11th Circuit Rejects Constitutional Challenge to Ban onSaleofSexual Devices, Relies On Bowers

[Rick Duncan]

Even if the law is overinclusive for purposes of
secondary effects analysis, under the rational basis
test that should not be a problem. The courts defer to
the line drawing of the legislature, so long as the
line is reasonably related to a conceivable state
interest.

--Rick


--- James Maule <maule at LAW.VILLANOVA.EDU> wrote:
> Is the statute drafted in terms of zoning or
> otherwise directed at brick and mortar businesses?
> Or does it reach mail order sales, thus requiring
> the issuance of search warrants to search the homes
> of those who are known mail order users?
>
> Jim Maule
> Professor of Law
> Villanova University School of Law
> Villanova PA 19085
> maule at law.villanova.edu
> http://vls.law.vill.edu/prof/maule
>
>
> >>> conlawprof at YAHOO.COM 10/16/00 10:52AM >>>
> I wonder if the state could argue that the rational
> basis for the law is to protect neighborhoods
> against
> the *secondary effects* of sex toy businesses. Since
> no Free Speech issue is involved, these businesses
> could be completely prohibited because there would
> be
> no need to allow "reasonable alternative avenues of
> communication." Since we are only in rational basis
> land, so long as it is *conceivable* that sex toy
> businesses *might* affect property values, or impair
> the quality of life in neighborhoods where these
> businesses might locate, the law should be upheld.
>
> Of course, public morality is still a legitimate
> state
> interest. If the rational basis test is really
> applied, this should be a slam dunk win for the
> state.
> If the state loses under the rational basis test, it
> will be a sure sign that the courts are merely
> imposing their own policy preferences about whether
> this is wise public policy (for the record, as a
> legislator I would vote against this law--but I
> think
> it mocks the Constitution to make dildoes and rubber
> girlfriends a matter of constitutional entitlement).
>
> --Rick Duncan
>
> --- Tom Grey <tgrey at LAW.STANFORD.EDU> wrote:
> > I suspect the real impulse underlying the Alabama
> > statute is captured by
> > the Tim Allen joke about how the water jets in
> > Jacuzzi baths come in three
> > speeds: slow, medium, and "who needs a man,
> anyway?"
> > But the gender
> > discrimination argument against the law probably
> > requires too much inquiry
> > into "actual social meaning" for any court to be
> > comfortable with it.
> >
> > The rational basis argument is thus likely to be
> the
> > battleground, with the
> > key issue being whether, as Alabama argues, there
> is
> > a legitimate
> > legislative interest in discouraging "the pursuit
> of
> > orgasms
> > by artificial means for their own sake." The state
> > apparently argued that
> > this particular branch of the pursuit of happiness
> > could be discouraged on
> > health grounds, but that seems to require some
> > end-means argument which, as
> > I read the opinion, isn't forthcoming. If I'm
> right
> > in discounting that,
> > the case then comes down to whether masturbation
> can
> > rationally be judged
> > intrinsically immoral -- in which case it is
> clearly
> > rational to prohibit
> > commerce likely to foster or facilitate it.
> >
> > There is no doubt that the pursuit of sexual
> > pleasure unrelated to
> > possibilities of procreation is treated as
> > intrinsically wrong by an
> > important strand of Christian thought. The
> > interesting question to me is
> > whether this strand can be articulated in a way
> that
> > is not "too
> > theological" to be acceptable under Establishment
> > Clause doctrine. The case
> > for the intrinsic wrongness of masturbation makes
> > perfect sense if
> > sexuality is a Divine gift, bestowed for purposes
> of
> > procreation, but
> > prohibited for other uses. I've read a good bit of
> > the literature that
> > attempts to put the case on secular grounds, but
> > have never been able to
> > make heads or tails of it -- even when the
> argument
> > is made by John Finnis,
> > surely one of the smartest people around. But
> maybe
> > that's just me.
> >
> > Do we really have in prospect a debate on these
> > profound questions in the
> > courts? Somehow I doubt it; I expect to see it
> come
> > down to ipse dixit, as
> > in the rational basis part of the White opinion in
> > Bowers.
> >
> >
> > -- Tom Grey     Stanford Law School
> tgrey at law.stanford.edu
>
>
> =====
> Rick Duncan (conlawprof at yahoo.com)
>
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=====
Rick Duncan (conlawprof at yahoo.com)

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