Alabama's Bad Vibrations

Reader as2941 points us to this vital act of illiberation in the, coff, Deep South:

Federal Court OKs Ban on Sale of Sex Toys

Those of you familiar with this story--either firsthand or through the papers--know that an Alabama ban on sex toys had been overturned by the courts. Now a federal judge has reversed that decision, making an Alabama Getaway even less enjoyable than it needs to be.

"If the people of Alabama in time decide that a prohibition on sex toys is misguided, or ineffective, or just plain silly, they can repeal the law and be finished with the matter," the court said.

"On the other hand, if we today craft a new fundamental right by which to invalidate the law, we would be bound to give that right full force and effect in all future cases including, for example, those involving adult incest, prostitution, obscenity, and the like."

One more reason to move to Mississippi.

Whole story here.

Comments

[Corsair09]

"Further proof that Alabama is the Anus of America!"

Apparently you've never been to Gary, Indiana. If the Country needs a high colonic, THAT is where they will insert the tip..

[Mark S.]

Fine. I'm a moron because make a couple fucking spelling mistakes.

Fine. I'm a bigot because I have the audacity to point out that there exists a sizable group of religious bigots, living largely in the South, who want to tell us how to live our lives in the name of their nonexistent "God."

I don't care.

If I show nothing but contempt for these Christian scumbags, or make glib comments on the Southerners who aid and tolerate this nonsense, it is only because they pose a clear and present threat to our civil liberties. Neither this cracker judge, nor the entire state of Alabama, has any business telling ANYONE whether or not someone can sell a vibrator, cock ring, or a blow-up doll. If you don't like sex toys, SHUT UP AND DON'T FUCKING BUY THEM, WINGNUT!

Politics is a war and "civility" has no place in war, especially towards the evi assholes--yes Hannah, our opponents are evil no matter how sincere they are--who want to take our freedoms away.

[Mark S.]

"towards the evi assholes"

AAAAAAAARRRRRGGGGHHHH!!! Evil! EVIL. E-V-I-L! Are you happy???

[JJB]

Ditto what Mark S. just said.

[hilly]

Hail, Mark S., the one true righteous man and holy warrior who shall save us all from our enemies!

-- which is whoever he deems them to be.

[Mark S.]

"Fine. I'm a moron because make a couple,,,"

Oh, the hell with it, I just can't win. 🙁

[Mark S.]

"Hail, Mark S., the one true righteous man and holy warrior who shall save us all from our enemies!"

I've heard this before: "I'm not the bigot! YOU'RE the bigot for calling me a bigot!"

Trust a right-winger to use pretzel logic.

[hilly]

Maybe you've heard it before because it's spot on, internet genius.

Wow, a peerless discernment of political persuasion in just three posts. You should stand in for O'Reilly.

And, hey, good job on using the spell-checker this time around.

[Gary Gunnels]

How many states have laws which ban the sale of sex toys? I can think of two - Texas and Alabama - parts of the Bible Belt in other words.

[Mark S.]

"Maybe you've heard it before because it's spot on, internet genius."

Well, by that rationale, I guess that civil rights activists in the 1950s and 60s were the real racists because they had the gall to object to the Klan lynching their black neighbors.

Did European Jews bring the Holocaust on themselves by being so bigoted toward the Germans?

[c]

I have to admit that I'm surprised it took 38 posts before we heard about Jews and the Holocaust. That's gotta be some kind of records around here, no?

[hilly]

"Politics is a war and "civility" has no place in war"

"My point is that most people in the US are stinking homophobes, putting a monument with the 10 Commandments on public property is a violation of the establishment clause, and evolution is fact no matter what the knuckle-dragging Jesus-freaks think."

Saying the above and comparing yourself to either the Jews or a civil rights marcher is risible. In rhetoric, you sound much much more like either a SA recruit or a Southern sheriff from Central Casting, whatever your stance on anything.

Try another tack, amateur.

[Mark S.]

"I have to admit that I'm surprised it took 38 posts before we heard about Jews and the Holocaust. That's gotta be some kind of records around here, no?"

Don't pull that "Goodwin's Law" crap on me. It's a perfectly viable argument. If you can excuse one form on bigotry on the grounds that challenging it is in itself "bigoted," you can excuse them all.

[Mark S.]

"Saying the above and comparing yourself to either the Jews or a civil rights marcher is risible. In rhetoric, you sound much much more like either a SA recruit or a Southern sheriff from Central Casting, whatever your stance on anything."

Oh, I'm sorry. I forgot that I stepped into a mirror universe where up is down, right is left, and standing up against the political antics of the Christian Right is a form of bigotry.

[SR]

"On the other hand, if we today craft a new fundamental right by which to invalidate the law, we would be bound to give that right full force and effect in all future cases including, for example, those involving adult incest, prostitution, obscenity, and the like."

So the court can't strike down this stupid law because then it might have to strike down other stupid laws? Good argument.

[Mr. Nice Guy]

Can we please get back to our intercourse on dildos, vibrators, cockrings, KY jelly, etc?

I think Alabama is trying to make a point that they don't need no stink'n "marital aids", since their men are so great in bed. I myself have convinced past and present girlfriends that nothing beats the real thing. Not even close. Nope. No, m'am.

[Mark S.]

"Can we please get back to our intercourse on dildos, vibrators, cockrings, KY jelly, etc?"

I'd really like to, but that would be bigoted toward the Fundies.

[hilly]

Mark, you're not a bigot, really. You're just an insanely enraged, poor-spelling, self-righteous zealot who accuses most everyone in the U.S. of being knuckle-dragging homophobes and admits to living in his own "mirror universe," as it were.

Who wouldn't be stirred by your words and follow you onwards to Sherman's March 2: A Dildo's Revenge?

[Jennifer]

This has to be one of the most hilarious examples of P.C. I've ever seen--it's intolerant to make fun of a state for being filled with Bible-bashing sex-fearing freaks!

Reminds me of when South Carolina kept the Confederate flag on its own state flag and then claimed to be 'victimized' by the ensuing NAACP boycott.

[Mark S.]

"As much as we all support obscene, incestuous prostitution involving sex toys, the issue at hand is whether folks have a constitutional right to them."

c:

When last I checked, the Bill of Rights states pretty clearly that we can't make a law "respecting an establishment of religion, or prohibiting the free exercise thereof..." Unless you have information stating otherwise, it's a certainty they banned sex toys for religious reasons. In that case, I say the law is unconstitutional.

[Soda]

As much as we all support obscene, incestuous prostitution involving sex toys, the issue at hand is whether folks have a constitutional right to them. I'd have to agree with the court that this is a matter for the legislature.

Scalia would probably agree with you. As someone that sometimes agrees with Scalia this is where I part ways with him.

If the constitution explicitly prohibited or explicitly allowed victimless acts like selling sex toys, prostitution, and gay marriage then things would be clear for all of us. There would be no debate for or against.

However, if the constitution does not mention something it seems that you have to resort to some default position. Scalia's default position for most of these matters is "you don't have a constitutional right to do x". My default position is exactly the opposite: "you have a constitutional right to do x unless otherwise specified by the constitution."

I didn't study law so I may be full or it.

[hilly]

Frankly, it's a stupid law and a embarassing judgment, but I think the First Amendment does not necessarily hold here.

I certainly believe that the ban was motivated by "moral" and possibly "religious" reasons (though I'd be hard-pressed to think offhand of a religion that discussed sexual devices to any extent), but was Alambama or any other governing body establishing a church or religion? Or prohibiting the exercise thereof?

I think it's fallacious to assume that because someone is motivated to do something for religous reasons, it then falls under the aegis of the First Amendment.

[kevrob]

I think Goodwin's Law refers to how angry Nero Wolfe gets when he sees the police detective get out of a chair without using his hands. - Kevin McGehee, found @

http://vodkapundit.com/archives/006265.php

Seriously, while I think that the several states have no business passing laws limiting what consenting adults may place in or near the orifices of their choice, be that an alcoholic beverage or molded latex, that expansive a reading of the Ninth Amendment, trumping the Tenth, is still a minority position. That there doesn't seem to be any underlying principle governing when privacy is invoked, or when the "police power" dominates bothers me. I'd suggest that when one crosses the line between voluntary participation and enters the area where any such activity affects other people, the state can mediate disputes in civil court, or even have criminal sanctions.

Having spent a small amount of time in the South*, I have found that reticence to restrict "immoral" behavior is not always a value there.

Kevin

*OK, half a year on the Florida Gulf Coast. Discounting for retirees from Up Nawth, the natives had a surprisingly high percentage of anuses with kindling inserted. Yet, I did notice titty bars and porno theatres advertising in the Tampa and St. Pete papers.

[c]

The non-use of sex toys is not a religious practice. Just because a secular law might correspond to a religious law doesn't mean it needs to be thrown out. Think about murder -- the fact that it's prohibited by religious law doesn't mean that the US is not allowed to outlaw it. (Now if you argued that your religion required the use of a sex toy, then you might have a case.)

Soda, I too would prefer there not be laws against victimless crimes, but opposing a law against something is not the same as asserting a constitutional right to it. You certainly do not "have a constitutional right to do x unless otherwise specified by the constitution" because the constitution proscribes no actions whatsoever. Nothing in the constitution outlaws rape or theft, and I know you're not asserting a constitutional right to either of these things.

[Mark S.]

Soda:

Excellent point, however there is one cavaet: The 10th Amendment. The state-righters would come back to you and say, "Well, if the Constitution doesn't say anything on sex toys, then it's up to states and if they want to ban them, then it's OK."

It's the reason why I think the 1st Amendment objection has a little weight to it.

[J]

"Nothing in the constitution outlaws rape or theft, and I know you're not asserting a constitutional right to either of these things."

But those things clearly limit or infringe upon the rights of others which are explicit or implicit in the Constitution. I think it would be really hard to make a coherent argument that selling or buying a dildo does that. Soda's point of view makes a lot of sense to me. Mmmm...soda....

[hilly]

And, Mark, that's exactly the situation we have with pornographic movies, magazines, et cetera, and the controlling "community standards."

I think Alabama citizens need not sweat much; they could do mail-order. According to the linked article, nothing in the ruling spoke to either purchase or possession, just sale.

[Mark S.]

If a law has ANYTHING to do with religion or is based on a religious belief, you are establishing a religion. A dildo might not be used in any modern religious practices (though, you never know, this is 2004), but banning the sale and ownership of them because they they are considered blasphemous to anyone's religion is, in essence an establishment of a religion.

Oh, and before the bible-beaters in the peanut gallery have a chance to use the argument, just because the Ten Commandments say "Thou shalt not murder" doesn't mean we "secularists" want throw out the homicide statutes.There are reasons against murder, theft and fraud that have nothing to do with the expectations of anyone's god or gods. We don't need a religious justification.

Can anyone think of a serious, secular reason against the sale or ownership of sex toys? Anyone? Anyone at all?

[dhex]

what sort of basis does the ban of sex toy sales roll upon? the loose grab bag of obscenity where everything wicked is tossed?

the solution here is to start mailing dildoes to the circuit court in alabama. something disturbingly lifelike and latex, preferably.

[Lee]

It has not been doen yet sooooo.....

They can take my sex toys from my cold dead....

[dhex]

if they're cold most silicone can be boiled or dipped in warm water...

[KentInDC]

Mark S.,
Here in DC you cannot legally buy a gun despite the right to bear arms being enshrined in the Constitution. Plenty of states - few of them in the present-day South - have major barriers to exercising our Second Amendment rights. The right to sell sex toys, on the other hand, must be hidden within the penumbrae of the Constitution, yet to be discovered. If you get so bent out of shape about restricting supposed rights not enumerated in the Constitution, with what broad brush do you tar those so unfortunate as to live under restrictions of their right to bear arms?

I think it's a bad law, too. However, I think there are many more serious infringements of freedom going on. As is the case with most laws, I suspect a small number of people with a concentrated interest got this law passed. For all we know, sex toy dealers in Tennessee and Florida were looking to increase their business and had friends in Montgomery. I'm not blaming everyone in the US for the law requiring water-saving toilets - why do you insist on using the broad brush on an entire state for a stupid law? Most people in Alabama have jobs and other things to do that they consider more important than marching on Montgomery demanding permission to sell dildos.

As for laws being passed for religious reasons, there are often as many reasons as there are votes for the law and the true reasons are seldom disclosed. The effects of the law are what matter.

[J]

"Can anyone think of a serious, secular reason against the sale or ownership of sex toys?"

I can't think of a reason I would consider worth a shit, but I can certainly think of reasons people might raise that aren't explicitly religious. Reasons along the lines of tearing the moral fabric of society, it's for the children, moral perversion, etc. People making these arguments might often have religious motivations, but if they frame them in terms of societal good, that seems like an issue that should at least be addressed (if only by saying, "Do you have any legitimate, rigorous evidence 'society' will be harmed by my dildo? No? Then fuck off.").
I think it's maybe somewhat analogous to some arguments against gay marriage. A lot of people opposed to it are motivated by religious reasons, but they often use societal good arguments.

I think hilly's right that this isn't necessarily a 1st amendment establishment issue.
But I should also qualify this and my last post by saying I've never studied consitutional law. Plus I'm kind of slow-witted. And I smell bad.

[Mark S.]

And, Mark, that's exactly the situation we have with pornographic movies, magazines, et cetera, and the controlling "community standards."
How in name of Hugh Hefner does a bored housewife stopping by the local sex shop to purchase a "pocket rocket" degrade "community standards?" Is she going to jack-off (or would that be "jill-off") on the street corner in front of a group of school kids?

I'm sure the argument goes that only perverts and the dregs of society peruse sex shops. If that's true, then it's only because that our society has such a bug up it's ass about sexuality (thanks to organized religion) that we drive erotica from the mainstream and into.darker corners of society. If more average, everyday people stopped by sex shops and consumed erotica and sexual aids, the weirdos would be no where to be found. The pervs don't want to be around "normal" people.

We shouldn't have to hide in our sexuality. We shouldn't have to buy our porn and our vibrators off a Web site so we don't offend the backward sensibilities of "decent" people. We need to toss our superstitious inhibitions aside and be proud that we like to fuck.

[BillyRay]

No offense Nick, but the decision says Ruling Constitution Doesn't Include Sexual Privacy

I know it might be hard for libertine libertarians such as yourself to understand, but this is an issue that should be left up to the legislature. Not the courts. Just like abortion. No where in the constitution does it say anything about abortion, yet some black robed tyrants magically discover something about it in the constitution.

As for me, I still plan to vacation in Gulf Shores Alabama. Come on down. Beautiful women, beaches and great people. We don't need Nick Gillespie . He's a wuss anyway.

[thoreau]

I know it might be hard for libertine libertarians such as yourself to understand, but this is an issue that should be left up to the legislature

I subscribe to the radical view that such matters should be left up to individuals to decide for themselves.

Or if we must have a law against sex toys, let's at least imprison the legislators who passed that law, since they clearly have something up their asses already!

[Mark S.]

"Constitution, yet to be discovered. If you get so bent out of shape about restricting supposed rights not enumerated in the Constitution, with what broad brush do you tar those so unfortunate as to live under restrictions of their right to bear arms?"

I hate to bust up the "atheist equals leftist" stereotype, but I'm all for the 2nd Amendment and despise state level gun control as much as Alabama's anti-dildo law. You have as much right to carry a handgun in DC as you do to buy a strap-on in Tuscaloosa

I leave the floor open to any cliche Freudian references.

[Mark S.]

"Beautiful women, beaches..."

I take it they have to wear burkas instead of bikinis? I mean, all that indecent exposure would offend the "Christian values" of the residents, wouldn't it?

[BillyRay]

Some of the skimpiest bikinis you've ever seen. Southern women with out a doubt are the best looking.

[BillyRay]

I subscribe to the radical view that such matters should be left up to individuals to decide for themselves.

So if individuals want to molest little boys, then that's fine with you too?

[drf]

cockrings and bullwhips
and bright shiny dildos
crawling around on my knees and my elbows
tying me up with packing string
these are a few of my favorite things

(with thanks to Mr. RRGF)

Mark S: trying to argue with people who vaguely agree with the ban is fruitless. they'll endure any contradiction to allow for the state to meddle in these types of things, and any attempt to change that will just "prove" that you're "a bigot" or whatever they're accusing you of. or you're gonna be accused of stereotyping. And of being anti christian. and of not being nice to your mother. and of singing the seventh inning stretch song incorrectly. or of not knowing what the final song on "London Calling" is really called. or not knowing where bob dylan is singing about.... you know, heavy shit.

time to plug the anal intruder into a 220 volt socket...... 🙂

[thoreau]

So if individuals want to molest little boys, then that's fine with you too?

Uh, no. Buying a sex toy for use with a consenting partner is not even in the same league as molesting children. If you can't see the difference then I don't know what to say.

[Mark S.]

"So if individuals want to molest little boys, then that's fine with you too? "

Yeesh, and people say that my Nazi-comparisons were out of line.

[KentInDC]

Mark S.,
Obviously, I didn't make my point very clearly. You tar Alabamans with a broad brush because their legislators infringe on a right YOU BELIEVE exists in the Constitution while other states are clearly infringing a right ENUMERATED in the Constitution. What epithets do you use to describe residents of Massachussetts or DC? I had no reason to suspect you are not libertarian. I only wonder why this particular infringement of liberty earns the victims of that infringement such scorn.

[Father O'Malley]

Mother Church teaches that the use of foreign objects in sex is a sin. That's why I don't use condoms, let alone sex toys, when molesting the altar boys.

I support the Alabama law!

[whoa]

thoreau's speechless 🙂

[BillyRay]

Uh, no. Buying a sex toy for use with a consenting partner is not even in the same league as molesting children. If you can't see the difference then I don't know what to say.

Where did the decision say anything about consenting adults using sex toys ?

All it says is, the state of Alabama has the right to regulate the sale of such items because the constitution doesn't say anything about dildos. I know it might be hard for you to believe, but there are dry counties throughout the south. No adult beverages. The people have spoken via their elected represenatives. The way it should work. Now we live in a judicial dictatorship.

[Jamie S]

My two cents: Leave it to the state. No one has presented a clear reason why BUYING dildos is a consitutionally protected right. Maybe it "should" be legal in Libertaria, but Alabama can choose it's own rules. If you don't like it, move to NY. You can't have a concealed gun there, but you can buy all the fetish gear want and buy liquor 24/7.

[BillyRay]

Very well said, Kent!

[BillyRay]

Very well said, Kent!

[BillyRay]

Very well said, Kent!

[Soda]

Mmmm...soda....

You do not have a constitutional right to drink me.

So hands off, J!

All kidding aside, c, your point is well taken. And you are right, I am not asserting a constitutional right to rape or kill.

[dhex]

actually, you can't buy liquor here 24/7. beer yes, liquor, no. unless you count bars. but i don't think we're talking about bars, are we? there are also bars which do burlesque nights and some which auction off toys in babeland gear occasionally as fundraisers, so in many ways its the best of all possible worlds.

i would say buying dildoes is a constitutionally protect right because free speech extends to action, and fucking is action, and it is in all ways an action that speaks louder than words. and is more of an expression of who we are than all the newspapering and blogging combined.

[thoreau]

BillyRay-

First, at no point in this thread have I sided with the people who believe that the sale of dildos is protected by the US Constitution. So I actually agree with the ruling. All I've done is criticize the law in question.

Second, yes, the people of Alabama have spoken via their elected representatives. And the resulting decisions has been to outlaw private transactions that hurt nobody except perhaps the adults who voluntarily buy and then misuse the toys. And, come to think of it, some of those adults probably wanted to be hurt 🙂

I'm not suggesting that black-robed dictators should end this injustice, I'm just criticizing the injustice.

[Mark S.]

"You tar Alabamans with a broad brush because their legislators infringe on a right YOU BELIEVE exists in the Constitution while other states are clearly infringing a right ENUMERATED in the Constitution. What epithets do you use to describe residents of Massachussetts or DC? I had no reason to suspect you are not libertarian. I only wonder why this particular infringement of liberty earns the victims of that infringement such scorn."

I reserve my epithets for those who support such stupid laws. Given the "democratic" nature of our governments (not absolute, I know) it's a pretty safe bet that the anti-sex toy laws have the blessing of the majority of Alabama's residents, as does DC's gun laws have the support of a majority of it's residents. You don't see anyone demanding the

Of course, majoritarianism is no excuse for stupid laws. That's why we have the 1st and 2nd amendments, to protect our rights regardless of what the mob or the government say. That's part of what makes me so mad about this. We have a judge defending majoritarian tyranny. If it can happen with sex toys, it can happen with handguns. All it takes is a clever shyster and judge who will agree with them.

I have nothing but empathy for the "victims" who have to put up with the stupidity supported by their neighbors and politicians in the governments that claim to represent them. (i.e. If you didn't vote for them, they don't represent you.) They're the ones getting it up the ass--sort of speak. It's all the more reason for them to get mad, rise up and fight this bullshit with every means at their disposal.

It shouldn't matter if they're are "more important issues." Tyranny is tyranny, no matter how small and petty it seems at the time. It needs to be fought where ever it crops up and quickly. Like cancer you can't ignore it until later, you have to fight it then and there before it wins.

[BillyRay]

Nick writes:

One more reason to move to Mississippi.

Better not Nick, Virginia might not ever speak to ya again :>)

[BillyRay]

thoreau writes: outlaw private transactions that hurt nobody except perhaps the adults who voluntarily buy and then misuse the toys. And, come to think of it, some of those adults probably wanted to be hurt 🙂

I agree. I think it's a dumb law, just like dry counties. I'm just sick and tired of libertine liberarians inventing rights where none exist. We don't live in LibUtopia.

[Mark S.]

"The people have spoken via their elected represenatives. The way it should work. Now we live in a judicial dictatorship. "

And a democratic dictatorship is somehow better?

"If you don't like it, move to NY. You can't have a concealed gun there, but you can buy all the fetish gear want and buy liquor 24/7."

Ah yes: American Freedom--VOID WHERE PROHIBITED BY LAW.

[thoreau]

I agree. I think it's a dumb law, just like dry counties. I'm just sick and tired of libertine liberarians inventing rights where none exist. We don't live in LibUtopia.

So, after much debate it turns out that we agree. Figures 🙂

[Ricky]

The problem I see with the law is that it should be more of a county issue.

[KentInDC]

Mark S.,
I feel quite certain that most Alabamans had no idea this law even existed until they saw it in the news. I'd be glad to take your bet on whether a majority of Alabamans support the law if there were an economical way to make such a determination. How much time have you spent in the state? The state has a very vocal minority on such issues, but I can assure you that most people (including most churchgoers) could not care less what sort of sex toys their neighbors buy and find the attention such a silly law brings to the state an embarrassment. By the way, DC's gun restrictions WERE recently challenged and the court said that the Second Amendment didn't apply because DC isn't a state. There is a decision worth getting angry over.

Sorry, I have to go rise up against the powers that be in DC. Someone tell my employer I have more important things to do for the rest of my life.

[Gadfly]

No wonder Bush never showed up there.

[Mark S.]

" I'm just sick and tired of libertine liberarians inventing rights where none exist."

As much as I respect the concept of the Bill of Rights, why the hell does a "right" have to be written on a piece of paper in order to respected? A right exists REGARDLESS of what the government says or does.

A worker in the People's Republic Of China has a right to free speech regardless of the censorship the government imposes on her. A British subject has the right to own a firearm to protect his life, liberty, and property regardless of the gun control laws his government imposes up him.

Now, as to the matter of whether or not the sale, ownership, or use of a sex toy is a "right," Let's examine just what a right is. A right is a moral claim to a freedom of action that does not place a coercive obligation upon another individual.

The use or ownership of a sex toy does not place an obligation on anyone, you don't have to use or own one if you don't want to. Ditto the sale. You don't want a dildo in your house, don't buy one.

Unless you can prove to me that the sale, use, or ownership of a sex toy somehow coercively obligates another individual you should have a right to it. The rest of the people around you, be they a majority or a minority, have no rational claim to deprive you of that freedom to action.

The right to play around with a double dong exists whether BillyRay or this judge believes it or not. It doesn't matter if it's scratched on a yellowed piece of parchment in a glass display case in the National Archives

[Mark S.]

Edit: "It doesn't matter if isn't scratched on a yellowed piece of parchment in a glass display case in the National Archives"

[thoreau]

No wonder Bush never showed up there.

Nicely done!

[Neil Lindsey]

But it's not a dildo, it's a massager. I use it for the hard to reach places.

[Dan]

if we today craft a new fundamental right by which to invalidate the law, we would be bound to give that right full force and effect in all future cases including, for example, those involving adult incest, prostitution, obscenity, and the like

Why is it that every time a case like this comes up, the first thing social conservatives think about is dicking their sister or humping their pets? There's some freaky Freudian stuff going on here somewhere.

[BillyRay]

I think many of the so called libertine libertarians could learn alot from this article States' Rights Revisited

[thoreau]

Why is it that every time a case like this comes up, the first thing social conservatives think about is dicking their sister or humping their pets?

Good point! Even though I very reluctantly agree that there is no basis in the Constitution for striking down this law (yes, yes, there's plenty of basis in common sense, but Courts can only strike down laws that violate the Constitution), I wish the Court would have chosen some example other than incest. If they had just said "Well, even though it's a dumb law we lack the power to strike it down" all would be good.

But no, they have to say "Next thing you know people will be having all sorts of weird sex and we'll be obligated to uphold their right to do so." (gasp!)

[BillyRay]

The right to play around with a double dong exists whether BillyRay or this judge believes it or not. It doesn't matter if it's scratched on a yellowed piece of parchment in a glass display case in the National Archives

The court decision didn't say that you Mark didn't have a right to play around with a double dong dildo.

It did say that Alabama has a right to regulate the sale of double dongs. The judge is right, you and Nick are wrong!

[Steve]

I can't believe we've come this far without mentioning the 14th amendment and the way it has been interpreted by the Supreme Court.

Quick history:

1st amendment says CONGRESS (that's the one in Washington, DC, not Montgomery, AL) can't establish a religion

10th amendment says whatever powers are not specifically enumerated to the Federal Congress in the Constitution are left to the states

14th amendment, as interpreted by the Supremes (the black-robed tyrants, not the motown singers), is applies the entire Bill of Rights to the state legislatures, pretty much destroying the 10th amendment and, consequently, the concept of federalism

So this all comes down to whether or not you agree with the way the 14th amendment has been applied. If you do, then the judge in this case is wrong. On the other hand, if you believe in federalism (which I do), then you think the Feds have no f'ing business telling states what laws they can and can't have.

Is it a stupid law? Yes! Is it a threat to freedom? Yes! (At least for the people of Alabama) But an omnipotent federal government with no checks put on it by federalism is an even bigger threat, and it applies to all Americans, not just Alabamans.

Furthermore, even if you agree with the idea of applying the 14th amendment to the Bill of Rights, you would still have to argue that a law against selling sex toys is somehow either establishing a religion or prohibiting the free exercise of it. This is quite a stretch.

[Jennifer]

Here in Connecticut it is illegal to sell drug paraphernalia, so the head shops get around that by taking little stickers which read "For tobacco use only" and putting them on their bongs*, hookahs, crack pipes, and so forth. I wonder if some clever Alabama entrepreneur could get around the anti-dildo laws by claiming that they are only for educational purposes; instead of sex ed classes demonstrating how to put a condom on a banana, they can learn how to put it on something that actually looks like a penis! More or less.

*I of course am NOT speaking from personal experience here. I have absolutely no idea what the inside of a head shop looks like. None whatsoever.

[Mark S.]

"The court decision didn't say that you Mark didn't have a right to play around with a double dong dildo.

It did say that Alabama has a right to regulate the sale of double dongs. The judge is right, you and Nick are wrong! "

Use or sell, what difference does is make? I can use one in the Christo-fascist Republic Of Alabama?, but heaven help me if I some how make MONEY off them?

If funny how conservatives foresake capitalism and private property the second their Neanderthal notions of morality are threatened.

[Pro Libertate]

I can't decide whether I should be offended. I'm a native of Alabama, and I live in that nude bar part of Florida referenced above (Now, don't think we aren't enlightened here, as noted in this week's The Onion: Strip Club Makes Commitment To Hire More Minorities.

As I've noted to friends in the past, I'm in the last group it's okay to be insanely prejudiced against: Southern, Heterosexual, WASP Males. Lord knows we should be shipped off somewhere as a group, because there's no way any of us could think outside of the stereotypes.

Seriously, even in Libertarian Superparadise, the culture wars could be almost as painful as they are when they involve the force of law. It's easy to forget that, but peer pressure hurts even when you are "free" to do whatever you want. Oh, and I don't think it's anybody's business what you do to yourself or (in most cases) to consenting adults, for the record, so I oppose these kinds of laws 🙂

[Aaron Armitage]

Mark S;

I hate to break it to you, but if you openly wish more of a particular group's ancestors had been killed, you're a bigot.

[MJ]

I checked the link and I have some questions. What court initially overturned the law, a lower state court, a lower federal court? How did this case get up to a federal court anyway? What is it about this issue that makes it a federal case? I think any federal court should have punted this away for lack of jurisdiction.

[MJ]

Ack! Didn't see the link at the bottom. No matter, I still don't see the justification in taking this to federal court, "silly" and "bad" are not synomymous with "unconstitional".

[MJ]

"If a law has ANYTHING to do with religion or is based on a religious belief, you are establishing a religion."

"Oh, and before the bible-beaters in the peanut gallery have a chance to use the argument, just because the Ten Commandments say "Thou shalt not murder" doesn't mean we "secularists" want throw out the homicide statutes." - Mark S.

You can have an absolutist viewpoint on the establishment clause (widely stretched beyond the plain meaning of the words), or you can have qualifications. You cannot have both.

[JJB]

"If the people of Alabama in time decide that SLAVERY / PROHIBITING GAY MARRIAGE / PERSECUTING CHRISTIANS / ETC. is misguided, or ineffective, or just plain silly, they can repeal the law and be finished with the matter," the court said.

"On the other hand, if we today craft a new fundamental right by which to invalidate the law, we would be bound to give that right full force and effect in all future cases including, for example, those involving adult incest, prostitution, obscenity, and the like."

Take the phrase "prohibition on sex toys" and replace it with whatever cause you want, and it makes clear that the judge's rationale is a cop-out. The role of the judge in this case is to judge on the constitutionality of this particular law. This case is not "crafting a new fundamental right by which to invalidate the law" ... the plaintiff was asking a judge to do his job in ruling on the constitutionality of a law!

[c]

Well, you could replace the phrase "prohibition on sex toys" with any phrase you'd like, but as it turns out the ones you've chosen run afould of "unequal treatment under the law." A prohibition on sex toys doesn't.

And furthermore, the appeal court here is obligated to rule on the lower court's ruling on the constitutionality of the law. What's the jurisdictional problem again?

[David 2]

Further proof that Alabama is the Anus of America!

[Jim Walsh]

Well, we are talking about a place where the majority of people oppose gays getting married, think Roy Moore is a hero, and reject the theory of evolution. On the other hand, some great music has come out of Muscle Shoals...

http://www.mssound.com/index1.html

[Eric II]

Let it be noted that this decision was made by the 11th District court. The same court to which Bush recently appointed Bill Pryor, former Alabama Attorney General and ultra-reactionary, bypassing the Senate along the way. Perhaps the best libertarian argument against keeping Bush around for another four years is the extent to which he could fill both the Supreme and District courts with '50s-nostalgic, police-statist theocrats during that time.

[MT]

David 2

If I were the "anus of America" I would want to prohibits sex toys too!!

[Mark S.]

...and people wonder why I'm an atheist.

[Allen Phelps]

As much as I think this is a ridiculous law, I am not sure if I see the reasoning behind declaring it unconstitutional based on the right to privacy. Can anyone shed any light on the logic involved?

[Did my time in Miss Hippy and]

The only sane reason to move to Mississippi is to be a bit closer to New Orleans.

[William B.]

The state law bans the sale of sex toys. Not the possession or use of sex toys.

Trying to frame this as a privacy issue makes no more sense than trying to make the sale of beer in dry counties a privacy issue.

Oh, and rather than discussing the issue I'd like to see everyone take cheap, prejudiced shots at the south instead.

[Mark S.]

"Trying to frame this as a privacy issue makes no more sense than trying to make the sale of beer in dry counties a privacy issue."

How about this: It's none of the state's fucking business if I sell sex toys or beer.

Now it's a privacy issue.

[Sarnath]

Oh, and rather than discussing the issue I'd like to see everyone take cheap, prejudiced shots at the south instead.

Done and done.

[Alabama]

Further proof that Alabama is the Anus of America!

Hey, I resemble that remark!

Now if you don't mind, I've got to find a government official that will passionately declare that the Earth is flat and the moon is made of green cheese.

[Clancy]

"Oh, and rather than discussing the issue I'd like to see everyone take cheap, prejudiced shots at the south instead."

Thanks, William B. Such cheap shots summarily dismiss the considerable number of gays, lesbians, atheists, agnostics, pagans, libertarians, Democrats, social Democrats, Greens, feminists, anti-racists, and other lefties in the south. We're there...and these overgeneralizations insult us as well.

[Mark S.]

"Oh, and rather than discussing the issue I'd like to see everyone take cheap, prejudiced shots at the south instead."

OK, I will...The North didn't kill enough of the inbreed, illiterate, Bible-beating, Ku-Kluxing, peices of shit during the Civil War.

[Franklin Harris]

"Well, we are talking about a place where the majority of people oppose gays getting married, think Roy Moore is a hero, and reject the theory of evolution. On the other hand, some great music has come out of Muscle Shoals..."

Most people in the U.S. oppose gay marriage, agree with Moore on the 10 Comandments display and are at least fuzzy on evolution. Your point?

[Mark S.]

Whoops... make that "pieces." I might be accused of being an anti-Southern bigot, but at least I'M not illiterate.

[Clancy]

Better correct your usage of "inbreed" too, then; the adjective form is "inbred."

By the way, I'm from Muscle Shoals. Thanks for the shout-out, Jim; you're quite right about the musical talent in that area.

[Jennifer]

I lived in Huntsville, Alabama for one summer after college. The stupidity stereotype is not without merit.

Would people feel better if comments were given modifiers, to wit: SOME Alabamans are stupid uptight idiots who enjoy imposing their warped morality on others, whereas others are fine, upstanding people whose IQs fall well within the three-digit range?

[William B.]

No, Mark, your just a bigot. No qualifiers needed.

[Mark S.]

"Most people in the U.S. oppose gay marriage,
agree with Moore on the 10 Comandments display and are at least fuzzy on evolution. Your point?"

My point is that most people in the US are stinking homophobes, putting a monument with the 10 Commandments on public property is a violation of the establishment clause, and evolution is fact no matter what the knuckle-dragging Jesus-freaks think.

[Mark S.]

"Better correct your usage of "inbreed" too, then; the adjective form is "inbred." "

Ah, thank you, being confronted with mind-numbing stupidity such as this bullshit has a tendency to make me loose my command of the English language as well as my temper.

[hilly]

Wipe away the rabid froth from your flapping lips, Marky Ess. You're scaring even your fellow true believers.

No doubt you'll be calling for an Southern auto-de-fe next.

[hilly]

"a tendency to make me loose my command of the English language as well as my temper"

Man, do you ever bait easily. And it's "lose," loser.

[zorel]

Mark S.

let's remake the whole world in your image, dude! that 'll be cool, or whatever.

or you could simply FOAD - I bet no one in the "North" will miss ya

[zorel]

... and I say the above as someone who is all for sex toys for everyone (as long as they are not govt. funded)

[c]

how appropriate that everyone taking part in the sex toy discussion has something up their ass.

[Gary Gunnels]

Here's a cheap shot:

This is oh so typical of my fellow Alabamaians.

[Mark]

Rather than take cheap shots at the South, I think we should focus our attention on intolerant, nannyish, bible-beating theocrats.

Many of whom seem to live in the South.

[kevrob]

Randy Barnett's take on Lawrence v. Texas is apropos here.

Second, both the Ninth Amendment and the Privileges or Immunities Clause of the Fourteenth Amendment authorize the protection of unenumerated (and unenumerable) liberty rights "retained by the people." The Ninth protects against federal violations of liberty rights; the Privileges or Immunities Clause protects against violations by states like Texas of liberty rights plus the Bill of Rights and other privileges or immunities of its U.S. citizens.*

Barnettt points out that, unlike Griswold, the contraceptives case that laid the basis for a "right to privacy" regarding sex, and later, abortion, the SCOTUS in Lawrence was expressly referencing the right to liberty. Governments have a burden of proof to justify laws that infringe on liberty, as opposed to the "states' rights" position that every law not expressly prohibited is allowed.

The Ninth is no longer Judge Bork's inkblot. It is every bit as important as the Tenth.

Kevin

* http://www.nationalreview.com/comment/comment-barnett071003.asp

[Soda]

Governments have a burden of proof to justify laws that infringe on liberty, as opposed to the "states' rights" position that every law not expressly prohibited is allowed.

Great find, kevrob.

This is exactly what I was referring to previously regarding Scalia. While reading the Lawrence v. Texas decision I found Scalia's dissent troubling. He doesn't seem to believe that government has burden of proof to justify laws that infringe on liberty. If it's not in the constitution then tough luck Mr. Dildo Enthusiast.

[KentInDC]

In case anyone is still paying attention to this thread, here is the latest on the sex toy crisis in Bama:

http://www.al.com/news/huntsvilletimes/index.ssf?/base/news/1091205935184200.xml

By the way, the plaintiffs used the 14th Amendment argument.

[raymond_m]

Sancta Dildo, ora pro nobis.

There. Problem solved.

[c]

Sancte Dilde, don't you think?

[raymond_m]

dildo, dildonis, f.