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News Analysis: Does Williams Case Call For The Return Of Sexual Hysteria?

News Analysis: Does Williams Case Call For The Return Of Sexual Hysteria?

Nowhere has the clash between secular law and religious doctrine shown itself more clearly than in the case now known as Sherri Williams, et al v. Troy King, Attorney General of Alabama.

The case revolves around Williams, an adult retailer who wants to be able to sell her customers (some of whom are co-plaintiffs) "sexual devices" such as dildos and vibrators. The state of Alabama has passed what's commonly known as an "obscene device act," amending the state's existing obscenity law to make the sale of such devices illegal.

"By prohibiting the sale and distribution of sexual devices," Williams' original complaint read, "Alabama has unduly burdened the rights of plaintiffs to be free from unwarranted governmental intrusions into their private practices — practices which have not been made unlawful in Alabama. Neither masturbation nor stimulation of the genitalia by a sexual device is a crime in Alabama. Indeed, many of the devices covered by the statute are the recommended treatment choice by therapists treating sexual dysfunction. The constitutional right of privacy established in a long line of United States Supreme Court decisions forbid this type of intrusion into an individual's lawful sexual practices and intimate medical affairs."

In any rational scheme of things, that would be a convincing argument, and District Court Judge Lynwood Smith found it to be so, though as Williams herself later observed, "Believe it or not, our biggest obstacle is that we won so big at the trial level."

What Judge Smith did was to find that, under a "rational basis review" – the lowest level of constitutional scrutiny a court can apply – Alabama's entire obscenity statute did not serve a legitimate governmental purpose, and he therefore enjoined the state from enforcing the statute.

The state, of course, appealed, and the Eleventh Circuit, in the first of its three decisions in this matter, reversed the lower court, finding that "the promotion and preservation of public morality provided a rational basis" for the law, and remanded the case to Judge Smith for consideration of the plaintiffs' as-applied challenge, in which they claimed that their inability to purchase sexual devices "burdened the right to use sexual devices within private adult, consensual sexual relationships."

"After a lengthy discussion of the history of sex in America," recapped the Eleventh Circuit in its second consideration of the Williams case, "the district court 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. 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. The district court accordingly applied strict scrutiny to the statute. Finding that the statute failed strict scrutiny, the district court granted summary judgment to the ACLU and once again enjoined the statute's enforcement."

Once again, Alabama appealed Judge Smith's ruling, and once again, the Eleventh Circuit reversed, holding that there was "no pre-existing, fundamental, substantive-due-process right to sexual privacy triggering strict scrutiny."

In so finding, the appeals court rejected the idea that Lawrence v. Texas (which had been decided after the district court's then-most-recent ruling but became part of the argument on appeal) had "recognize[d] a fundamental right to sexual privacy."  The Court further "declined to recognize a new fundamental right to use sexual devices." Once again, it remanded the case to the district court, asking it to "examine whether our holding in Williams II that Alabama's law has a rational basis (e.g., public morality) remains good law" since the Lawrence case had overruled Bowers v. Hardwick, the 1986 Supreme Court case which had found no right to private homosexual conduct.

On this remand, however, Judge Smith got the message, ruling that "public morality" was not barred as a rational basis for legislation, and that the Williams case was distinguishable enough from Lawrence that the Alabama law need not be struck down. The Eleventh Circuit took that opinion and ran with it, even though it claimed to have considered Judge Smith's summary judgment de novo – that is, its consideration also included an examination of the trial court's findings of evidence and law.

Oddly enough, that "examination" led them right back to their original conclusion: That the "public morality" in Alabama is adversely impacted if people can buy – and retailers can advertise – dildos and vibrators for use in their own homes.

Of course, in its opinion, the court never bothers to define what that "public morality" is. Instead, it goes into a long dissertation on why, even after Lawrence, it has the power to champion that morality.

"The ACLU argues that the Alabama statute at issue in this case, like the Texas sodomy statute at issue in Lawrence, intrudes into personal and private decisions about sexual intimacy," the Eleventh Circuit wrote. "However, while the statute at issue in Lawrence criminalized private sexual conduct, the statute at issue in this case forbids public, commercial activity. To the extent Lawrence rejects public morality as a legitimate government interest, it invalidates only those laws that target conduct that is both private and noncommercial... As the majority in Williams IV so colorfully put it: 'There is nothing 'private' or 'consensual' about the advertising and sale of a dildo'."

What the court leaves out is that there's nothing moral or immoral about selling or buying a sex toy. A vibrator is a chunk of plastic housing a motor and batteries that may or may not resemble a sexual organ, and commerce is the life-blood of America. Nobody's arguing (at least in this case) that people are buying the things, firing them up either in the store or on a street corner and having orgasms in the public square.

And no one presented evidence in this case that anyone was harmed, either physically or mentally, by those vibrators being sold. Indeed, the court noted that, "The challenged statute does not target possession, use, or even the gratuitous distribution of sexual devices. In fact, plaintiffs here continue to possess and use such devices."

In a sense, it's the Stanley v. Georgia problem all over again. Sure, says the Supreme Court, it's okay for you to own and use even obscene materials in the privacy of your own home; it's just illegal for you to buy the stuff in order to get it into your home in the first place!

In the end, the Eleventh Circuit comes down on the side of promoting ignorance and mythology over evidence and science.

"By upholding the statute, we do not endorse the judgment of the Alabama legislature," the Eleventh Circuit claims. "As we stated in Williams II: 'However misguided the legislature of Alabama may have been in enacting the statute challenged in this case, the statute is not constitutionally irrational under rational basis scrutiny because it is rationally related to the State's legitimate power to protect its view of public morality. The Constitution presumes that ... improvident decisions will eventually be rectified by the democratic process and that judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted."

In other words, no matter how irrationally the legislature has acted in enacting the obscene device part of its statute, the federal court system – at least in Florida, Georgia and Alabama – would have no problem with the state locking up someone who sold one of those devices, even though the state has not proffered any evidence – and indeed, no such evidence exists – that such sale would harm anyone.

Attorney Clyde DeWitt agrees.

"What the opinion is saying, essentially, is that the legislative branch of government has the unfettered power to decide for itself what the community's morality ought to be, and impose it on everyone else," DeWitt told AVN.com. "It doesn't have anything to do with what that morality actually is."

So what's the answer? Mount a hundred-thousand-dollar-plus referendum campaign to ask legislators to overturn their "moral law" so a couple of retailers can sell maybe a few hundred dollars' worth of dildos? Not exactly cost-effective!

Williams' only other check on that power will be a motion for an en banc rehearing on the matter before the entire Eleventh Circuit Court of Appeals, and beyond that, a petition for writ of certiorari to the U.S. Supreme Court. But neither of those requests need be granted, and with the current make-up of the high court, the outcome of a Supreme Court argument on the issue might make bad law for years to come.

Or might there be another, simpler solution?

Wikipedia, the online encyclopedia, defines "female hysteria" as "a popular diagnosis in the Victorian era for a wide array of symptoms including faintness, nervousness, insomnia, fluid retention, heaviness in abdomen, muscle spasm, shortness of breath, irritability, loss of appetite for food or sex, and a 'tendency to cause trouble.'"

"Patients diagnosed with female hysteria," the entry continues, "would undergo 'pelvic massage' — manual stimulation of the woman's genitals by the doctor to 'hysterical paroxysm', which is now recognized as orgasm." Wikipedia also calls it an "incorrect diagnosis," but if the ruling in the Williams case remains unchallenged, physicians in the Eleventh Circuit may find that they have to resurrect the "condition" in order to keep their patients out of jail.

In its latest Williams opinion, the Eleventh Circuit notes that Alabama's obscenity statute exempts sales of sexual devices "for a bona fide medical, scientific, educational, legislative, judicial, or law enforcement purpose." Is what's called for, then, some form of guerilla theater, where hundreds of free-thinkers, feminists, porn stars and strippers display "faintness, nervousness ... muscle spasms, shortness of breath, irritability ... and a 'tendency to cause trouble'" in public places across the state, and have friendly medical practitioners prescribe dildos and vibrators to relieve their "female hysteria"?

Only time will tell – but in the meantime, Williams will be accepting whatever donations the adult community wishes to make to her continued legal fight. Just go to mypleasurestore.com, and follow the instructions.

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Mark Kernes

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