Love Stuff in Alabama: Supreme Court Rules Morality Can Be Constitutional Basis for Product Bans

150px-Flag_of_Alabama.svgAlabama Supreme Court has joined the debate over morality being the sole basis for legislative restrictions on citizens. The court upheld the state ban on the sale of sex toys purely on the basis that such toys are viewed as immoral. Since Lawrence v. Texas, such morality based laws have been questioned on constitutional grounds. For a prior column, click here.

At issue is Section 13A-12-200.5(4) which prohibits such sales “within 1,000 feet of a church, place of worship, church bookstore, public park, public housing project, daycare center, public or private school, college, recreation center, skating rink, video arcade, public swimming pool, private residence, or any other place frequented by minors.” It would be simpler to just ban it outright rather than pretend a tailored zone restriction when the law includes any residence, church bookstore or place with kids.

The case of 1568 Montgomery Highway, Inc. v. City of Hoover involves a business called Love Stuff in Hoover, Alabama where sex toys are sold to adults.

bolin_thThe Alabama Supreme Court ruled 7-2 that the majority can ban such sales as offensive to the majority of the citizenry. Associate Justice Michael F. Bolin wrote “[p]ublic morality can still serve as a legitimate rational basis for regulating commercial activity, which is not a private activity”. It relied on the earlier decisions of the Eleventh Circuit and Fifth Circuit that such laws can be defended as rationally based on morality grounds. The court distinguished the Lawrence case.

The court ruled:

in rejecting Love Stuff’s federal constitutional challenge to [the law], we agree with the interpretation given Lawrence v. Texas by the United States Court of Appeals for the Eleventh Circuit. Post-Lawrence public morality can still serve as a legitimate rational basis for regulating commercial activity, which is not a private activity. As the 11th Circuit pithily and somewhat coarsely stated: `There is nothing `private’ or `consensual’ about the advertising and sale of a dildo’.

The case could make for a fascinating appeal and finally put the question of morality legislation squarely before the Supreme Court. However, Justice Sotomayor would be an uncertainty on the question (as opposed to David Souter who would likely have voted to strike down the law).

Here is the opinion: Alabama decision

87 thoughts on “Love Stuff in Alabama: Supreme Court Rules Morality Can Be Constitutional Basis for Product Bans”

  1. You bring up a good point Mespo about St. Thomas Aquinas. He was teaching, through the Summa, that if a servant of the Lord were to view the beautiful outlet of human sexuality as a means for “only” pleasure, its’ beauty and gift could become perverted and abused. Within the confines of the sacrament of marriage it is a pleasurable act as instituted by the Creator. The most important element that sexuality offers is that it allows the possibility for further procreation, thereby creating more souls that can be led to the “Kingdom of Christ”.

  2. Mike S., can you cite a a particular article of “faith or dogama” taught by the Catholic Church that articulates that “sex was never supposed to be pleasurable within the sacrament of marriage, but merely to be used as an “adjunct for procreation”?

  3. “I wish that all were (celebates) as I myself am. But each has a particular gift from God, one having one kind and another a different kind. To the unmarried and the widows I say that it is well for them to remain unmarried as I am. But if they are not practicing self-control, they should marry. For it is better (i.e. a lesser evil) to marry than to be aflame with passion.”
    I Corinthians: 7:7-9 – Paul of Tarsus

    This was the beginning of the antisexual attitude of the RCC and was later bolstered via the Council of Nicea and various Bishops who adopted the Gnostic world view that “flesh was evil” and superimposed these beliefs on Jesus teachings in the Gospels. The Catholic teachings for Century’s was that sex in marriage was strictly for procreation and not pleasure. This incidentally was the antithesis of the teaching in the Torah that deemed sexual fulfillment in marriage a blessing. Jesus probably believed that too. The Gnostic influences, though at times denounced as heretical, held great sway in the early Church after Constantine’s interference and injection of paganism. That’s the history of it and the attitude of anti-sexuality that followed. The only chance for change occurred when John XXIII
    became Pope. A truly saintly man, whose ideas if followed after his death would have created a Church more true to Jesus’ teachings.

  4. Sex toys are immoral in the eyes of this retarded court…

    Sometimes it’s time to just face the fact that the situation is without hope.

  5. ” … “[p]ublic morality can still serve as a legitimate rational basis for regulating commercial activity, which is not a private activity”. It relied on the earlier decisions of the Eleventh Circuit and Fifth Circuit that such laws can be defended as rationally based on morality grounds.”

    ***************

    Were I a member of the prurient Republican crowd, I would shudder at the thought of legislating morality. What would happen to Craig, Vitter, Ensign, Mike Duvall, Sanford, Mark Foley, Jim Gibbons, John Gosek, Jeff Miller, etc. (and the list exceeds my typing perseverance)?

  6. “Like the other medieval theologians, Aquinas affirmed the common teaching of the Church that sexual intercourse solely for the sake of pleasure was sinful.

    –Catholic sexual ethics: a summary, explanation & defense
    By Ronald David Lawler, Joseph M. Boyle, William E. May at page 63.

    Later theologians interpreting Aquinas have loosened the foolish stance of the medieval Church, but it is sheer historical ignorance to say that “… the Church never said “sexual pleasure” is sinful.”

  7. Christianity and the Church never said “sexual pleasure” is sinful. Outside of the sacrament of marriage, having a sexual relationship is a sin. The fact that “pleasure is derived” from the act, has nothing to do with it being sinful or not. You continue to underwhelm me FFLEO..

  8. The following quoted excerpts are from an article by Geoffrey R. Stone, Edward H. Levi Distinguished Service Professor of Law at the University of Chicago
    _________________________________

    Sex and Sin

    “So, what is it about the use of a vibrator or a dildo that affronts the “public morality”? Why is a person who uses such a device “immoral”? The answer, I submit, turns entirely on religion. The pivotal shift from the world of the classical Greeks to our contemporary world, in this respect, was the advent of Christianity, with its emphasis on sexual pleasure as sinful.

    Of course, people have a right to believe whatever their religion commands. If they wish not to use a sex aid, or to be celibate, that’s their own business. But can this set of beliefs serve as a constitutionally permissible definition of the “public morality” in a nation dedicated to the separation of church and state?”

    Read more at: http://www.huffingtonpost.com/geoffrey-r-stone/sex-and-sin_b_308732.html

    _________________________________

  9. Just curious… does anyone know the law regarding the possession of sex toys in Alabama?

    Prior to the ban in Texas being lifted, anyone possessing more than 6 dildos could be prosecuted for promoting obscenity. I don’t know if anyone was ever prosecuted under that law, but it was on the books.

    btw, Roland: in the case of Larry Craig and Mark Foley, I think “crusaders of orality” works rather well.

  10. Please excuse my typing/spelling should read “unlatches” the door; and crusaders of “morality” sry

  11. It always seems the people who scream the loudest about morality are the ones who’s skeletons tumble out of the closet if one just umlatches the door. Mark Foley, David Vitter, Larry Craig, Newt Gingrich all were “crusaders of orality” and all turned out to be immoral hypocites. I wouldn’t trust Justice Bolin to be alone with any of the Boyscouts at the next Jamboree. Something sticks about people like him.

  12. Too me the great irony in this type of legislative/judicial attempt to regulate sexuality, is that usually the very proponents of sexual prudishness, are those who in their private lives are the most sexually dysfunctional. It’s almost like they’re thinking “stop me before I pleasure myself again.

  13. Good one, pardon me.

    I would say that “a cumcumber can get one in a pickle” with the gubbmit’ only if you ‘relish’ it…

  14. Next up, after a total ban on phallic produce, no more horse rides (both real and mechanical), fingers and banisters.

    Alabama.

    If Louisiana considers you morons, you know that the state has . . . something . . . going on.

  15. “At issue is Section 13A-12-200.5(4) which prohibits such sales “within 1,000 feet of a church, place of worship, church bookstore, public park, public housing project, daycare center, public or private school, college, recreation center, skating rink, video arcade, public swimming pool, private residence, or any other place frequented by minors.

    What about the grocery store ?

  16. I guess love me tender love me true means I can’t still can’r screw you. The Legislature in action. Remember the words of the long lost words of Old Ben:

    They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.

    * Benjamin Franklin

  17. Assuming for a moment that indeed these kinds of morality-based bans are Constitutional (and that’s a big assumption), how exactly would the public majority’s opinion be established on such matters as sex toys? I assume through those elected in our “representative” government to the state legislature in Alabama. What of voter apathy? Should not the non-voting, dildo-loving be heard? What about a random digit dial public opinion poll of 1,000 Alabama residents?

    And what *is* a majority opinion in a country with such staggering voter apathy? I know, I know — and I agree — if you want your voice heard, vote! That’s nice in principal and on paper, but is it realistic in a country where the poor, those who barely subsist in our society, who are often in personal crisis, frequently homeless, simply AREN’T voting? Those who are, are often older, whiter, and more middle-class (even this is arguable at this point) or well-to-do. At this point, who exactly do our Representatives represent?

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