In one, the Eleventh Circuit upheld Alabama's law criminalizing the sale of sex toys. Yes, criminalizing, and yes, sex toys. Please note the baroque history of the case; the law has been vigorously defended by the Attorney General over the course of eight years, and this marks the fifth judicial opinion in the case. Your tax dollars at work, folks. The court held that "public morality" was a valid ground for criminalizing such activity, notwithstanding the apparent rationale of Lawrence v. Texas.
The Eleventh Circuit's rationale? It held that:
while the statute at issue in Lawrence criminalized private sexualThis is a silly interpretation, but at least it means that, even with this law upheld, laws banning private use would fall, as apparently would laws against fornication, cohabitation, perhaps even adultery. But here's the rub:
conduct, the statute at issue in this case forbids public, commercial activity. To the
extent Lawrence rejects public morality as a legitimate government interest, it
invalidates only those laws that target conduct that is both private and noncommercial.
Furthermore, we do not read Lawrence, the overruling of Bowers, or theThe court believed that the legitimacy of "public morality" as a legislative purpose was simply too old and hallowed to have been undone in Lawrence without the Supreme Court practically beating us over the head with it. This is the same logic they used in upholding a ban on adoptions by queer Floridians. Once again, one must ask: did Lawrence mean anything?
Lawrence court’s reliance on Justice Stevens’s dissent, to have rendered public
morality altogether illegitimate as a rational basis.
But on to Georgia -- where the state's highest court refused upheld the ten-year prison sentence of Genarlow Wilson for "aggravated child molestation," which apparently is a Southern legal term for what half of us did every other weekend in high school, namely being 17 and having consensual oral sex with a 15 year old peer at a party. (There is some suggestion the incident here was less than entirely wholesome; it's not clear from the press reports or court opinion. But Wilson was acquitted of rape, and the law at issue applies to the most clearly consensual acts.) Georgia's assembly recently changed this from a felony to a misdemeanor, but the high court held the change was not retroactive.
In both of these cases, there appears to be a broad public recognition that the result is unfair. In Alabama, a local newspaper's poll found 91% percent opposition to the toy ban, while another paper fired off a castigating editorial. In Georgia, legislators are proposing a statutory fix that would at least let pre-amendment cases like Wilson's get meaningful judicial review.
I am heartened to see public debate about cases like these, as I expect laws like these cannot withstand sustained public scrutiny. There may be a voting bloc to whom anything anti-sex looks good, but it is a narrow one indeed.