High court lets Alabama sex-toy ban stand

MONTGOMERY, Ala. — The U.S. Supreme Court declined today to hear a challenge to Alabama's ban on the sale of sex toys, ending a nine-year legal battle and sending a warning to store owners to clean off their shelves.

An adult-store owner had asked the justices to throw out the law as an unconstitutional intrusion into the privacy of the bedroom. But the Supreme Court declined to hear the appeal, leaving intact a lower court ruling that upheld the law.

Sherri Williams, owner of Pleasures stores in Huntsville and Decatur, said she was disappointed, but plans to sue again on First Amendment free speech grounds.

"My motto has been they are going to have to pry this vibrator from my cold, dead hand. I refuse to give up," she said.

Alabama's anti-obscenity law, enacted in 1998, bans the distribution of "any device designed or marketed as useful primarily for the stimulation of human genital organs for anything of pecuniary value."

The law does not ban the possession of sex toys, and it doesn't regulate other items, including condoms or virility drugs. Residents may legally purchase sex toys out of state for use in Alabama, or they may buy sexual devices in Alabama that have a "bona fide medical" purpose.

Similar laws have been upheld in Georgia, Mississippi, and Texas, but struck down in Louisiana, Kansas and Colorado, said Mark Lopez, a former American Civil Liberties Union attorney in New York who worked on the Alabama case until recently.

The Alabama attorney general's office immediately notified county district attorneys, who are responsible for enforcement. The attorney general planned to ask a federal judge to lift an injunction preventing the law from being enforced.

Removing the injunction should take a couple of days, said Chris Bence, spokesman for Attorney General Troy King.

Store owners should be aware that the law takes effect once the injunction is lifted, Bence said.

Williams had asked the Supreme Court to review a decision by the 11th U.S. Circuit Court of Appeals that found Alabama's law was not affected by a U.S. Supreme Court decision knocking down Texas' sodomy law.

The Texas sodomy law involved private conduct, while the Alabama law regulated commercial activity, the appeals court judges said. Public morality was an insufficient government interest in the Texas case but was sufficient in the Alabama case, they said.

Williams called the Supreme Court's decision not to review the law "further evidence of religion in politics."

"The U.S. Supreme Court said states can legislate morality," she said. "I don't feel it is fair to the people who do not agree with the morality of the Legislature."

She also predicted future court battles over which sexual devices are legal to sell as medical devices.

Lopez said adult stores may be cautious about pushing the issue of what constitutes a medical device because the law has strong penalties: Up to a year in jail and a $10,000 fine for a first offense. A second offense carries a prison sentence of one to 10 years.