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What Would the Founders Think of Your Bedroom Games?

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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There’s no constitutional right to sex toys -- yet. That’s according to a federal appeals court, which declined to strike down a Georgia city’s ordinance that prohibits selling sexual aids. But the three-judge panel invited the full court to rehear the case and strike down the law, stating that it was “sympathetic” to the claim but constrained by precedent.

Eventually, the right to sex toys is likely to be accepted in all jurisdictions, as it already is in some. The basis will be the right to sexual intimacy recognized by the U.S. Supreme Court in the landmark 2003 case Lawrence v. Texas. And that raises a question about the evolving nature of constitutional rights: How did we get here? How does a decision framed around the autonomous right of two people to create an intimate sexual relationship come to cover access to toys? And should it?

The idea that the U.S. Constitution would apply to sex toys at all may seem a little silly. Certainly the Framers would have found the idea absurd. They recognized an inchoate right to privacy from search and seizure. But they didn’t think the right protected all conduct that was no one else’s business.

That broader conception of privacy first emerged in 1965, when the Supreme Court found a right to purchase and use contraception in Griswold v. Connecticut. In his opinion for the court, Justice William O. Douglas emphasized the sanctity of marriage, a favorite judicial theme of his. (In his private life, Douglas loved marriage so much that he did it four times.)

When Justice Anthony Kennedy wrote the opinion striking down the Texas anti-sodomy law in 2003, he followed Douglas’s lead by focusing on the right of all people to form human relationships. As he put it, “when sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring.”

There’s no mention of sex toys there. Kennedy, in lifting the decision beyond the narrow question of particular sex acts, sought to shape a broader right of human intimacy.

From that premise, the U.S. Court of Appeals for the 5th Circuit actually did find a constitutional right to sex toys in 2008.

But the 11th Circuit did not. In 2004, the year after the Lawrence decision, it held that Lawrence did not recognize a fundamental right to sex toys. It reasoned that, in expanding constitutional due-process rights, the courts should consider those rights at their lowest degree of generality -- a point the late Justice Antonin Scalia loved to make. And it observed that there was no well-established American tradition of regarding sex toys as fundamental to human sexuality.

On Tuesday, a panel of the 11th Circuit reaffirmed its 2004 holding. Notably, there was a way it could have done otherwise. A panel of an appeals court can’t overturn the decision of an earlier panel -- only the full court sitting en banc can do that. But this panel could have said that the Supreme Court’s two recent gay-marriage decisions modified the meaning of the 2003 Lawrence precedent. Specifically, those decisions describe the Lawrence case as having established the right to sexual intimacy.

If there’s a right to sexual intimacy that includes gay sex, then arguably it should include all the consensual sexual practices that people use to create that intimacy -- including the use of sex toys.

Of course, sex toys aren’t invariably used in the formation of intimate relations. One of the plaintiffs in the Georgia case testified that she intended to use the sex toys alone. The other, an artist, testified that he uses sex toys as part of his art -- a fact that his lawyers used to try to make a First Amendment free-expression argument.

This is why the expansion of constitutional rights is so complicated and controversial.

Sure, it’s logically possible to treat sex toys as part of the right to sexual intimacy that has expanded from the “marital precincts” of 1965 to all consenting adults. In fact, it’s hard to avoid the conclusion that the right to sexual intimacy includes the right to create that intimacy using sex toys.

But it’s also faintly ridiculous to treat any object that people use in conjunction with sex as dignified with the constitutional status of intimacy.

That’s surely the reason the Supreme Court never took up the sex-toys question, even though there has been a split between the appeals courts for years.

The ultimate answer, surely, is that a law banning the sale of sex toys is idiotic, especially in the era of the internet. The idiocy of the law isn’t necessarily grounds to strike it down as unconstitutional. But a lot of idiotic laws do turn out to violate some right or other.

Soon enough, I would expect, sex toys will be constitutionally protected across the land. But with any luck, laws against them will be repealed before that has to happen.

  1. For the record, that argument is weak. I could use machine guns in my artwork, and that wouldn’t create a First Amendment right to buy them.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net