The Lincoln Plawg

Monday, October 14, 2002 05:11 a.m.

The Alabama Dildo Law case (no kidding!)

If, a dozen years ago, a Hollywood producer had proposed to make a movie with the same plot, the entire Cotton State, from the Governor down, would no doubt have railed against crude and outdated stereotyping!

I'm a little hazy on the back-story: suffice it to say that in 1998, the good legislators of Alabama decided (under what influence or urgent need I know not) to criminalise the distribution of

any device designed or marketed as useful primarily for the stimulation of human genital organs.

Now, be it history or legend, we are supposed to believe that the Flower of Southern Womenhood did not concern itself with such organs except as strictly necessary for procreation: suggestions to the contrary resulting in demands for satisfaction of an altogether different kind!

That (if ever) was then. Several 'petals' (and their suppliers) decided that the Dildo Law had infringed their constitutional rights; and the October 10 decision of Federal District Court Judge C Lynwood Smith in Williams v Pryor, on remand from the 11th Circuit, grants them summary judgement.

The opinion has a number of points of interest.

In order to arrive at its conclusion, the court had apparently (this is no expert analysis!) to decide that there was a
fundamental right to sexual privacy
which the Dildo Law had violated (p27). As a first step, the plaintiffs had to demonstrate that the right was
objectively deeply rooted in this Nation's history and tradition.
As a result, we are treated to a fascinating examination of the history of American sex law from the Colonial period onwards (pp34-59); even in periods of supposed 'puritanism' - in 17th century New England (p34), or during the period of the Comstock Laws (enacted 1873-1915) (p44), the marital bedchamber was almost always off-limits to the law as applied (whatever statutes might be on the books). The 20th century extended that rule to extra-marital adult sexual activity.
The judge then goes on to find that the Dildo law impermissibly burdens this fundamental right to sexual privacy (p65) (despite the fact that the law does not criminalise mere possession); that no sufficiently compelling state interest existed to justify the burden (p71); and that, even if such an interest existed, the Dildo Law was not 'narrowly tailored' to meet it (p80).
To a layman, it appears that the history lesson was only necessary because this was the first case in which a broad right to adult sexual privacy was being asserted. (A similar exercise was undertaken in Washington v Glucksberg in denying the existence of a fundamental right to physician-assisted suicide.)
Implications? Take pornography: the court's reasoning was that banning the sale of 'devices' was ipso facto an infringement on the right to possess them (p64):
...a ban on the sale of [the] devices can amount to an impermissible burden on their use.
Whereas, in relation to porn, whilst possession (at home, at least) is protected (Stanley v Georgia), sale is not.
In the sex law history, not to be missed is the section on 'electromechnical vibrators' (p42). These devices, invented, it says, in the 1880s by a British physician (pause for patriotic swelling of chest!), were not first intended for domestic use, but as an aid to the medical profession:
Massage to orgasm of female patients was a staple of medical practice among some...Western physicians from the time of Hippocrates until the 1920s, and mechanizing this task significantly increased the number of patients a doctor could treat in a working day...
That the first Golden Age of such devices should coincide (more or less) with that of Comstockery is a fact worthy, perhaps, of further investigation.
I'd be fascinated to know what the etiquette was for such sessions, both pre- and post-mechanisation, Surely everyone knew what was really going on? The women would get a cheap thrill, a handsome young doctor some welcome fees - and no chance of 'accidents'!

[The case doesn't seem to have been a triumph for the Alabama Attorney-General's office - first, his filings were apparently deficient (p67); and then it's discovered (p77) that the state's own University Health System website has a page which recommends use of a vibrator by spinal-cord injured men to enable them to ejaculate!

He won't be appealing, will he?]

[Link via Instapundit and Howard Bashman)