Buying Sex Toys Not Protected by Due Process … For Now

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By Bernie Pazanowski

Aug. 3 — A local ordinance that prohibits the sale of sexual devices doesn't violate the due process rights of individuals who want to purchase them or the stores that want to sell them, the U.S. Court of Appeals for the Eleventh Circuit held Aug. 2 ( Flanigan's Enters. Inc. of Ga. v. City of Sandy Springs, 2016 BL 249152, 11th Cir., No. 14-15499, 8/2/16 ).

Despite a spate of U.S. Supreme Court opinions that suggest otherwise, the court was constrained by circuit precedent, the opinion by Judge Charles R. Wilson said. The court encouraged the plaintiffs to seek en banc review.

Sandy Springs, Ga., adopted an ordinance that prohibits the sale of “sexual devices.”

Owners of stores that sell sexual devices sued Sandy Springs, claiming that the ordinance violated their due process rights. Individuals who use sexual devices, including a woman with multiple sclerosis who uses a device to facilitate intimacy with her husband, intervened.

The district court, following Williams v. Attorney General (Williams IV), 378 F.3d 1232 (11th Cir. 2004), ruled for the city.

Recent Supreme Court Precedent

On appeal, the plaintiffs argued that Williams (IV) should be overruled.

United States v. Windsor, 81 U.S.L.W. 4633, 2013 BL 169620 (U.S. 2013), and Obergefell v. Hodges, 83 U.S.L.W. 4592, 2015 BL 204916 (U.S. 2015), clarified that the holding in Lawrence v. Texas, 539 U.S. 558 (2003), created a fundamental right to sexual privacy, and altered how newly asserted fundamental rights are addressed under Washington v. Glucksberg, 521 U.S. 702 (1997), they said.

The panel said that although Windsor and Obergefell “cast serious doubt on Williams (IV),” they didn't “undermine our prior decision to the point of abrogation.”

It said, however, that the plaintiffs “are free to petition the court to reconsider our decision en banc, and we encourage them to do so.”

Judges Frank M. Hull and R. Lanier Anderson joined the opinion.

Wiggins Law Group represented the stores. Law Offices of Gerry Weber LLC represented the individual plaintiffs. Law Office of Scott D. Bergthold PLLC represented the city.

To contact the reporter on this story: Bernie Pazanowski in Washington at bpazanowski@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

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