Legal Devices

The continuing saga of Sherri Williams

Sherri Williams is a charming, intelligent and tenacious individual. She also is on a one-woman crusade (going on nine years) to secure a federal judicial finding that those absurd "obscene device" statutes are unconstitutional.

These statutes criminalize the sale of devices "designed or marketed as useful primarily for stimulation of human genital organs." They are what the late Justice Potter Stewart might have designated as anti-contraceptive statute, as "an uncommonly silly law."

During the 1970s, Morality in Media had its own crusade-traversing the country, seeking to have obscene-device statutes enacted everywhere. The idea was that outlawing such devices would strike a severe economic blow to the heart of the thriving adult bookstore industry.

The organization's first success was in Georgia, which was on its own crusade against adult bookstores. The challenge to Georgia's device statute was a disaster, rejected all the way to a summary approval by the U.S. Supreme Court (i.e. an approval on the merits, but without an opinion, under a procedure that is now for the most part not available but which, unlike denial of certiorari, has some precedential impact on the lower courts). Since then, six other states followed Georgia's lead. Texas' and Mississippi's laws that were found constitutional; however, statutes enacted in Colorado, Kansas, and Louisiana were found unconstitutional. (Alabama, though, was not such a clear case-I'll explain more below.) Although other cities have enacted similar laws, many cities still are precluded from enacting such ordinances because of a doctrine called "pre-emption" by state law.

The original Sherri Williams opinion in Williams v. Pryor, 41 F.Supp.2d 1257 - now referred to as "Williams I" - handed down by the U.S. District Court for the Northern District of Alabama was so persuasive that the Louisiana Supreme Court agreed with it, striking down Louisiana's matching statute. It resulted in a litany of legal woes: Williams v. Pryor, 41 F.Supp.2d 1257 (Williams I); revised, 240 F.3d 944 (11th Cir. 2000) (Williams II); Williams v. Pryor, 220 F.Supp.2d 1257 (Williams III); revised, 378 F.3d 1232 (11th Cir.2004) (Williams IV); and Williams v. King, 420 F.Supp.2d 1224 (Williams V). Likely to follow will be "Williams VI" in the 11th U.S. Circuit Court of Appeals and "Williams VII" in the U.S. Supreme Court.

You may be wondering how the Supreme Court fits into this equation. Well, the Court in 1986, in Bowers v. Hardwick, upheld a Georgia law criminalizing consensual homosexual activity. And, just a few years ago it overruled Bowers, striking down a materially identical Texas statute in Lawrence v. Texas. Justice Clarence Thomas proclaimed the Texas law as "uncommonly silly." He was joined by Justice Antonin Scalia, who made a profound observation:

"The Texas [sodomy] statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are ‘immoral and unacceptable'...the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity...The Court today reaches the opposite conclusion. The Texas statute, it says, ‘furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual'...The Court embraces instead . . . ‘the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice ' . . . This effectively decrees the end of all morals legislation."

Now, the notion that government has no legitimate interest in enacting laws against bigamy, adult incest, bestiality, and obscenity is pretty appealing; but, concerning "obscene device" issues, there certainly is credence to the idea that, if it is beyond the power of government to prohibit two individuals of the same gender from privately engaging in sexual activities, it likewise is overreaching to forbid the purchase of items designed for acts of private masturbation.

We can only hope that Williams continues to exhibit the staying power that has been evident since she first brought her case against then Bible-thumping, Alabama Attorney General Bill Pryor. Pryor, coincidentally, now sits on the 11th Circuit, which again will hear the appeal of the most recent decision in Williams' case-the same court that, in response to Alabama's claim that the state has a justifiable and socially moral interest in its citizens

private, sexual practices, concluded that:

"Alabama argues ‘a ban on the sale of sexual devices and related orgasm stimulating paraphernalia is rationally related to a legitimate legislative interest in discouraging prurient interests in autonomous sex' and that ‘it is enough for a legislature to reasonably believe that commerce in the pursuit of orgasms by artificial means for their own sake is detrimental to the health and morality of the State.' The criminal proscription on the distribution of sexual devices certainly is a rational means for eliminating commerce in the devices, which itself is a rational means for making the acquisition and use of the devices more difficult. Moreover, incremental steps are not a defect in legislation under rational basis scrutiny, so Alabama did not act irrationally by prohibiting only the commercial distribution of sexual devices, rather than prohibiting their possession or use or by directly proscribing masturbation with or without a sexual device."

The U.S. Supreme Court recently declined to consider the constitutionality of the Texas statute. However, that does not mean the Court approved the statute; it simply means the Court, for whatever reason, declined to consider it. One may speculate that the Supreme Court's refusal to consider the recent Texas case is because Williams' case - with a more thoroughly developed record - is on its way.