Lawrence v. Texas, which gave constitutional protection to same-sex adult sodomy, is the latest signpost on the Court's sexual privacy trail. The Supreme Court's opinion avoids formulating a specific rule to guide discretion, opting instead to focus on overruling Bowers. Nevertheless, Justice Scalia's dissent, with its ominous prophecy that Lawrence will be the death of legislation banning sex aids and other morality crimes, provides a tantalizing promise of a potentially broad application. This article considers that potential in the context of various state laws banning sex aids. Alabama's law, for example, banning such devices, is based on Alabama's claim that the pursuit of orgasms by artificial means for their own sake is detrimental to the health and morality of the State.
Part I of this Article details and critiques generally the Supreme Court's past precedent limiting constitutional privacy and liberty rights. By using history and tradition in interpreting the limits of substantive due process, the Court allowed gender discrimination to infect constitutional interpretation. A lack of concern about women's health issues has fueled a history and tradition that is oblivious to the realities of women's sexual selves. Part II discusses the history of sex aids - specifically devices intended to allow women to achieve orgasm - in the context of their history and tradition. Surprisingly, vibrators have a history and tradition of non-regulation. Part III examines the interaction between gender bias in legal and medical applications, specifically in the case of sex aids. Ultimately, medical stereotypes can infect case law, and medical bias can reinforce gender stereotypes in the law. Part IV details how states enforce statutes outlawing such devices. These laws are not just quaint artifacts of an earlier time and place - Alabama's law was passed in 1998 - and prosecution under these laws results in convictions and jail sentences. Part V reviews the Lawrence majority opinion and searches for clues as to what the decision means for sexual privacy generally, and for sex aids specifically. This article concludes that the change in focus is a narrow victory for liberty and privacy interests, at most shifting the burden to the government to justify its reasons for impinging those interests whose application, not surprisingly, will depend upon the proclivities of the Court that applies it in the next case. When considering sex aid cases after Lawrence, however, the courts should not view the situation from a male-centered definition of sexuality that reduces women's normal needs to pathologies or diseases or that ignores sexuality unrelated to procreation. Rather, courts should examine whether it is constitutionally permissible for a state to outlaw the sale of sexual devices that are used in the privacy of an adult's own bedroom. They should rationally conclude that the government has no such power.
- Constitutional law,
- substantive due process,
Available at: http://works.bepress.com/marybeth_herald/5/