Can't buy a thrill: Substantive due process, equal protection, and criminalizing sex toys

Journal of Criminal Law and Criminology

Volumn 100, Issue 2, 2010, Pages 555-598

  Glover, Richard ^a  

^a NORTHWESTERN UNIVERSITY SCHOOL OF LAW   (United States)

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EID: 77956237874     PISSN: 00914169     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (329)

1. Jennifer Lee, Taking Election Freebies Without Guild, NYTIMES.COM, Nov. 4, 2008, http://cityroom.blogs.nytimes.com/2008/11/04/taking-election-freebies-wi thout-guilt
2. see also Mike Stuckey, Free Sex Toys-and Much More-for Voting, MSNBC.COM, Nov. 3, 2008, http://www.msnbc.msn.com/id/27455136 ("Just when you thought it was safe to focus on the issues in this historic election season....").
3. Id.
4. Babeland Blog, Babeland Rocks the Vote with Free Sex Toys, http://blog.babeland.com/2008/11/03/babeland-rocks-the-vote-with-free-se x-toys (last visited Feb. 5, 2010).
5. Id.
6. See Babeland Blog, Update on the Free Sex Toys, http://blog.babeland.com/2008/11/05/update-on-the-free-sex-toys (last visited Feb. 5, 2010).
7. Id.
8. Stuckey, supra note 1.
9. Vibrators are highlighted as an example because they are more effective, more innocuous, and have a shorter history than most sexual devices. The choice is appropriate given that the relevant discussion is properly focused around the role of orgasm rather than the means of achieving it. See discussion infra Part IV.A.2. Furthermore, that even vibrators are not constitutionally protected demands the corresponding conclusion that more prurient devices are not. Cf. infra note 271 and accompanying text.
10. 517 F.3d 738 (5th Cir. 2008), reh'g en banc denied, 538 F.3d 355 (5th Cir. 2008).
11. 478 F.3d 1316 (11th Cir. 2007), cert. denied, 552 U.S. 814 (2007).
12. THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE (4th ed. 2000). [hereinafter AMERICAN HERITAGE DICTIONARY].
13. See generally RACHEL P. MAINES, THE TECHNOLOGY OF ORGASM: "HYSTERIA," THE VIBRATOR, AND WOMEN'S SEXUAL SATISFACTION (1999) (detailing the history and medicalization of the female orgasm). Hysteria, a supposed revolt of the uterus against neglect that "combines in its connotation the pejorative elements of femininity and the irrational," has also been called "womb disease," "suffocation of the mother," "uterine congestion," "pelvic inflammation," "hysteroneurasthenia," and "frigidity." Id. at 21.
14. JOSEPH FRANK PAYNE, THOMAS SYDENHAM 143 (1900).
15. MAINES, supra note 12, at 8.
16. Id. at 4; AMERICAN HERITAGE DICTIONARY; supra note 11.
17. MAINES, supra note 12, at 23, 26-34 (describing historical causes and treatments of hysteria and awareness of the orgasmic nature of paroxysms). That hysterics, unlike epileptics, felt better after their spells and at no point became incontinent raised suspicions of malingering. Id. at 8.
18. See id. at 3; see also ANNE KOEDT, THE MYTH OF THE VAGINAL ORGASM (1970), available at http://www.cwluherstory.com/myth-of-the-vaginal-orgasm.html.
19. One doctor, in 1660, described the technique as "not unlike that children's game in which they try to rub their stomachs with one hand and pat their heads with the other." NATHANIEL HIGHMORE, DE PASSIONE HYSTERICA ET DE AFFECTIONE HYPOCHONDRIACA 76-77 (1660) ("Necnon in lusu illo puerorum, quo una manu pectus perfricare, altera frontem percutere conantur.").
20. See MAINES, supra note 12, at 4.
21. Cf. id. at 4, 67-110 (detailing the various methods of electrical, hydraulic, and mechanical manipulation brought to bear on the matter).
22. See Rachel Maines, Socially Camouflaged Technologies: The Case of the Electromechanical Vibrator, in WOMEN, SCIENCE, AND TECHNOLOGY: A READER IN FEMINIST SCIENCE STUDIES 223, 225 (Mary Wyer ed., New York 2001).
23. See MAINES, supra note 12, at 11 (noting the invention is less fatiguing and required less skill than manual massage, less expensive than hydriatic or steam-powered technologies, and more reliable, portable, and decentralizing than other physical therapies). The vibrator's invention also heralded a brief medical craze of treating all manner of ailments with "[u]ndulatory... [t]herapeutics." See id. at 97-99. The Food and Drug Administration regulates vibrators "for therapeutic use." 21 C.F.R. §§ 884.5940 & 5960 (2009).
24. AMERICAN PSYCHIATRIC ASSOCIATION, MENTAL DISORDERS DIAGNOSTIC MANUAL (1952).
25. See MAINES, supra note 12, at 20.
26. See id. at 58 ("Any object or device that traveled the path of the totemic penis into the vagina was... suspected of having an orgasmically stimulating effect."); ROBERT BRUDENELL CARTER, ON THE PATHOLOGY AND TREATMENT OF HYSTERIA 69 (London, 1853) (noting the "remedy is worse than the disease.... [Y]oung[,] unmarried women... [are] reduced by the constant use of the speculum to the mental and moral condition of prostitutes... asking every medical practitioner... to institute an examination of the sexual organs"); cf. Joan P. Emerson, Behavior in Private Places: Sustaining Definitions of Reality in Gynecological Examinations, 2 RECENT SOC. 74 (1970) (discussing the tension between the clinical and the sexual in gynecological exams and detailing the means of enforcing clinical perceptions, including norms against "threatening events" such as eye contact, casual conversation, and being either too modest or immodest).
27. Hysteria was thought to have its source in women's envy of men and failure to accept their role as women, and so it was regarded as an anti-male phenomenon. See Koedt, supra note 17 (explaining that this envy stemmed from women's "inferior appendage").
28. See MAINES, supra note 12, at 112 (defining "the androcentric paradigm of sexuality" as the idea that "sex consists of penetration (usually of the vagina) to male orgasm").
29. Marybeth Herald, A Bedroom of One's Own: Morality and Sexual Privacy After Lawrence v. Texas, 16 YALE J.L. & FEMINISM 1, 23 (2004).
30. See discussion infra Part IV.B.
31. FRANK S. CAPRIO, THE SEXUALLY ADEQUATE FEMALE 64 (1953) (stating that any woman that "is incapable of achieving orgasm via coitus" or "prefers clitoral stimulation" should be regarded as "suffering from frigidity and requir[ing]... assistance").
32. See Jane Gerhard, Revisiting "The Myth of the Vaginal Orgasm": The Female Orgasm in American Sexual Thought and Second Wave Feminism, 26 FEMINIST STUD. 449, 451-52 (2000) ("[M]edical experts had long debated... whether women required orgasm to be fertile[,] if orgasm... [was] a crucial element of a woman's physical and mental wellbeing[,] the social ramifications of "excessive' female desire, [and] the role the clitoris should or could play in healthy female sexuality.... Early nineteenth-century anatomy textbooks noted the existence of the clitoris but believed that... [it] was passive and unimportant.... By the twentieth century, most... did not label the clitoris or discuss its function."). Contra Koedt, supra note 17 (arguing that there was pervasive medical and common knowledge of the existence and importance of the clitoris and clitoral stimulation).
33. See ELISABETH A. LLOYD, THE CASE OF THE FEMALE ORGASM (2005) (analyzing twenty-one evolutionary accounts of female orgasm and finding that the only plausible explanation is as a byproduct of male orgasm and shared embryonic tissue, a "happy accident"). Recent research continues to challenge common and near universal "knowledge" regarding women's sexuality, often finding that knowledge both untested and wrong. See, e.g., Andrea Virginia Burri et al., Genetic and Environmental Influences on Self-Reported GSpots in Women: A Twin Study, 7 J. SEXUAL MED. 1842 (2010).
34. Cf. Reva Siegel, Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 STAN. L. REV. 261, 267-68 (1992) ("[S]ocial relations enforced by the body politic often find... justification in the organization of the female body itself.").
35. See Gerhard, supra note 31, at 452.
36. See MAINES, supra note 12, at 100.
37. See id. at 19-20, 100-08 (listing publications advertising various vibrator technologies including the electromechanical vibrator); Maines, supra note 21, at 228-31 (presenting a similar, but not identical list).
38. See Maines, supra note 21, at 228-31.
39. See id. at 231.
40. See MAINES, supra note 12, at 100 (noting the electrification of the vibrator preceded appliances such as the vacuum cleaner and iron).
41. See id. at 20; MAINES, supra note 21, at 223 (noting that appearances of vibrators in stag films "may have rendered the camouflage inadequate").
42. See MAINES, supra note 12, at 43-45 (discussing Freud's Aetiology of Hysteria-which finds hysteria's origin in "juvenile exposures to sexuality"-and its ascendancy to dominant paradigm in the late 1920s); Gerhard, supra note 31, at 452-59 (discussing Freud's theory of the primary importance of vaginal orgasm being linked to men and its development from the 1930s to the 1960s by Deutsch, Hitschmann & Bergler, and Farnham & Lundberg). Astonishingly, dedication to the assumptions of Freud's model was so deep that some researchers even suggested "treating" women by surgically transplanting the clitoris closer to the vagina. See MARIE BONAPARTE, FEMALE SEXUALITY 148 (1953).
43. See MAINES, supra note 12, at 34 (noting the fracture of hysteria into three related "diseases" and the disagreement within the medical community whether sexual indulgence and masturbation were symptoms or causes of the conditions).
44. Id. at 20.
45. See Lessley Anderson, A Sex Toy Story, CNNMONEY.COM, June 1, 2006, http://money.cnn.com/magazines/business2/business2_archive/2006/05/01/83 75938/index.htm.
46. See Gerhard, supra note 31, at 459-68 (explaining Koedt's and others' incorporation of work by sexologists like Kinsey et al. and Masters & Johnson into a feminist critique of the Freudian model).
47. See MAINES, supra note 12, at 112 ("What is impressive, however, is that the androcentric paradigm of sexuality... is a fixed point in the otherwise shifting sands of Western medical opinion.").
48. See infra note 50 and accompanying text.
49. See, e.g., Kristin Fasullo, Beyond Lawrence v. Texas: Crafting a Fundamental Right to Sexual Privacy, 77 FORDHAM L. REV. 2997, 3013-16 (2009) (detailing the popularity of devices, including attention from Oprah Winfrey as well as offerings from retailers like Amazon.com, Walmart, and Target).
50. See infra note 50. But see Danielle J. Lindemann, Pathology Full Circle: A History of Anti-Vibrator Legislation in the United States, 15 COLUM. J. GENDER & L. 326, 330 (2006) (noting that the number of states with statutes that prohibit the sale of sexual devices is "almost impossible to assess accurately at any one time, due to spotty enforcement and the fact that these laws are continually in flux"). Some estimates are as high as fourteen. Id. at 330-31. Virginia's statute appears to be one that is unenforced. Cf. Allison Klein, In Old Town, the Sex Shop Is a Kiss-Off, WASH. POST, Mar. 1, 2009, at A1 (suggesting "[t]he city cannot act because the store is complying with the law" despite the fact that the store markets and sells sexual devices).
51. See ALA. CODE § 13A-12-200.2(a)(1) (1975 & Supp. 2003); COLO. REV. STAT. § 18-7- 101 (Supp. 1984), invalidated by People ex rel. Tooley v. Seven Thirty-Five East Colfax, Inc., 697 P.2d 348 (Colo. 1985); GA. CODE ANN. § 16-12-80 (2003), invalidated by This That & The Other Gift & Tobacco, Inc. v. Cobb County, 439 F.3d 1275 (11th Cir. 2006); KAN. STAT. ANN. § 21-4301 (2003), invalidated by State v. Hughes, 792 P.2d 1023 (Kan. 1990); LA. REV. STAT. ANN. § 14:106.1 (2003), invalidated by State v. Brenan, 772 So. 2d 64 (La. 2000); MISS. CODE ANN. § 97-29-105 (2000); TEX. PENAL CODE ANN. §§ 43.21 & 43.23 (Vernon 2003), invalidated by Reliable Consultants, Inc. v. Earle, 517 F.3d 738 (5th Cir. 2008), reh'g en banc denied, 538 F.3d 355 (5th Cir. 2008); VA. CODE ANN. 18.2-373(3) (2000). At least one municipality had a similar statute. See ST. LOUIS REV. CODE § 11.54.010 (2008), invalidated by Postscript Enter. v. Whaley, 658 F.2d 1249 (8th Cir. 1981).
52. See, e.g., Postscript Enter., 658 F.2d at 1254 n.6 ("We assume, without having to decide, that the City of St. Louis may, through a properly drawn ordinance, restrict the sale of items which enable, aid, or encourage private consensual sexual behavior among adults.").
53. See Tooley, 697 P.2d at 370.
54. Id. (noting that FDA regulations implied legitimate therapeutic use and that the statute as written "equate[s] sex with obscenity," but declining to reach whether there is a broader constitutional privacy interest violated by the statute).
55. See Hughes, 792 P.2d at 1031 (citing to and agreeing with Tooley, [but noting that the statute permissibly defined "obscene" beyond community standards because Miller v. California, 413 U.S. 15 (1973), does not apply to devices).
56. See Brenan, 772 So. 2d at 74 (noting that the Miller test does not necessarily apply to devices, but applying the Miller test to find devices not always obscene, thereby eliminating any state interest that could surpass therapeutic interest under rational basis review).
57. GA. CODE ANN. § 16-12-80 (2003), invalidated by This That & The Other Gift & Tobacco, Inc. v. Cobb County, 439 F.3d 1275 (11th Cir. 2006).
58. See This That & The Other, 439 F.3d at 1284-85 (suggesting that the state's failure to argue a limiting construction of the statute, rather than an inherent flaw in the law, mandated invalidation of the entire statute).
59. See Regina Nuzzo, Call Him Doctor "Orgasmatron", L.A. TIMES, Feb. 11, 2008, http://www.latimes.com/features/health/la-he-orside11feb11,1,7473561.sto ry.
60. Williams v. Pryor (Williams I), 41 F. Supp. 2d 1257 (N.D. Ala. 1999), rev'd, 240 F.3d 944 (11th Cir. 2001).
61. Some of this complexity stems from the fact that the complaint originated prior to, but terminated after, the Supreme Court's decision in Lawrence v. Texas, 539 U.S. 558 (2003). See, e.g., Williams I, at 1279, 1282-83 (referencing Carey v. Population Services International, 431 U.S. 678, 694 n.17 (1977), for the proposition that the Court has not decided whether states can regulate sexual behavior among adults).
62. See Williams I, 41 F. Supp. 2d 1257; ALA. CODE § 13A-12-200.2(a)(1) (1975 & Supp. 2003).
63. See Williams I, 41 F. Supp. 2d at 1260, 1275.
64. Id. at 1283-84, 1287-93.
65. Id. at 1285-87, 1288-93 (finding that commerce in sexual devices does not require public display, that such devices are often used within marriages and relationships rather than for auto-eroticism, and that many such devices are not obscene).
66. Williams v. Pryor (Williams II), 240 F.3d 944 (11th Cir. 2001).
67. Id. at 949-50 (noting that the legislation might even survive intermediate scrutiny but not addressing that question).
68. Id. at 950-52 (noting that the standard for overbreadth derived from Turner v. Safley, 482 U.S. 78 (1987), is specific to prison regulations; that Romer v. Evans, 517 U.S. 620 (1996), was not based on rational basis review; and that decisions addressing prejudicial classification under equal protection are inappropriate when applied to a case involving neither classification nor equal protection).
69. Id. at 952 ("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.").
70. Id. at 955-56 (criticizing the trial court for failing to undertake a Glucksberg analysis of "deeply rooted" and "central liberty" with regard to the user plaintiffs).
71. Williams v. Pryor (Williams III), 220 F. Supp. 2d 1257 (N.D. Ala. 2002) (mem.) (taking plaintiff's presented history as correct because of the state's concession of the point).
72. Id. at 1278-80 (quoting MICHEL FOUCAULT, THE HISTORY OF SEXUALITY (1990)).
73. Id. (noting the Puritans' distinction between "proper sexual expression" within marriage and "sexual transgression" outside of marriage).
74. Id. at 1280-82 (noting a "gradual although irregular decline in sexual oppression").
75. Id. at 1282-89 (acknowledging the Comstock laws as an aberration of the era, and assuming the exception of vibrators from Comstock laws was evidence of "legislative respect for sexual privacy in the marital relationship").
76. Id. at 1289-94 (taking as a sign of the times, inter alia, the fact that the Model Penal Code excepts deviate sexual intercourse between consenting adults from criminal sanction).
77. Id. at 1295.
78. Id. at 1303-07.
79. Williams v. Att'y Gen. of Ala. (Williams IV), 378 F.3d 1232 (11th Cir. 2004).
80. 539 U.S. 558 (2003). Lawrence is discussed at length infra Parts IV.A.1-3.
81. Williams IV, 378 F.3d at 1236-37.
82. Id. at 1235 (quoting Washington v. Glucksberg, 521 U.S. 702, 727 (1997)).
83. Id. at 1235-36 (noting that Lawrence did not apply fundamental rights analysis, ultimately applying rational basis review).
84. Id. at 1239-50. The so-called "Glucksberg Two-Step" requires a "careful description" of the asserted liberty interest and inquires whether a right or liberty is objectively "deeply rooted in the nation's history and traditions." See Glucksberg, 521 U.S. at 721. The Glucksberg analysis is discussed infra notes 156-59 and accompanying text.
85. Williams v. Pryor (Williams II), 240 F.3d 944, 953 (11th Cir. 2001).
86. Williams IV, 378 F.3d at 1239 & n.10 (remarking that such a mistake is understandable given the imprecise language utilized in Williams II, 240 F.3d at 953).
87. Id. at 1239-40.
88. Id. at 1242 (acknowledging that the minimum, "careful" formulation is merely one of selling and purchasing, but noting that the commercial burden is "tantamount to restrictions on the use" and so requiring use analysis as well).
89. Id. at 1242-43 (noting that the correct inquiry would be one into the treatment of sexual devices).
90. Id. at 1243-44 & n.14 (noting that Glucksberg's reference to contemporary practice was a non-essential confirmation of its historical finding of no deeply-rooted right rather than, as here, a contradiction of it, and observing that the contemporary trend actually "proves too much" by confirming the court's deference to democratic process).
91. Id. at 1244-45 (noting that by finding a negative rather than affirmative protection, the district court inverted the Glucksberg inquiry in a way that would support a fundamental freedom to pollute, discriminate, and commit marital rape as well as give a perverse incentive to legislatures to regulate all aspects of life).
92. Id. at 1246-50 (noting that the plaintiff's expert's testimony often amounts to bare and biased assertion without independent verification, or statements in contradiction with the expert's previous academic works; also noting that the state did not, as the trial court claimed and relied on, concede this historical treatment).
93. 478 U.S. 186 (1986).
94. Williams IV, 378 F.3d. at 1250.
95. See Williams v. King (Williams V), 420 F. Supp. 2d 1224 (N.D. Ala. 2006) (noting that none of the targeted devices represent implements common to the homosexual lifestyle, nor does the law target a specific, identifiable class for discrimination or harm out of simple hostility).
96. See Williams v. Morgan (Williams VI), 478 F.3d 1316, 1322 (11th Cir. 2007).
97. Compare Williams IV, 378 F.3d at 1242 ("[O]ur analysis must be framed not simply in terms of whether the Constitution protects a right to sell and buy sexual devices, but whether it protects a right to use such devices.") (emphasis added), with Williams VI, 478 F.3d at 1323 ("[W]e do not read Lawrence, the overruling of Bowers, or the Lawrence court's reliance on Justice Stevens's dissent, to have rendered public morality altogether illegitimate as a rational basis.") (emphasis added).
98. 517 F.3d 738 (5th Cir. 2008), reh'g en banc denied 538 F.3d 355 (5th Cir. 2008).
99. See id. at 740; TEX. PENAL CODE ANN. § 43.21, 43.23 (Vernon 2003), invalidated by Reliable Consultants, Inc. v. Earle, 517 F.3d 738 (5th Cir. 2008). The case also presented a First Amendment challenge, but the court did not reach that issue because doing so was unnecessary to invalidate the statute in this case and "it may be premature." See Reliable Consultants, 517 F.3d at 747.
100. Reliable Consultants, 517 F.3d at 742.
101. Id. at 743-47 (finding that Lawrence majority rested entirely on substantive due process grounds and applying the Lawrence analysis to the Texas statute).
102. Id. at 743.
103. Id. at 743-44 (finding substantial similarity-prohibition of a particular sexual act- between the law in Bowers and the law here (quoting Lawrence v. Texas, 539 U.S. 558, 567 (2003))).
104. Id. at 744.
105. Id. at 745 (quoting Lawrence, 539 U.S. at 564). In a footnote, however, the court observed that its holding "in no way overtly expresses or implies that public morality can never be a constitutional justification for a law." Id. at 564 n.36.
106. Id. at 746.
107. Id. at 749 (Hawkins, J., concurring in part and dissenting in part).
108. Reliable Consultants, Inc. v. Earle, 538 F.3d 355, 356 & n.1 (5th Cir. 2008) (Jones, C.J., Jolly, Smith, Clement & Owen, JJ., dissenting from denial of rehearing en banc) (quoting Muth v. Frank, 412 F.3d 808, 819 (7th Cir. 2005) (Evans, J., concurring)).
109. Id. at 358 (Garza, J., dissenting from denial of rehearing en banc).
110. Id. at 359.
111. Id. at 360 n.5; id. at 365 (Elrod, J., dissenting from denial of rehearing en banc) (citing Lowry v. Texas A & M University System, 117 F.3d 242, 247 (5th Cir. 1997), for the rule that a previous panel decision may only be overruled by ""a subsequent decision of the Supreme Court or by the Fifth Circuit sitting en banc'" noting also the creation of a circuit split with the Eleventh and, arguably, Tenth Circuits).
112. Reliable Consultants, 538 F.3d at 360 n.5 (Garza, J., dissenting from denial of rehearing en banc).
113. 435 U.S. 982 (1978).
114. Id. (quoting Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989)); accord United States v. Harb, No. 2:07-CR-426 TS, 2009 WL 499467, at 2 (D. Utah Feb. 27, 2009) (declining to extend substantive due process right in Lawrence beyond its facts, noting the Supreme Court must further interpret Lawrence before the lower courts can overrule binding precedent).
115. 1568 Montgomery Highway, Inc. v. City of Hoover, No. 1070531, 2009 WL 2903458 (Ala. Sept. 11, 2009).
116. Id. at 22.
117. Id.
118. See Varkonyi v. State, 276 S.W.3d 27 (Tex. App. 2008) (declining to extend a fundamental right to sexual privacy); Villarreal v. State, 276 S.W.3d 204 (Tex. App. 2008) (declining to follow the Fifth Circuit's announcement of same).
119. 276 S.W.3d at 27.
120. Id. at 37.
121. Id.
122. Id.
123. Id. at 38 ("We decline to follow Reliable Consultants because we do not read Lawrence as overruling this line of authority.").
124. One such distinction, for example, is that some obscene materials, like child pornography, may necessarily harm others in their production.
125. 276 S.W.3d 204 (Tex. App. 2008).
126. Id. at 206.
127. Id. at 208-09 (agreeing with the Reliable court's ruling but conforming to controlling authority) (citing Yorko v. State, 690 S.W.2d 260 (Tex. Crim. App. 1985), and Ex parte Dave, 220 S.W.3d 154 (Tex. App. 2007)).
128. Id. at 209.
129. Id. at 207 (quoting Regalado v. State, 872 S.W.2d 7, 11 (Tex. App. 1994) (Brown, C.J., concurring)).
130. See Slav Kandyba, Texas AG Drops Adult Toy Case Appeal, XBIZ NEWS, Nov 4, 2008, http://www.xbiz.com/news/101202.
131. See 28 U.S.C. § 2241 (2006).
132. If Texas's reaction to Lawrence is any indication, repeal is not likely. The statute that Lawrence declared unconstitutional is still on the books. See TEX. PENAL CODE ANN. § 21.06 (Vernon 2003 & Supp. 2008).
133. See, e.g., Lindemann, supra note 49. The author excludes case notes that merely characterize existing law, such as Douglas E. Nauman, Where Sexual Privacy Meets Public Morality: How Williams v. King Is Instructive for the Fourth Circuit in Applying Public Morality as a Legitimate State Interest After Lawrence v. Texas, 29 N.C. CENT. L.J. 127 (2006).
134. U.S. CONST. amend. XIV, § 1; see U.S. CONST. amend. V.
135. See LAWRENCE H. TRIBE, 1 AMERICAN CONSTITUTIONAL LAW 1332-33 (3d ed. 2000) ("[B]y 1868, a recognized meaning of the qualifying phrase "of law' was substantive."). But see JOHN HART ELY, DEMOCRACY AND DISTRUST 18 (1980) (calling substantive due process an oxymoronic contradiction in terms akin to "green pastel redness"); Kermit Roosevelt III, Forget the Fundamentals: Fixing Substantive Due Process, 8 U. PA. J. CONST. L. 983, 984 (2006) (calling the formulation a pleonasm).
136. Roosevelt, supra note 134, at 984.
137. Id. at 986-87.
138. See id. at 988-89 (suggesting that substantive due process collapsed under the weight of the economic turmoil of the 1930s and the realization that identifying partial state interventions in the market was impossible).
139. Id. at 992.
140. Id.
141. 304 U.S. 144 (1938).
142. See id. at 153 n.4. That Carolene Products became the foundation of the Equal Protection Clause doctrine rather than substantive due process is a remnant of the Court's attempt in Bolling v. Sharpe, 347 U.S. 497 (1954), to reverse incorporate the Equal Protection Clause into Fifth Amendment due process. See Roosevelt, supra note 134, at 997-98. This move has been characterized as ""gibberish both syntactically and historically'" because it would make the Fourteenth Amendment's separate guarantees of equal protection and due process redundant as well as force a text from 1791 to "incorporate" a text from 1868. Id. (quoting ELY, supra note 134, at 32).
143. See U.S. CONST. amend. IX ("The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.").
144. See Moore v. City of East Cleveland, 431 U.S. 494, 503 (1977).
145. See Palko v. Connecticut, 302 U.S. 319, 325, 326 (1937).
146. Washington v. Glucksberg, 521 U.S. 702, 720 (1997) (citations omitted).
147. Lawrence v. Texas, 539 U.S. 558 (2003). A common misconception is that these rights are decidedly liberal in nature. For criticisms of that view, see Bradley P. Jacob, Griswold and the Defense of Traditional Marriage, 83 N.D. L. REV. 1199, 1213 (2007) ("[J]ust about everyone, regardless of political perspective, can identify some rights that seem so incredibly important as to require judicial application.")
148. Mark Tushnet, Can You Watch Unenumerated Rights Drift?, 9 U. PA. J. CONST. L. 209 (2006).
149. See Gerald Gunther, The Supreme Court, 1971 Term-Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 HARV. L. REV. 1, 8 (1972). Contra Adam Winkler, Fatal in Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny in the Federal Courts, 59 VAND. L. REV. 793 (2006) (surveying every strict scrutiny decision published by the district, circuit, and Supreme Courts from 1990 to 2003 and finding that strict scrutiny is not nearly as fatal as generally believed, with laws surviving more than thirty percent of challenges).
150. See, e.g., First Nat'l Bank of Bost. v. Bellotti, 435 U.S. 765, 786 (1978).
151. See Gunther, supra note 147, at 8 ("[M]inimal scrutiny in theory and virtually none in fact.").
152. See FCC v. Beach Commc'ns, Inc., 508 U.S. 307, 313-14 (1993) (stating that legislation will be upheld under rational basis review "if there is any reasonably conceivable state of facts that could provide a rational basis" and "where there are "plausible reasons' for Congress' action, "our inquiry is at an end'" (quoting U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 179 (1980))); Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 487-88 (1955) ("[T]he law need not be in every respect logically consistent with its aims.... It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it.").
153. See Gen. Motors Corp. v. Romein, 503 U.S. 181, 191 (1992) (noting that rational basis review requires "legitimate legislative purpose furthered by rational means").
154. See, e.g., Roosevelt, supra note 134, at 993.
155. Cass R. Sunstein, Due Process Traditionalism, 106 MICH. L. REV. 1543, 1567-68 (2008).
156. Moore v. City of East Cleveland, 431 U.S. 494, 502 (1977) (plurality) (citing Lochner-era economic due process as exemplary of the pitfalls of judge-made rights, but noting that history "counsels caution and restraint[,]... [not] abandonment"); see also id. at 544 (White, J., dissenting) ("The Judiciary... comes nearest to illegitimacy when it deals seem so incredibly important as to require judicial application."); Mark Tushnet, Can You Watch Unenumerated Rights Drift?, 9 U. PA. J. CONST. L. 209 (2006). with judge-made constitutional law having little or no cognizable roots in the language or even the design of the Constitution.").
157. See Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992) ("[T]he Court has always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this uncharted area are scarce and open-ended [and so the Court] exercise[s] the utmost care whenever asked to break new ground in this field.").
158. Reno v. Flores, 507 U.S. 292, 302 (1993). This "careful statement" has sometimes been characterized as requiring definition of the right at "the most specific level at which a relevant tradition protecting, or denying protection to, the asserted right can be identified." Michael H. v. Gerald D., 491 U.S. 110, 128 n.6 (1989). The careful statement requirement has been criticized as allowing courts to pick and choose between competing accurate descriptions of the activity involved based on the desired outcome of the case. See, e.g., Randy E. Barnett, Scrutiny Land, 106 MICH. L. REV. 1479, 1490 (2008).
159. Moore, 431 U.S. at 503.
160. Palko v. Connecticut, 302 U.S. 319, 325, 326 (1937); see also Robert C. Post, Foreward: Fashioning the Legal Constitution: Culture, Courts, and Law, 117 HARV. L. REV. 4, 89 (2003) (describing this "approach as "focus[ing] on the forms of liberty prerequisite for personal dignity and autonomy"). For a general discussion of fundamental inadequacies of the focus on history and tradition, see Sunstein, supra note 153.
161. See Daniel O. Conkle, Three Theories of Substantive Due Process, 85 N.C. L. REV. 63, 98-106 (2006) (citing Roe v. Wade, 410 U.S. 113 (1973), Bowers v. Hardwick, 478 U.S. 186, 199 (1986) (Blackmun, J., dissenting), and Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992)).
162. Lawrence v. Texas, 539 U.S. 558, 572 (2003); cf. Herald, supra note 28, at 30 ("Rather than attack the standard directly as one easily manipulated, Kennedy simply manipulates the standard, deftly showing by example the dangerous plasticity of the tradition and history doctrine.").
163. See Conkle, supra note 159 at 115-33; Michael J. Hooi, Substantive Due Process: Sex Toys After Lawrence, 60 FLA. L. REV. 507, 509-10 (2008). For general discussions of the impact of Lawrence on substantive due process, see H.N. HIRSCH, THE FUTURE OF GAY RIGHTS IN AMERICA (2005).
164. See Deana Pollard Sacks, Elements of Liberty, 61 SMU L. REV. 1557, 1560-61 (2008) ("To this end, the Court has constructed various interpretive methods, which are then engaged irregularly or simply discarded." (citing, inter alia, the penumbra approach to privacy as being discarded less than a decade after its announcement)).
165. Michael P. Allen, The Underappreciated First Amendment Importance of Lawrence v. Texas, 65WASH. & LEE L. REV. 1045, 1051 (2008).
166. Cass R. Sunstein, What Did Lawrence Hold? Of Autonomy, Desuetude, Sexuality, and Marriage, 55 SUP. CT. REV. 27, 29, 45 (2003).
167. Nan D. Hunter, Living with Lawrence, 88 MINN. L. REV. 1103, 1118 (2004); see also Mary Anne Case, Of "This" and "That" in Lawrence v Texas, 55 SUP. CT. REV. 75 (2003) (noting that, because the "lack of clarity concerning antecedents in the opinion goes beyond the merely grammatical," the language and reasoning "frequently point in a direction" that, upon review, "reverses itself or dissolves into ambiguity"); Herald, supra note 28, at 29 ("The opinion has language that gives and then takes, sometimes in the same sentence.").
168. See Andrew Koppelman, Lawrence's Penumbra, 88 MINN. L. REV. 1171, 1180 (2004) (calling Lawrence "poor judicial craftsmanship" and noting "[i]ts reasoning is obscure, and it lays down no clear rule"); see also Herald, supra note 28, at 32 n.212 (suggesting that the Lawrence doctrine parallels the discarded obscenity doctrine of "I know it when I see it"). But cf. Jamal Greene, The So-Called Right to Privacy, 43 U.C. DAVIS L. REV. 715, 746 (2010) (arguing that, after Lawrence, what was once haphazardly protected under privacy has now correctly shifted to protection under liberty, with either negative repercussions for the use of sexual devices if pursued under privacy or trivializing consequences for gay rights if pursued under liberty); Pamela S. Karlan, Foreword: Loving Lawrence, 102 MICH. L. REV. 1447, 1449 (2004) ("Like Loving, Lawrence marks a crystallization of doctrine.").
169. See Williams v. Att'y Gen. of Ala. (Williams IV), 378 F.3d 1232, 1236 n.6 (11th Cir. 2004) ("Rather, the constitutional liberty interests on which the Court relied were invoked, not with "careful description,' but with sweeping generality.").
170. See Lawrence v. Texas, 539 U.S. 558, 586 (2003) (Scalia, J., dissenting).
171. See Herald, supra note 28, at 30 ("Lawrence was not written to praise liberty, but to bury Bowers.... Thus, although it is clear that Bowers is dead, it is unclear what doctrine lives on.").
172. See Cook v. Gates, 528 F.3d 42, 51 n.5 (1st Cir. 2008).
173. See Lawrence, 539 U.S. at 586 (Scalia, J., dissenting).
174. See Cook, 528 F.3d at 51 n.6.
175. See id. at 51 n.7.
176. Sunstein, supra note 164, at 28.
177. Herald, supra note 28, at 33-34. That sexual devices can be used in sodomy is clear, but they are neither particular nor essential to sodomy, and therefore that element is omitted from this analysis.
178. Id. at 34 ("With regard to... Lawrence, then, the use of sex aids is different only in the nature of the private sexual act.") (emphasis added).
179. 505 U.S. 833 (1992).
180. See Williams v. Att'y Gen. of Ala. (Williams IV), 378 F.3d 1232, 1242 (11th Cir. 2004); Reliable Consultants, Inc. v. Earle, 517 F.3d 738, 743 (5th Cir. 2008). Casey is not nearly as clear about what delineates an undue burden from an acceptable burden.
181. Lawrence v. Texas, 539 U.S. 558, 586 (2003) (Scalia, J., dissenting) (noting references to "fundamental proposition[s]" and "fundamental decisions," but not "fundamental right[s]").
182. Id. at 578.
183. See id. at 586, 599. But see Matthew Coles, Lawrence v. Texas & the Refinement of Substantive Due Process, 16 STAN. L. & POL'Y REV. 23, 27-28 (2005) (cautioning against attaching significance to "legitimate," noting, Justice Douglas's use of "legitimate" while establishing a fundamental right in Griswold).
184. See Coles, supra note 181, at 28-29 ("Sodomy was perfectly acceptable when practiced by ninety to ninety-six percent of Texans.... It was only wrong when performed by same-sex couples.").
185. Lawrence, 539 U.S. at 578.
186. See Williams v. Pryor (Williams I), 41 F. Supp. 2d 1257, 1285-87 (N.D. Ala. 1999).
187. See id. at 1288-93.
188. See discussion infra Part IV.A.3.
189. See Reliable Consultants, Inc. v. Earle, 517 F.3d 738, 746 (5th Cir. 2008).
190. When the statute has no explicit severability provision, courts will often infer such power. See, e.g., Ayotte v. Planned Parenthood of N. New Eng., 546 U.S. 320, 328-29 (2006) ("Generally speaking, when confronting a constitutional flaw in a statute, we try to limit the solution to the problem. We prefer, for example, to enjoin only the unconstitutional applications of a statute while leaving the other applications in force, or to sever its problematic portions while leaving the remainder intact[.]") (citations omitted). Courts sometimes will not sever, even in the face of an explicit severability clause, if they find the severance to be against the intention of the legislature. See, e.g., Immigration & Naturalization Serv. v. Chadha, 462 U.S. 919, 1013-16 (1983) (Rehnquist & White, JJ., dissenting). However, there is no indication here that the Fifth Circuit even entertained such an inquiry, and the goal of the statute seems to be furthered by a continued ban on commerce.
191. Coles, supra note 181, at 30.
192. Lawrence v. Texas, 539 U.S. 558, 578 (2003) ("The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.") (emphasis added).
193. Coles, supra note 181, at 30. But see Case, supra note 165, at 83-84 (noting that the majority says "which can justify" rather than "that can justify," the former being a nonrestrictive clause and so parenthetical, leading to the conclusion that despite the appearance of "justify," Lawrence still only applied rational basis review).
194. Lawrence, 539 U.S. at 578.
195. See Coles, supra note 181.
196. Id. at 32.
197. See id. at 34 (citing several instances where the court did not undertake a fundamental right analysis when relying on a previously acknowledged fundamental right).
198. Lawrence, 539 U.S. at 564-65; see David Cruz, The "Sexual Freedom Cases?" Contraception, Abortion, Abstinence, and the Constitution, 35 HARV. C.R.-C.L. L. REV. 299, 318 (2000) (suggesting these opinions most accurately portray a broader right to sex or ""freedom to engage in... sexual intercourse without fear of familial or reproductive consequences'" (quoting Robin West, Integrity and Universality: A Comment on Ronald Dworkin's Freedom's Law, 65 FORDHAM L. REV. 1313, 1325 (1997))).
199. See Coles, supra note 181, at 36.
200. See discussion supra Part III.B.
201. See discussion supra Part III.A.
202. See discussion supra Part III.B.
203. See Lawrence v. Texas, 539 U.S. 558 (2003) (extending privacy right to private sex between consenting adults); Roe v. Wade, 410 U.S. 113 (1973) (declaring a right to choose to terminate pregnancies); Eisenstadt v. Baird, 405 U.S. 438 (1972) (extending the right to choose contraception to non-married couples); Griswold v. Connecticut, 381 U.S. 479 (1965) (declaring a right of married couples to choose contraception).
204. See Lindemann, supra note 49, at 343 (quoting the Alabama Attorney General, who declared no "constitutional right to purchase a product to use in pursuit of having an orgasm").
205. Sharon E. Rush, Whither Sexual Orientation Analysis?: The Proper Methodology When Due Process and Equal Protection Intersect, 16WM. &MARY BILL RTS. J. 685 (2008).
206. See, e.g., id. at 734-35 ("[The collapsible error] build[s] an inequality into the analysis ab initio [and] creates an (unconstitutional) irrebuttable presumption that the underlying right ([e.g.,] homosexual sodomy) is not fundamental.").
207. Id. at 733.
208. See Ellen Waldman & Marybeth Herald, Eyes Wide Shut: Erasing Women's Experiences from the Clinic to the Courtroom, 28 HARV. J.L. & GENDER 285, 306 (2005) (claiming the Court "opportunistically replaces sexual privacy, an abstract concept[,]... with particular sexual devices").
209. Cf. Kim Shayo Buchanan, Lawrence v. Geduldig: Regulating Women's Sexuality, 56 EMORY L.J. 1235, 1251 (2007) ("Due process sexual liberty requires plaintiffs to assert a pleasure-based rather than a therapeutic rationale.").
210. See discussion supra Part III.B.
211. See Cruz, supra note 196; Angela Holt, From My Cold Dead Hands: Williams v. Pryor and the Constitutionality of Alabama's Anti-Vibrator Law, 53 ALA. L. REV. 927, 940- 41 (2002) (explaining the "abstinence gap" argument).
212. Herald, supra note 28, at 29 ("The Lawrence decision disengaged sex from reproduction by protecting sexual relationships where procreation was not possible."). 211 Id.
213. See ANNIE POTTS, THE SCIENCE/FICTION OF SEX: FEMINIST DECONSTRUCTION AND THE VOCABULARIES OF HETEROSEX 99-100 (2002) ("[P]erhaps this embryonic idea of... sex would incorporate the "possibilities' of multiple pleasures; climax would become neither the target nor the non-target of sex, neither the "terminus ad quem' nor the origin toward which we struggle back, but rather it would be a supplement... nor would [orgasms] be mystified to (always) mean the only source of some peak experience and intimacy."). This Comment does not intend to over-generalize by referring to a single feminist position. However, a poll of the applicability of various feminist theories would fill a paper in its own right.
214. See Buchanan, supra note 207, at 1272-73.
215. See id. at 1273-74 (citing as examples Bowers v. Hardwick, 478 U.S. 186 (1986) and Williams v. Att'y Gen. of Ala. (Williams IV), 378 F.3d 1232 (11th Cir. 2004)).
216. Id. at 1273-74 (citing as examples Lawrence v. Texas, 539 U.S. 558 (2003), Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992), and Roth v. United States, 354 U.S. 476 (1957)).
217. Bowers, 478 U.S. at 190.
218. Lawrence, 539 U.S. at 567; see also Katherine M. Franke, The Domesticated Liberty of Lawrence v. Texas, 104 COLUM. L. REV. 1399, 1408 (2004) (noting that no information in the record indicates that Lawrence and his sexual partner, Garner, were in a relationship, and asking rhetorically, "More enduring than what? Than sex?").
219. See Franke, supra note 217, at 1417.
220. See discussion infra Part IV.B.
221. In the same sense that access to contraception is protected, but not provided in all forms by all methods, recognizing a right to pursuing orgasm does not demand that the state sanction all means of achieving orgasm. Cf. David Dolinko, Retributivism, Consequentialism, and the Intrinsic Goodness of Punishment, 16 LAW & PHIL. 507, 519 n.36 (1997) ("One might well believe that the intensely pleasurable sensations accompanying orgasm are intrinsically good, without for a moment supposing that this suggests a duty to set up state institutions to dole out orgasms.... There is likewise no duty on any individual to provide others with orgasms whenever he or she is in a position to do so.").
222. See discussion infra Part IV.B; cf. Catharine A. MacKinnon, Reflections on Sex Equality Under Law, 100 YALE L.J. 1281, 1300 (1991) ("Women can have abortions so that men can have sex.").
223. Donald L. Beschle, Lawrence Beyond Gay Rights: Taking the Rationality Requirement for Justifying Criminal Statutes Seriously, 53 DRAKE L. REV. 231, 237 (2005) (quoting Lawrence, 539 U.S. at 567).
224. Id. at 233; see also Barnett, supra note 156; Karlan, supra note 166, at 1450 (suggesting Lawrence "undermines the traditional tiers of scrutiny altogether"); Calvin Massey, The New Formalism: Requiem for Tiered Scrutiny?, 6 U. PA. J. CONST. L. 945, 946 (2004) ("[I]t is not too soon to declare that the combined effect of the methods employed by the Court in Lawrence and Grutter has done serious damage to the health of tiered scrutiny [which may be] beginning to collapse."); Sunstein, supra note 164, at 48 ("An alternative reading is that the Court deliberately refused to specify its "tier' of analysis because it was rejecting the idea of tiers altogether.").
225. 473 U.S. 432, 451 (1985) (Stevens, J., concurring) ("I have never been persuaded that these so-called "standards' adequately explain the decisional process.").
226. 411 U.S. 1, 98 (1973) (Marshall, J., dissenting).
227. See Beschle, supra note 222, at 223-33.
228. See Kathleen M. Sullivan, Post-Liberal Judging: The Roles of Categorization and Balancing, 63 U. COLO. L. REV. 293, 297 (1992).
229. Lawrence v. Texas, 539 U.S. 558, 567, 572 (2003); cf. Allen, supra note 163, at 1047- 48 (noting that, of the many moralities in the world, the Lawrence Court was concerned with religious, traditional, and ethical dictates on behavior).
230. Carter J. Dillard, Rethinking the Procreative Right, 10 YALE HUM. RTS. & DEV. L.J. 1, 19 (2007).
231. See Beschle, supra note 222, at 264; see also Robert J. Delahunty & Antonio F. Perez, Moral Communities or a Market State: The Supreme Court's Vision of the Police Power in the Age of Globalization, 42 HOUS. L. REV. 637, 694 (2005) ("Lawrence diminishes the States' ability to use criminal law to serve expressive and educative purposes, tending therefore to restrict criminal law to purely instrumental uses.").
232. Beschle, supra note 222, at 266.
233. Id. at 265.
234. Id. at 268 (noting that obedience to authority is the only "virtue" that coercion instills).
235. See 4 JOEL FEINBERG, THE MORAL LIMITS OF THE CRIMINAL LAW: HARMLESS WRONGDOING 52-53 (1988).
236. See Allen, supra note 163, at 1053-54 (calling it "intuitive" that the Lawrence Court was not declaring that any reliance on morality automatically made a statute "constitutionally infirm"); see also Delahunty & Perez, supra note 230, at 639-40 (explaining the "Central Tradition" of political philosophy, preserved in American federalism, that the State's primary and defining attribute is as a moral community).
237. See Beschle, supra note 222, at 279 (indicating that Lawrence, by such an interpretation, "makes the rational basis requirement of the Due Process Clause more than a paper tiger"); see also Lawrence v. Texas, 539 U.S. 558, 582, 584-85 (O'Connor, J., concurring) (repeatedly emphasizing that a state's interests must extend beyond simple morality).
238. See Herald, supra note 28, at 35-37.
239. Susan B. Goldberg, Morals-Based Justifications for Lawmaking: Before and After Lawrence v. Texas, 88MINN. L. REV. 1233, 1240 (2004).
240. Koppelman, supra note 166, at 1179.
241. See Allen, supra note 163, at 1066; Goldberg, supra note 238 (noting that unfettered morality justifications give legislators "virtual carte blanche"); Herald, supra note 28, at 36-37.
242. Allen, supra note 163, at 1066.
243. See discussion supra Part III.A.
244. See id.
245. See text accompanying supra note 104.
246. Note that, despite having the more restrictive ban, Texas, unlike Alabama never advanced an interest in preventing stimulation and auto-eroticism for its own sake.
247. See, e.g., Karlan, supra note 166 (suggesting the Court was not clear on level of scrutiny because its decision rested on a conclusion about equality-that class-based animosity by definition lacks a legitimate government purpose-to undergird its analysis of due process, ultimately making a decision that, "sounds in equal protection" regardless of the Court's "doctrinal handle").
248. U.S. CONST. amend. XIV, § 1.
249. Also like substantive due process, equal protection analysis has seen blurring of the review boundaries. See Beschle, supra note 222 (arguing that the Court's doctrine has evolved to eliminate the fundamental distinctions between strict, intermediate, and rational basis scrutiny, adopting a balancing test that compares the interests if the class and the state).
250. See Beschle, supra note 222 (describing categories warranting different levels of scrutiny). For explanation of strict scrutiny, see discussion supra Part IV.A.
251. See Personnell Adm'r of Mass. v. Feeney, 442 U.S. 256, 273 (1979).
252. See Craig v. Boren, 429 U.S. 190, 197 (1976).
253. See, e.g., Romer v. Evans, 517 U.S. 620, 635 (1996). Some states have found heightened scrutiny appropriate for purposes of equal protection under their state constitutions. See, e.g., Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009). For an explanation of rational basis review, see discussion supra Part IV.A.
254. See Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977); see also Feeney, 442 U.S. at 274 (adopting a twofold inquiry into (1) whether a statutory classification is facially discriminatory and, if not, (2) whether any "adverse effect reflects invidious... discrimination" but limiting the second inquiry as "an important starting point" and still requiring a showing of "purposeful discrimination"). But see Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 STAN. L. REV. 317 (1987) (critiquing the discriminatory intent standard as an impossibility on the Freudian and cognitive psychological grounds that such intent is often simultaneously both manifest and subconscious).
255. See Feeney, 442 U.S. at 256.
256. See generally Herald, supra note 28. Though distinct from equal protection with regard to homosexuals, a similar argument can be made based on research noted infra notes 264-267.
257. See Tracy E. Higgins, Democracy and Feminism, 110 HARV. L. REV. 1657, 1673 (1997) (arguing the state's focus on gender neutrality leads to inaction where intervention would best ensure equality).
258. See LEONORE WEITZMAN, THE DIVORCE REVOLUTION: THE UNEXPECTED SOCIAL AND ECONOMIC CONSEQUENCES FOR WOMEN AND CHILDREN IN AMERICA (1985) (noting that removing maternal preferences in divorce proceedings hurt women and children); Buchanan, supra note 207 (arguing that the government's reliance on the differences between men and pregnant women, inter alia, effectively "enforces traditional gender roles by binding women to reproductive consequences of heterosexual activity while excusing men").
259. See Herald, supra note 28, at 22; Lawrence, supra note 253; Michael Selmi, Proving Intentional Discrimination: The Reality of Supreme Court Rhetoric, 86 GEO. L.J. 279, 296- 324 (1997) (finding current precedent to require proving that the "only plausible conclusion" is discriminatory intent); Gila Stopler, "A Rank Usurpation of Power"-The Role of Patriarchal Religion and Culture in the Subordination of Women, 15 DUKE J. GENDER L. & POL'Y 365, 366 (2008) ("Liberalism disregards the institutions, practices, discourses, and norms of a religion or culture as a socially and politically significant site of power, which severely curtails its ability to ensure that the exercise of power and authority over the individual is justified and that the rights of the individual are safeguarded."); Waldman & Herald, supra note 206, at 287 (stating that "stereotypical thinking and cognitive biases lead to a skewed "database' that undergirds legal doctrines that disadvantage women," and that "recent advances in cognitive psychology suggest that most discriminatory behavior results from... processes that occur far beyond the reach of the conscious self").
260. Cf. Buchanan, supra note 207, at 1241 ("The legal coercion of sexual morality is typically interpreted in a way that requires the control, surveillance, and punishment of women, but rarely of men.").
261. See Waldman & Herald, supra note 206, at 305.
262. Id.
263. Cf. NANCY FRASER, UNRULY PRACTICES: POWER, DISCOURSE, AND GENDER IN CONTEMPORARY SOCIAL THEORY 26 (1989) (interpreting Foucault to say that "if power is instantiated in mundane social practices and relations, then efforts to dismantle or transform the regime must address those practices and relations").
264. See Medical Research Lacks Female Participants, MED. ETHICS ADVISOR, Aug. 1, 2004, at 91-92 (quoting a Society for Women's Health Research leader saying "[f]or a long time in medicine, we had this thing called the "male norm[:]' [i]t was just assumed that the male was "normal' and women were just small men with different plumbing and a hormone problem"); Cynthia Gorney, Designing Women: Scientists and Capitalists Dream of Finding a Drug that Could Boost Female Sexuality, There's One Little Problem..., WASH. POST, Jun. 30, 2002, at W8 (quoting a research psychologist saying psychology articles "go on and on about male sexuality, and there are all the diagnostic measures, and so on. And then they say something in two sentences, akin to: "and we assume the same thing is true for women'"); cf. Waldman & Herald, supra note 206, at 295 ("The female is defined in relation to the male, her sexuality governed by male needs.").
265. BARRY R. KOMISARUK ET AL., THE SCIENCE OF ORGASM 71 (2006); DESMOND MORRIS, THE NAKED WOMAN: A STUDY OF THE FEMALE BODY 213 (2005) (putting the number as high as two out of every three women).
266. See, e.g., BERMAN CTR., THE HEALTH BENEFITS OF SEXUAL AIDS & DEVICES: A COMPREHENSIVE STUDY OF THEIR RELATIONSHIP TO SATISFACTION AND QUALITY OF LIFE (2004), available at http://www.sexlibido.cz/LinkClick.aspx?fileticket=V2SwJSfzUsM%3D (finding the 44% of 2,594 women between eighteen and sixty years of age have used a sexual device; 20% self-stimulate at least once a week; of those, 60% use a device to do so); see also DUREX, GIVE AND RECEIVE: 2005 GLOBAL SEX SURVEY RESULTS (2005), available at http://www.data360.org/pdf/20070416064139.Global%20Sex%20Survey.pdf (finding that 43% of respondents in the United States have used a vibrator, compared to 19% of respondents that have used no sex enhancers). The author is aware of selection biases in the Durex survey; the shortcomings of the survey highlight the state of research in the field.
267. See Durex, supra note 265 (finding that vibrators "are more popular among women than men-26% compared to 19%," a comparative disparity of almost 40%).
268. Clive M. Davis et al., Characteristics of Vibrator Use Among Women, 33 J. SEX RES. 313, 316 (1996) (finding that, by age twenty, 36% of lesbian respondents had used a vibrator, compared to 11% of heterosexual women; by age thirty, 86% of lesbian respondents had used a vibrator).
269. See Williams v. Pryor (Williams I), 41 F. Supp. 2d 1257, 1261-64 (N.D. Ala. 1999). The appellant in Reliable was a corporation.
270. See discussion supra Part IV.A; Lindemann, supra note 49, at 338 ("The challengers argue predominantly not for the rights of sexually-healthy women but for those with dysfunctions that require physical therapy."); Waldman & Herald, supra note 206, at 310 ("In the medical profession,... female sexuality [is defined] as successful when it responds well to the needs of men, and as dysfunctional when it does not. In the legal arena, sadly, the most successful cases... are those where the courts can be convinced to consider the needs of these dysfunctional women....").
271. See Yakaré-Oulé Jansen, The Right to Freely Have Sex? Beyond Biology: Reproductive Rights and Sexual Self-Determination, 40 AKRON L. REV. 311, 319 (2007) (arguing that "a focus on women reduced to "suffering bodies in need of protection by the law and by the State' can frustrate more fundamental goals, such as women's need for participation and equality" (quoting Alice M. Miller, Sexuality, Violence Against Women, and Human Rights: Women Make Demands and Ladies Get Protection, 7 HEALTH & HUM. RTS.: INT'L J. 16, 25 (2004))); Lindemann, supra note 49, at 344 (noting that this is "precisely the same message that the statutes themselves sent in their discouragement of autonomous female sexuality").
272. Cf. Lindemann, supra note 49, at 337 (quoting Dr. Sandor Gardos's paraphrasing of his testimony in Sewell v. State, 233 S.E.2d 187 (Ga. 1977), as: "DA: Now Professor Doctor Gardos, you stated that these devices have therapeutic value. Is that Correct? Gardos: Yes. DA: And have you ever prescribed a device similar to this one? Gardos: Uh, no, I must admit that I have never prescribed that a patient attach a dildo to his or her chin").
273. Herald, supra note 28, at 24.
274. See id.
275. See Edward O. Laumann et al., Sexual Dysfunction in the United States: Prevalence and Predictors, 281 JAMA 537, 541 (1999).
276. See MAINES, supra note 12, at 61 (noting early studies showing rates of 60-90%); Kevin L. Billups, The Role of Mechanical Devices in Treating Female Sexual Dysfunction and Enhancing the Female Sexual Response, 20 WORLD J. UROLOGY 137, 137-41 (2002) (showing a rate of 43%). But see MAINES, supra note 12, at 63-66 (noting the clear potential to interpret the existing data in the opposite direction).
277. See SHERE HITE, THE HITE REPORT: A NATIONWIDE STUDY OF FEMALE SEXUALITY 236 (1976) ("Even the question being asked is wrong... [t]he question should not be: Why aren't women having orgasms from intercourse? But, rather: Why have we insisted women should orgasm from intercourse?"); Herald, supra note 28, at 25. Contra BERGLER & KROGER, KINSEY'S MYTH OF FEMALE SEXUALITY 48 (1954) (claiming, almost laughably, that there is no scientific or statistical objection to declaring 80-90% of the female population abnormal). Despite this, few sex specific studies have occurred. See Waldman & Herald, supra note 206, at 299 ("[T]he reasons behind women's lack of sexual responsiveness have not generated much scientific inquiry.... Rather [these statistics on "normalcy"] have been met with bland acceptance.").
278. See, e.g., Shelly Elimelekh, Note, The Constitutional Validity of Circuit Court Opinions Limiting the American Right to Sexual Privacy, 24 CARDOZO ARTS & ENT. L.J. 261, 287 (2006) (suggesting that "it is difficult to demarcate the difference between sex toys and sex drugs, yet the government has clearly drawn this distinction"); cf. Sarah E. Bycott, Controversy Aroused: North Carolina Mandates Insurance Coverage of Contraceptives in the Wake of Viagra, 79 N.C. L. REV. 779. 797 (2001) (discussing the distinction between Viagra as "medically necessary," versus contraceptives as "life-enhancing").
279. See, e.g., Virginia Postrel, Sex Mandates, FORBES, May 31, 1999, at 121 (quoting a Reverend's characterization of mandatory contraceptive coverage as "disgusting and demoralizing," whereas Viagra "enhances a natural function").
280. See, e.g., Elimelekh, supra note 277, at 287-88.
281. See, e.g., Buchanan, supra note 207, at 1248-49.
282. See supra notes 258-261 and accompanying text.
283. Buchanan, supra note 207, at 1250.
284. See discussion infra Part IV.C.
285. See discussion supra Part III.
286. See State v. Hughes, 792 P.2d 1023, 1031 (Kan. 1990) (listing Miller-protected objects as "book[s], movie[s], or play[s], rather than a device"). But see Bret Boyce, Obscenity and Community Standards, 33 YALE J. INT'L L. 299, 339-45 (2008) (criticizing the Court's speech/conduct distinction).
287. See PHE, Inc. v. State, 877 So. 2d 1244, 1249-50 (Miss. 2004) (citing United States v. O'Brien, 391 U.S. 367 (1968)).
288. The claim in this Comment is not that there are no "pornographic" outlets for women and sexual minorities. When it comes to pornography, the tail is long indeed. See Tom Chivers, "Rule 34," Internet Rules and Laws: The Top 10 from Godwin to Poe, THE TELEGRAPH, Oct. 23, 2009, http://www.telegraph.co.uk/technology/news/6408927/Internet rules-and-laws-the-top-10-from-Godwin-to-Poe.html; Wikipedia, 34 (Number): In Other Fields-Rule 34, http://en.wikipedia.org/wiki/34_(number)#In_other_fields (last visited
289. Tristan Taormino, Dallas Dildo Defiance, VILLAGE VOICE, Feb. 17, 2002, available at http://www.villagevoice.com/issues/0221/taormino.php.
290. See discussion infra Part IV.C (discussing potential First Amendment protections of sexual expression).
291. Reliable Consultants, Inc. v. Earle, 517 F.3d 738, 747 (5th Cir. 2008) (noting that addressing the First Amendment implications of Lawrence for this issue would be premature).
292. See, e.g., Herald, supra note 28, at 34 ("[T]hat same stigma is present here.").
293. See Lawrence v. Texas, 539 U.S. 558, 581-82 (2003).
294. See Waldman & Herald, supra note 206, at 303 (characterizing the state of relevant scientific study as "inaccurate or incomplete").
295. See Franke, supra note 217, at 1415-18 (warning of the compartmentalizing nature of judicial solutions and comparing the restrictive effect of Lawrence on the efforts of homosexual rights activists to the effect of Brown on the "black civil rights movement"); Susana T. Fried & Ilana Landsberg-Lewis, Sexual Rights: From Concept to Strategy, in 3 WOMEN AND INTERNATIONAL HUMAN RIGHTS LAW 114, 114 (Kelly D. Askin & Dorean Koenig eds., 2001) (calling to "sustain the fluidity of the concept and its ability to include an ever-growing understanding of the range of experiences... to expand the boundaries of what sexual rights mean, rather than limiting its application and meaning with overdefinition"); Jansen, supra note 270, at 334 (noting the "risk of excluding" that would fatally limit a declaration of sexual rights).
296. See Case, supra note 165, at 79-81 (recalling, in this "Kulturkampf," that Clinton's modest achievements for homosexuals in the military were followed by more involuntary discharges than ever; Boulder's antidiscrimination ordinance led to Amendment 2; the Hawaii Supreme Court's same-sex marriage decision led to the Defense of Marriage Act and a Hawaiian constitutional amendment; and that "Lawrence itself seems to have sparked intensified interest in a federal constitutional amendment on same-sex marriage and a sharp decline in support in the polls for gay rights;" not to mention the experience in Britain, which the Lawrence majority cited as a shining example, of "more virulent prosecution of public homosexual acts" coupled with "a very narrow definition of what was "private' and hence not criminal").
297. See Williams v. Att'y Gen. of Ala. (Williams IV), 378 F.3d 1232, 1244 n.14 (11th Cir. 2004). Critics may argue that statutes like the one at issue in Lawrence were rare as well. However, that fails to account for the foregoing arguments distinguishing the unconstitutionality of anti-sodomy laws and the constitutionality of these statutes.
298. Cf. MAINES, supra note 12, at 66 (indicating, ironically, that legalizing vibrators actually enforces the androcentric view because it relieves men of responsibility for stimulating the clitoris).
299. See Kandyba, supra note 129.
300. This Section focuses on Lawrence's potentially instructive impact on the First Amendment's protection of speech and expression. Scholars have argued that statutes such as the one in question may also violate the Establishment Clause of the First Amendment. Cf. Edward L. Rubin, Sex, Politics, and Morality, 47 WM. & MARY L. REV. 1 (2005). Such an argument is beyond the scope of this Comment.
301. See James Allon Garland, Breaking the Enigma Code: Why the Law Has Failed to Recognize Sex as Expressive Conduct Under the First Amendment, and Why Sex Between Men Proves that It Should, 12 LAW & SEXUALITY 159, 164 n.27, 195-203 (2003) (summarizing the scholarship and the law prior to Lawrence).
302. See Allen, supra note 163, at 1062 ("Lawrence has significantly undermined the very foundation upon which the Court has built the obscenity doctrine... [and so] requires a reevaluation of the doctrine."); James Allon Garland, Sex as a Form of Gender and Expression After Lawrence v. Texas, 15 COLUM. J. GENDER & L. 297, 299 (2006) (describing the Lawrence decision as "not only a potential doctrinal watershed, [but also] utterly touching"). Contra Elizabeth Harmer Dionne, Pornography, Morality, and Harm: Why Miller Should Survive Lawrence, 15 GEO.MASON L. REV. 611 (2008).
303. See Griswold v. Connecticut, 381 U.S. 479, 481-84 (1965) (referencing the "emanations" from "penumbras" of several Amendments in the Bill of Rights).
304. See Garland, supra note 297, at 297 (calling Lawrence the Court's first opinion not only to recognize same-sex intimacy but also to approve of sex without any reference to procreation).
305. See id. at 301 (quoting Stanley v. Georgia, 394 U.S. 557, 565 (1969)).
306. See Stanley, 394 U.S. at 564-65; Garland, supra note 301, at 302 ("The Court concluded that governmental intrusion "into the contents of his library' (of porn) endangered not only his thoughts but his "emotions and sensations' and, thus, his right to "satisfy his intellectual and emotional needs' (for porn).") (citations omitted).
307. See Garland, supra note 301, at 302 (noting that in other contexts, for example flag burning, claims that expressive conduct is "offensive" have been declared unconstitutional attempts to monopolize ideas).
308. Id. at 303.
309. See Lawrence v. Texas, 539 U.S. 588, 574, 577-78 (2003).
310. See generally Garland, supra note 301.
311. Roth v. United States, 354 U.S. 476, 487 (1957).
312. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 63 (1973).
313. Lawrence, 539 U.S. at 567.
314. See Garland, supra note 301, at 304.
315. 530 U.S. 640 (2000).
316. Lawrence, 539 U.S. at 574 (quoting Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851 (1992)).
317. Garland, supra note 301, at 298 (citing, inter alia, Dale, 530 U.S. at 648, 656).
318. Id. at 305; City of Erie v. Pap's A.M., 529 U.S. 277, 283, 289 (2000) (plurality) (holding that despite bans on nudity as a summary offense, nude dancing is still entitled to First Amendment protection); Barnes v. Glen Theatre, Inc., 501 U.S. 560, 563-66 (1991) (finding that a misdemeanor offense is still entitled to First Amendment protection).
319. See John M. Finnis, Law, Morality, and "Sexual Orientation", 69 NOTRE DAME L. REV. 1049 (1994).
320. Garland, supra note 301, at 298.
321. Id. at 316-17 ("[S]cientific evidence shows that overwhelming majorities of Americans engage in sex to express love and to feel loved in return. By no means does this indicate that sex for pleasure... lacks expression. Sexual contact can show an understanding of a partner's needs or appreciation of a part of the body. Group sex can celebrate the rejection of social mores, and even autonomous sex can have educational and other creativity values." (citations omitted)).
322. See Spence v. Washington, 418 U.S. 405, 410-11 (1974).
323. Id. at 410.
324. Garland, supra note 301, at 298 (citing Hurley v. Irish-Am. Gay, Lesbian & Bisexual Group of Bost., 515 U.S. 557, 569 (1995)).
325. See Allen, supra note 163, at 1063-64 (arguing that localities would often easily be able to meet such a standard, citing protection of minors as justification for child pornography prohibitions and zoning of adult businesses).
326. See Garland, supra note 301, at 317-18. This Comment does not contend that either sodomy or sex toys are, in fact, unpopular.
327. Cf. United States v. Extreme Assocs., 431 F.3d 150, 155-56 (3d Cir. 2005) (reversing a district court's finding that Lawrence eliminated morality as a justification for obscenity laws because of the doctrine that inferior courts may not determine that a directly applicable Supreme Court precedent has been undermined by a later decision of the Court).
328. Waldman & Herald, supra note 206, at 307-08.
329. See Mary Anne Case, Of Richard Epstein and Other Radical Feminists, 18 HARV. J.L. & PUB. POL'Y 369, 372 n.9 (1995) ("While Occam's razor requires that of two competing explanations the simplest be selected, Occam's dildo predicts that the most titillating of the two explanations will be preferred.").