Alabama Supreme Court Rules Morality Can Be Constitutional Basis for Product Bans

~Jonathan Turley

Alabama Supreme Court has joined the debate over morality being the sole basis for legislative restrictions on citizens. The court upheld the state ban on the sale of sex toys purely on the basis that such toys are viewed as immoral. Since Lawrence v. Texas, such morality based laws have been questioned on constitutional grounds. For a prior column, click here.

At issue is Section 13A-12-200.5(4) which prohibits such sales “within 1,000 feet of a church, place of worship, church bookstore, public park, public housing project, daycare center, public or private school, college, recreation center, skating rink, video arcade, public swimming pool, private residence, or any other place frequented by minors.” It would be simpler to just ban it outright rather than pretend a tailored zone restriction when the law includes any residence, church bookstore or place with kids.

The case of 1568 Montgomery Highway, Inc. v. City of Hoover involves a business called Love Stuff in Hoover, Alabama where sex toys are sold to adults.

The Alabama Supreme Court ruled 7-2 that the majority can ban such sales as offensive to the majority of the citizenry. Associate Justice Michael F. Bolin wrote “[p]ublic morality can still serve as a legitimate rational basis for regulating commercial activity, which is not a private activity”. It relied on the earlier decisions of the Eleventh Circuit and Fifth Circuit that such laws can be defended as rationally based on morality grounds. The court distinguished the Lawrence case.

The court ruled:

in rejecting Love Stuff’s federal constitutional challenge to [the law], we agree with the interpretation given Lawrence v. Texas by the United States Court of Appeals for the Eleventh Circuit. Post-Lawrence public morality can still serve as a legitimate rational basis for regulating commercial activity, which is not a private activity. As the 11th Circuit pithily and somewhat coarsely stated: `There is nothing `private’ or `consensual’ about the advertising and sale of a dildo’.

The case could make for a fascinating appeal and finally put the question of morality legislation squarely before the Supreme Court. However, Justice Sotomayor would be an uncertainty on the question (as opposed to David Souter who would likely have voted to strike down the law).

Here is the opinion: Alabama decision

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