In a startling failure to follow the precedent established by the Supreme Court last year in Lawrence v. Texas, a three-judge panel of the U.S. Court of Appeals for the 11th Circuit, based in Atlanta, voted 2-1 to overrule a trial court’s decision that an Alabama law that makes it a crime to sell “sex toys” is unconstitutional.
The same two judges who engaged in public dispute about the meaning of the Lawrence sodomy ruling a week earlier in connection with the full 11th Circuit’s refusal to reconsider a panel’s decision upholding the Florida anti-gay adoption law, repeated and expanded upon their arguments in the majority and minority opinions in Williams v. Attorney General of Alabama, issued on July 28.
In Lawrence, the Supreme Court overruled its 1986 decision in Bowers v. Hardwick, which had held that the “presumed moral beliefs” of the people of Georgia that sodomy is wrong provided a sufficient basis to uphold a criminal law imposing a potential 20-year prison sentence on consenting adults who engaged in anal or oral sex, whether privately or publicly. In 1986, the Supreme Court said that the question was whether the constitution protects “the right of homosexuals to engage in sodomy.”
In 2003, the Supreme Court said that in Bowers the Court had improperly framed the question. The issue, said Justice Anthony M. Kennedy, was whether consenting adults are protected in their private sexual acts, and whether the government can impose majority moral judgments to make such acts a crime.
Kennedy asserted that Supreme Court cases decided earlier than Bowers had already made clear that the sexual privacy of adults is protected by the Constitution, and that moral objections to particular sex acts were not sufficient to overcome that right. In Lawrence, the Court said that Bowers was “wrong” when it was decided, and should be overruled.
But evidently this message did not get through to Judge Stanley F. Birch, Jr. and Senior Judge James C. Hill, who joined Birch’s opinion to make up the panel’s two-member majority. Birch wrote that the question before the court was whether the Constitution protects the private use of sex toys as a fundamental right. Birch also insisted, in apparent contradiction to the Supreme Court’s opinion in Lawrence, that the question whether using sex toys is a fundamental right should be determined by reference to whether our society has traditionally protected and valued such activity. In the absence of such historical evidence, he concluded that no fundamental right is involved, and that Alabama’s citation of moral concerns in outlawing the sale of such items was sufficient to sustain the statute.
In attempting to rebut criticisms raised by Judge Rosemary Barkett in her dissent, Birch contended—as he had the previous week in his opinion agreeing with the full circuit court to deny reconsideration in the Florida adoption case—that most of Kennedy’s opinion in Lawrence consisted of what lawyers refer to as “dicta,” statements unnecessary to decide the case before the court and thus not binding as precedent. According to Birch, the only binding language in the Lawrence decision was the brief statement at the end that Texas had failed to articulate a legitimate justification for making consensual sodomy a crime for same-sex partners. Birch insisted, contrary to Barkett, that the Court had not recognized any right of sexual privacy in Lawrence v. Texas.
Barkett clearly found this assertion to be truly astounding, pointing out that Kennedy had written in Lawrence: “Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence The instant case involves liberty of the person both in its spatial and more transcendent dimensions.”
According to Birch, this statement is “dicta” because it was made in the part of the opinion explaining why Bowers was wrong, rather than at the end of the opinion as an explanation of why the Texas homosexual conduct law was unconstitutional.
Barkett noted that, in Lawrence, the Supreme Court had specifically granted review to answer the question “whether Petitioners’ criminal convictions for adult consensual sexual intimacy in the home violate their vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment,” and had answered that question “yes” in no uncertain terms—after stating that the “case should be resolved by determining whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment.”
To Barkett, these statements clearly indicated that the Court had recognized a broader right of adult sexual privacy, and not a narrow right of gay people to engage in the specific acts prohibited by the Texas statute, but Birch evidently didn’t find them relevant to determining the precedential authority of Lawrence.
The lawsuit against the Alabama statute was filed by the American Civil Liberties Union (ACLU) on behalf of a variety of Alabama plaintiffs shortly after the law went into effect. It was held unconstitutional by the district court twice, once after its earlier decision had been reversed by an 11th Circuit panel and sent back for reconsideration. In its earlier decision, issued prior to the Lawrence ruling, the 11th Circuit had relied specifically on Bowers v. Hardwick in finding that Alabama legislators could enforce their moral views through a criminal statute that burdens the private sex lives of the state’s adult citizens. The newest trial court ruling was issued in 2002, still prior to the Supreme Court overruling Bowers, but that trial judge had anticipated the Lawrence ruling by finding that there is a right of “sexual privacy” protected by the due process clause, and that the statute could only survive judicial review if the state could present a compelling justification for the law, which it failed to do.
The trial judge also anticipated the Lawrence ruling in finding determinative the evidence presented by the ACLU that there was no long-standing history of enforcing criminal prohibitions against sex toy sales and that at present few other states maintained such a prohibition. Birch, ignoring the Supreme Court’s handling of historical evidence in Lawrence, found that the trial court erred, both in adopting the ACLU’s view of the historical evidence, and in giving determinative weight to the failure of the state to enforce such a criminal prohibition in the past. According to Birch, no fundamental right to use sex toys could be found unless there was affirmative history; the lack of negative history was not sufficient.
Barkett pointed out that if this were the standard, then most of the Supreme Court’s important sexual privacy cases would have been decided differently. When the Supreme Court ruled in 1965 that a right of privacy protects married couples in their use of contraceptives, there was a history of criminal prohibition of contraception, and when the Court extended that ruling to unmarried couples in 1972, there was a long history in many states of outlawing any sexual activity outside of marriage. Furthermore, when the Supreme Court ruled in 1973 that a woman’s right to terminate her pregnancy was protected by the Constitution, almost all of the states had criminal laws prohibiting or sharply limiting access to abortion, many dating back more than 100 years. Clearly, an affirmative history of valuing and protecting particular conduct is not a prerequisite to find that conduct protected by a constitutional right of privacy.
In the Florida gay adoption case, the active judges of the circuit split 6-6 on whether to grant rehearing, thus denying the petition and producing the first round in the Birch-Barkett debate. In light of the line up of the judges the first time around, it seems unlikely that the circuit would now vote for rehearing this case, but the sharply differing views of the precedential scope of Lawrence suggest that a petition to the Supreme Court for clarification is needed.
Judge Birch was appointed to the 11th Circuit by Pres. George H.W. Bush, and Judge Barkett by Pres. Bill Clinton.