[lbo-talk] Sexuality Under Seige or So What Else is New?

B. docile_body at yahoo.com
Thu Jul 29 14:27:47 PDT 2004


The actual Alabama court decision re: vibrators is here: http://www.ca11.uscourts.gov/opinions/ops/200216135.pdf

According to this, you can possess, bring into the state, and distribute dildos--you just can't sell or purchase them. It's a fascinating read.

One paragraph in the above-cited document leaps off the page:

"After a lengthy discussion of the history of sex in America, the district court [that is, the court that the 11th circuit overturned] announced a fundamental right to 'sexual privacy,' which, although unrecognized under any existing Supreme Court precedent, the district court found to be deeply rooted in the history and traditions of our nation. Id. at 1296. The district court further found that this right 'encompass[es] the right to use sexual devices like the vibrators, dildos, anal beads, and artificial vaginas' marketed by the vendors involved in this case."

And then this:

"In searching for, and ultimately finding, [a] right to sexual privacy, the district court did little to define its scope and bounds. As formulated by the district court, the right potentially encompasses a great universe of sexual activities, including many that historically have been, and continue to be, prohibited. At oral arguments, the ACLU contended that 'no responsible counsel' would challenge prohibitions such as those against pederasty and adult incest under a 'right to sexual privacy' theory. However, mere faith in the responsibility of the bar scarcely provides a legally cognizable, or constitutionally significant, limiting principle in applying the right in future cases.

[...]

The mere fact that a product is used within the privacy of the bedroom, or that it enhances intimate conduct, does not in itself bring the use of that article within the right to privacy. If it were otherwise, individuals whose sexual gratification requires other types of material or instrumentalities—perhaps hallucinogenic substances, depictions of child pornography or bestiality, or the services of a willing prostitute—likewise would have a colorable argument that prohibitions on such activities and materials interfere with their privacy in the bedchamber. [...] At a minimum, therefore, the putative right at issue is the right to sell and purchase sexual devices."

B



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