Is There A Constitutional Right to Sexual Privacy?
Finding None, a Federal Appeals Court Upholds Alabama's Sex Toy Prohibition

By MICHAEL C. DORF

Wednesday, Aug. 04, 2004

Last week, in Williams v. Attorney General of Alabama, a federal appeals court upheld an Alabama law that makes it a crime to sell or advertise sex toys. Although at some level the case--like the statute it sustains--is profoundly silly, it also raises some surprisingly deep issues.

At stake in the Williams case was nothing less than the proper role of courts in defining the scope of constitutional rights in the United States. To be sure, Patrick Henry never said "give me dildos or give me death," but he did speak of liberty, as does the Constitution. And not surprisingly, how the courts go about defining that "liberty" has ramifications far beyond the legality of vibrator sales in Mobile.

The History of the Case: A Sex-Toy Ban in Alabama

In 1998 the Alabama legislature enacted the Anti-Obscenity Enforcement Act, which (among other things) prohibits the sale or barter of "any device designed or marketed as useful primarily for the stimulation of human genital organs." This being America, within a month, the American Civil Liberties Union brought a lawsuit in federal court to enjoin the law's enforcement.

Joining in the ACLU's lawsuit were purveyors of sex toys, who successfully argued to the district judge that the law was irrational. After all, the statute did not actually prevent Alabamans from obtaining sex toys (which they could obtain by traveling to neighboring states or from anyone willing to give them away). Nor did it prohibit the commercial sale of other items used for sexual gratification, such as ribbed condoms or vibrators that were primarily intended to relieve muscle tension but could also be adapted for sexual purposes. Given these giant loopholes, the judge struck the law down as serving no rational purpose.

But in 2001, the federal appeals court reversed that ruling. Citing well-established constitutional jurisprudence, the appeals court said that a law should not be invalidated as irrational simply because it does not perfectly achieve its objectives.

The appeals court remanded the case to the district court, which again ruled for the plaintiffs, but on a different ground. This time, the district court held that the right to sexual privacy is "fundamental." It therefore reasoned that a law like Alabama's, which infringes on sexual privacy, could only be upheld if it was strictly necessary to serve a very important government interest. The district court then sensibly found that even if an exception-ridden sex toy sales ban is minimally rational, it's not such a vital law that it warrants overriding a fundamental constitutional right.

There matters stood until last week, when the federal appeals court once again reversed the federal district court. There is no recognized fundamental right to sexual privacy, the appeals court said. Hence, the law only need be minimally rational after all. And, the court noted, it had already concluded that the sex toy ban rationally serves the state's interest in public morals during the first round of appellate review. Accordingly, the court concluded for a second time, though for different reasons, that the law is constitutionally valid.

What is a Fundamental Right? How the Courts Answer That Question

The practical significance of the appeals court's latest ruling is that a small number of Alabama stores may go out of business, and Alabamans will have to jump through some additional hoops to obtain their sex toys--or even go without. But putting its prurient interest aside, the case is probably more important for what it says about the abstract question of how to interpret the Constitution.

The text of the Constitution does not use the terms "rational basis" or "fundamental rights." So where do these legal categories come from and what is their significance? To answer these questions, we need to look at what the Constitution does say.

To begin, the Fourteenth Amendment prohibits any state from making or enforcing "any law which shall abridge the privileges or immunities of citizens of the United States." What are those "privileges or immunities?"

A good place to start looking would be the Bill of Rights, which sets forth familiar protections for speech and religion, against unreasonable searches and seizures, against cruel and unusual punishment, and so forth. Certainly, if anything in the Constitution counts as "privileges or immunities," it should be these familiar liberties.

But the Bill of Rights, the Constitution itself warns, is not an exhaustive list of constitutional protections. To the contrary, the Ninth Amendment states that "the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

So it would seem that when our courts are asked to invalidate a state or federal law on the ground that it violates constitutional rights, they must engage in a two-part inquiry: First, they must ask whether the law violates any specifically enumerated right - that is, any right spelled out in the Bill of Rights or elsewhere in the Constitution. Second, they must ask whether the law violates one of the unenumerated rights to which the Ninth and Fourteenth Amendments allude, but whose content they do not specify.

And in fact, that is more or less what the courts do, but not so straightforwardly. Through a series of questionable decisions, the Supreme Court long ago concluded that the Ninth Amendment and (especially) the Privileges or Immunities Clause of the Fourteenth Amendment don't quite mean what they appear to say. But meanwhile, through a different series of questionable decisions, the Court has also concluded that another provision of the Constitution--which appears to be less relevant--does justify the conclusion that the courts should enforce unenumerated as well as enumerated constitutional rights.

The Crucial Constitutional Concept of "Substantive Due Process"

Which provision is that? It turns out that the Court relies, for the unenumerated rights concept, on the clause of the Fourteenth Amendment that prohibits the states from depriving "any person of life, liberty, or property, without due process of law."

This language would seem to suggest that if a state provides adequate procedures, it can deprive people of life, liberty or property. But the Court has also said that laws which in their substance go too far in infringing liberty, thereby violate the Due Process Clause.

The idea is that some deprivations are so serious, no amount of process is sufficient. Ironically, the deprivation of life is not one of them as the Court has not struck down the death penalty, nor even subjected it to exacting judicial scrutiny. But certain deprivations of liberty are on the Court's list. These deprivations, the Justices have reasoned, are prohibited by the due process clause, under the doctrine of "substantive due process."

How do courts figure out whether a law goes too far in infringing liberty? Rather than make an ad hoc judgment in each case, they designate a relatively small number of human activities as those to which we have "fundamental rights," and they then demand that laws infringing these fundamental rights be the "least restrictive means" of furthering a "compelling interest." This test is sometimes called "strict scrutiny."

Laws that do not infringe fundamental rights, in contrast, do not have to pass strict scrutiny. They need only be minimally rational.

The effect of the doctrine is to restrict the world of strict scrutiny to the enumerated rights and the small category of unenumerated fundamental rights. By taking this approach, courts avoid having to second-guess legislatures on virtually all laws. After all, nearly every law restricts somebody's liberty in some way. But because the category of fundamental rights is very limited and the list of enumerated rights is fairly short, most laws are only subject to the deferential rational basis test.

How Do Courts Decide What Rights Are Fundamental?

How do the courts know which unenumerated rights, exactly, are fundamental? One might think that because these rights are not enumerated in the Constitution, that document's text is unhelpful. But that is far from true. The Supreme Court has long looked to the enumerated rights for guidance in defining unenumerated rights.

For example, the courts have extrapolated a general right of expressive association from the right of speech and the right to assemble for the purpose of petitioning the government in the First Amendment. The right to assemble together for political purposes and to speak as an individual, the Supreme Court reasoned, together imply a broader right to associate with others for expressive purposes.

Likewise, in its landmark 1965 ruling in Griswold v. Connecticut, the Court found a right of married couples to use contraception. Certainly, this right isn't spelled out in the Constitution. So where did it come from? According to the Court, it was based on a zone of privacy that the Justices constructed from provisions of the Bill of Rights such as the Fourth Amendment prohibition on unreasonable searches and seizures, and the Fifth Amendment right against compelled testimony.

The courts have also looked to the logical implications and extensions of their prior precedents in deciding whether a right is fundamental. Thus, the abortion right recognized in Roe v. Wade built upon Griswold and earlier cases that the Justices said had, even before Roe, already made the decision whether to become a parent a fundamental right.

Alongside this process of extrapolation and analogy-drawing, the Court has articulated a couple of verbal formulae to designate whether a right is fundamental. The Court may look to whether the purported fundamental right is deeply rooted in American history and tradition; and it may also look to whether the purported fundamental right is implicit in the concept of ordered liberty.

At least in recent years, the Supreme Court has been very reluctant to recognize new unenumerated rights under these formulae. However, it has sometimes ruled for plaintiffs who claimed merely to be asserting new applications of old unenumerated rights.

The Level of Generality Problem: How Broadly Should a Right be Phrased?

Bedeveling the fundamental rights issue is what might be called the generality problem: At what level of generality should a court frame a claimed right? The choice matters greatly.

Suppose, for instance, that prospective adoptive parents are rejected by their state child welfare agency on the ground that they were both previously convicted of embezzlement. The couple says they've served their time, learned their lesson, and now they are qualified to provide a loving home for a child who needs one.

Is their proffered "right to adopt" the sort of brand new right that the court will likely reject? Or is it merely a new application of an old fundamental right--the right to become a parent?

The answer makes a profound difference because of the nature of the inquiry that follows: Remember, only deprivations of a fundamental right - not deprivations of any aspect of "liberty" - trigger strict scrutiny. Moreover, whether strict scrutiny is applied makes a great deal of difference. If it does not, the government's justification for infringing a given right will almost certainly be upheld as at least minimally rational.

It's Up to the Courts Whether to Read Prior Rights Broadly or Narrowly

For a court intent on denying the fundamentality of a claimed right, it is always possible to read the prior cases narrowly -- and to define the newly claimed right so narrowly that it looks ridiculous.

For example, consider the 1986 Supreme Court decision in Bowers v. Hardwick. There, the 5-4 majority defined the right claimed as merely (and narrowly) a right to "homosexual sodomy." Last year, when the Court decided Lawrence v. Texas, and overruled Hardwick, it did so in part because it rejected that characterization as "demeaning."

Conversely, it is also possible to define a right so broadly that the court will be obliged to reject it for fear of a parade of horribles. The Supreme Court has taken this tack too when it wanted to deny a right.

For example, in the 1997 case of Washington v. Glucksberg, the plaintiffs sought recognition for the right "of competent, terminally ill adults to make end-of-life decisions free of undue government interference" - a characterization which sounds like a suitably small extension of prior precedent accepting a right to refuse medical treatment. But the Court reformulated the issue as the much broader question of whether to recognize "a right to commit suicide which itself includes a right to assistance in doing so." Not surprisingly, it then rejected that right.

The "Sex Toys" Case: Interpreting the Right at Issue To Make It Seem Absurd

The appeals court in Williams, the Alabama sex toy case, appeared to rely on both of these framing techniques.

In its quotation of the district court opinion, the appeals court suggested that the case posed the question whether there is an absurdly narrow (and vulgar) fundamental right to use "vibrators, dildos, anal beads, and artificial vaginas." It is not difficult to imagine what the court would have said had it faced that question squarely.

The appeals court in Williams also raised the spectre of a parade of horribles under the broader formulation. It noted that the U.S. Supreme Court has never recognized a general right of sexual privacy in so many words (although the dissent disagreed with the majority's characterization of the Lawrence opinion on this point). And then the appeals court majority opined that such a right should be rejected because (among other reasons) it would encompass pederasty, prostitution and incest -- which the judges believed were clearly proscribable consistent with the Constitution.

The Goldilocks Solution: The Level of Generality That Makes a Right "Just Right"

If some formulations of an asserted right are too narrow, and others are too broad, is there a formulation that satisfies the Goldilocks condition: one that is "just right?"

The answer is yes, sometimes there is--and probably there was in Williams, though the appeals court rejected it.

At the end of the day, both the majority and the dissent in Williams agreed that the proper level of generality at which to formulate the claim was as a right of sexual privacy. They just disagreed over whether to recognize that right.

Invoking the Supreme Court's Lawrence decision, dissenting Judge Barkett argued that the majority's parade of horribles did not follow from recognizing a right to sexual privacy. That right, Judge Barkett emphasized, need not be extended to cases involving minors, or other cases (such as adult incest) where consent may not easily be refused. The majority, by contrast, did not find these distinctions persuasive, and thought they were not compelled by Lawrence.

The Dilemma: What If There is No "Goldilocks" Just-Right Solution?

Even though the "Goldilocks condition" was satisfied in Williams, it will not always be in every case.

For example, consider a case that raises this question: Should an asserted right to clone oneself be understood as a new right, or as an example of the familiar right to become a parent?

Or a case that raises this issue: Is a claimed right to use encryption technologies a new right, or an example of the familiar (enumerated) right to freedom of speech?

Questions like these do not answer themselves, of course. Reasonable minds will differ about the best characterization of the right asserted in such cases. And for this very reason, some people argue that the courts should simply defer to the legislature in such matters.

That's a plausible position, but it runs away from the most natural reading of the Privileges or Immunities Clause and the Ninth Amendment--which plainly seem to put the courts in the business of identifying unenumerated rights. And because the Supreme Court has long accepted this responsibility, albeit under the Due Process Clause, that means that judges must squarely face the generality problem when they decide which rights are fundamental.

That difficult task requires reason, judgment and humility. Merely observing that the Constitution's text nowhere mentions anal beads or artificial vaginas is both true and amusing. But it doesn't help answer the real question in a case like Williams.


Michael C. Dorf is the Michael I. Sovern Professor of Law at Columbia University in New York City. His book Constitutional Law Stories tells the stories behind fifteen leading constitutional cases.

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