Supreme Court Likely to Uphold Alabama Sex Toy Ban

Justices unlikely to make a rights issues out of sex toys
By Rob Quinn,  Newser Staff
Posted Sep 16, 2009 6:58 AM CDT
Alabama's Supreme Court recently upheld a ban on the sale of sex toys and the issues is expected to reach the US Supreme Court.   (©Daquella manera)

(Newser) – An Alabama statute criminalizing the sale of sex toys will probably be upheld as constitutional if it is challenged in the Supreme Court, Eugene Volokh writes at the Volokh Conspiracy. The statute—which was upheld by the state's Supreme Court Friday and bans the distribution of  "any device designed or marketed as useful primarily for the stimulation of human genital organs"—will garner at least a 6-3 vote, Volokh predicts, since even liberal justices will want to save their power to recognize unenumerated rights for issues more important than sex toys.

The justices' reluctance to declare that every American has a right to sex toys means Alabama's unsupported arguments about the practical efforts of the ban will probably be accepted, the law professor writes. None of the justices seem to accept "the libertarian constitutionalist notion that a broadranging liberty to do what one pleases so long as it doesn't directly enough hurt others is itself so important that it should be recognized as a constitutional right," Volokh notes.