compel SCOTUS to hear a future challenge.
Constitutional considerations if SCOTUS grants certiorari:
Did Lawrence recognize a fundamental right to total sexual autonomy, including private sexual activities between consenting adults, such as the use of sex toys? Or does Lawrence merely recognize a liberty interest?
If there is a fundamental right, then a court must apply a strict scrutiny standard to any law that infringes on this fundamental right. Under a strict scrutiny standard, it is doubtful that a state’s interest in public morals would be sufficient to sustain a law infringing on a fundamental right to sexual privacy and autonomy. It is also doubtful that the Alabama ban would be strictly tailored enough to survive strict scrutiny review.
If NOT, then a court may apply a rational basis standard of review. Under a rational-basis standard, a ban on commercial promotion of sex toys needs only be rationally related to a legitimate state interest. In this case, the courts would have to consider whether or not the law at issue is rationally related to maintenance of public morals and whether or not the State has a legitimate interest in banning all commercial promotion? Some commercial promotion? Is there an interest in banning promotion and sales, but not use or ownership?
For example, at the district court level in Alabama, the court considered three possible reasons for banning the sexual devices: banning the public display of obscene material, banning the commerce of sexual stimulation unrelated to marriage, procreation or family relationships and banning the commerce of obscene material. All three were found to be legitimate state interests, but the court did not agree with the state that the law in question actually advanced any of those interests. If the Supreme Court applied similar reasoning, all similar laws could be struck.
Local Wisconsin Ordinances
While these state laws may be overturned or eventually changed by state legislatures, there are still myriad local ordinances that restrict the sale of these products in a variety of ways. For example, this zoning ordinance from Glendale, WI:
It is declared to be the purpose and intent of this Article to protect the public health,
safety, welfare and morals of the community, to promote the stability of property values
and impose restrictions upon those activities which pander to gross sexuality in a
manner that would detract from the neighborhood, adversely affect the property values,
increase crime and violence and be repugnant to the morals of the community. In
recognition of the protections afforded to the citizens under the First and Fourteenth
Amendments, it is not the intent of this Article to inhibit freedom of speech or the press,
but rather to deter those of low morals from imposing their lack of morals upon the rest
of the community, and further recognizing that those parts of a community which
become centers of loose moral conduct frequently become places of rowdiness,
criminality and indecent behavior. It is further the belief that, just as advertising is
designed to stimulate one's appetite for desiring goods or a service, an overabundance
of and preoccupation with sexual displays or material arouses the appetites of those so
preoccupied and encourages violations of the criminal statutes involving sexual
offenses and is contrary to the health, safety and welfare of the community.