homes of the patients.¹⁹ By being able to purchase vibrators on their own, patients were able to self-treat at a lower cost as well as maintain their privacy.²⁰ In the early twentieth century, vibrators began to be advertised in magazines and were often advertised as "massagers."²¹

Vibrators in the United States are still utilized for medical purposes, so much so that the Food and Drug Administration (FDA) recognizes and categorizes certain vibrators as a Class III device.²² Class III devices are "those that support or sustain human life, are of substantial importance in preventing impairment of human health, or which present a potential, unreasonable risk of illness or injury."²³ This classification of vibrators evidences an acknowledgment of the commonality and

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necessity of sexual devices in certain circumstances.²⁴ Despite this classification, many jurisdictions have opted to ban the use and sale of such devices, usually based upon moral feelings. But, on the other hand, the FDA's medical classification has also been used to serve as a justification of the morals-based laws banning the sale of them. For example, many obscenity statutes include a provision allowing an exemption for the sale of sexual devices if they serve a medical need.²⁵

Although vibrators historically have a medical background, the accessibility and popularity of sexual devices has grown exponentially since their arrival in the commercial market. It is reported that approximately 52.5% of women have used a vibrator in their past.²⁶ Furthermore, the market, although predominately directed towards women, has grown to include men as well. The acceptability of the use of sexual devices continues to grow as both men and women turn to such devices to enhance their intimate lives.

B. Sandy Springs, Georgia and Its Prohibition

1. The Statute. Sandy Springs Municipal Code Section 38-120²⁷ (the Ordinance) prohibits the sale, rental, or lease of specifically defined obscene material. The Ordinance states:

(a) A person commits the offense of distributing obscene material when the following occurs:

(1) He sells, rents, or leases to any person any obscene material of any description, knowing the obscene nature thereof, or offers to do so, or possesses such material with the intent to do so . . .

. . .
(b) Material is obscene if:

(1) To the average person applying contemporary community standards, taken as a whole, it predominantly appeals to the prurient interest, that is, a shameful or morbid interest in nudity, sex, or excretion.
(2) The material, taken as a whole, lacks serious literary, artistic, political, or scientific value . . .

. . .

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(c) Any device designed or marketed as useful primarily for the stimulation of human genital organs is obscene material under this section . . . .²⁸

The ordinance does include exclusions and an affirmative defense, excluding from its definition of obscene devices those that are primarily intended to prevent pregnancy or the spread of sexually transmitted diseases.²⁹ Accordingly, certain vendors are still able to stock and sell different types of contraceptives, and consumers are still able to purchase them. Additionally, under certain circumstances, if prescribed by a medical physician, an individual may obtain a specific sexual device from the physician.³⁰ Although the transfer of devices that are defined by the ordinance as obscene is prohibited, if the device was prescribed by a medical physician "for a bona fide medical, scientific...