New York Times Editorial: The Courts and Privacy

New York Times Editorial: The Courts and Privacy
Copyright by The New York Times
Published: October 2, 2009
http://www.nytimes.com/2009/10/02/opinion/02fri2.html?th&emc=th


To the delight of headline writers, the Alabama Supreme Court recently decided the case of 1568 Montgomery Highway Inc. — also known as Love Stuff — v. the City of Hoover. In a 7-to-2 ruling, it upheld a state law banning the sale of sex toys. The dispute may seem a bit frivolous, but it rests on a fundamental question: After the Supreme Court’s 2003 ruling striking down sodomy laws, how free is the majority to impose its morality through the law?

The Alabama court took sides in a clash between two federal appeals courts in the Deep South. In 2007, the United States Court of Appeals for the 11th Circuit, in Atlanta, also upheld the Alabama law. In 2008, the United States Court of Appeals for the Fifth Circuit, in New Orleans, struck down Texas’s ban on sexual devices.

Love Stuff, whose target clientele is women ages 32 to 52, was sued by Hoover for violating the state’s Anti-Obscenity Enforcement Act. The store challenged the law’s constitutionality. The trial court upheld the law and Love Stuff appealed, invoking a line of United States Supreme Court cases recognizing a privacy right in sexual activity. These included Griswold v. Connecticut in 1965, which affirmed the right to buy contraception, and Lawrence v. Texas in 2003, which struck down Texas’s sodomy law by relying on a liberty right under the 14th Amendment.

The Alabama Supreme Court sided with the 11th Circuit court. “Public morality,” the majority said, “can still serve as a legitimate rational basis for regulating commercial activity.”

What these courts are fighting about is just how far the Supreme Court went on privacy law in deciding the Texas case. In 1986, the court upheld Georgia’s criminal sodomy statute and the arrest of a man for having consensual sex in his own home, reasoning that that law is based on notions of morality. Seven years later, in Lawrence v. Texas, the court ruled that a governing majority’s view that a particular practice is immoral is not reason enough to outlaw it.

The Alabama Supreme Court and the 11th Circuit court want to interpret the Lawrence ruling narrowly — focusing on the fact that the sodomy law that was struck down singled out a particular group, gay people, and applied to noncommercial sexual activity.

Alabama’s law against sexual devices is clearly based on the prejudices of the state’s governing majority, which may or may not represent an actual majority of Alabamians. And the question goes beyond sex toys. The 11th Circuit court discussed the state’s interest in public morality in 2004 when it upheld Florida’s law prohibiting gay couples from adopting. The issue could be headed to the United States Supreme Court, which often happens when two federal courts of appeals have reached opposite results. It would give the court a chance to expound on important issues of privacy, morality and minority rights.