Stone on the Alabama Sexual Freedom Case

Sex and Sin
Geoffrey R. Stone
The Huffington Post
October 3, 2009

In 1568 Montgomery Highway v. City of Hoover, the Supreme Court of Alabama this week upheld the constitutionality of an Alabama statute prohibiting the sale of "any device designed ... primarily for the stimulation of human genital organs." The law was targeted primarily at the sale of such objects as vibrators and dildos.

In a thoughtful opinion, the Alabama court concluded that because the United States Supreme Court has not yet expressly recognized a constitutional right to sexual freedom, analogous to the freedom of speech, the freedom of religion, or the freedom to use contraceptives, the law must be upheld as long as it has a rational justification. And, applying that test, the court held that the statute could rationally be justified as an effort to enforce the "public morality."

The Alabama court's understanding of the governing precedents of the United States Supreme Court is reasonable. Although the Supreme Court has held that the government cannot constitutionally prohibit the sale of contraceptives, it grounded that doctrine in the fundamental right of individuals to decide for themselves whether to "bear or beget" a child. That doctrine concerns reproductive rather than sexual freedom.

And although the Supreme Court has held that the government cannot constitutionally prohibit private homosexual conduct, it arguably grounded that doctrine in part on concerns about discrimination against homosexuals, rather than on a doctrine of sexual freedom.

Thus, it was reasonable for the Alabama Supreme Court to conclude that the United States Suprem