THE BLOG

Alabama's Bad Vibrations

11/17/2011 09:02 am ET

Alabama's ban on sex toys is no laughing matter.

Ever since that state approved the Anti-Obscenity Enforcement Act in 1998, which prohibited the sale of "any device designed or marketed as useful for the stimulation of human genital organs," humorists have mocked the statute while many Alabamans with common sense have tried to downplay its significance. In 1997, the District Attorney of Madison County, Tim Morgan, told reporters that enforcing the ban was "a pretty low priority" and contrasted dildo dealing with "real crimes" that needed prosecution, while the conservative-leaning Press-Register of Mobile has called for repeal of the law on the grounds that it "makes Alabama look foolish." However, after an eleven-year court battle that climaxed on September 11, 2009, when the Alabama Supreme Court upheld the law in Love Stuff v. City of Hoover, Alabamans who sell sex toys -- even inside so-called "adult oriented" businesses -- face up to a year in prison and a $10,000 fine. Repeat offenders risk a ten year prison sentence. Opponents of the measure should not take this judicial defeat lying down. Whether the law is enforced, its very existence is likely to deter businesses from selling such toys and to deprive the women and men of the Yellowhammer State both freedom and pleasure. However, since the Alabama legislature has insisted on making sex toys a matter for public debate, progressive Americans ought to accept this challenge to debate such devices on their merits. I suspect most people, and most Alabamans, view sex toys as a social good. I am confident that, in the marketplace of ideas, sexual pleasure will trounce Puritanism -- and almost everything else.

Alabama's crusade against sex toys actually began as an effort by State Senator Tom Butler of Madison to ban nude dancing. Why precisely Butler objected to a naked foxtrot is not so clear, but even he admits that his effort spiraled out of hand. That was largely the work of two misguided individuals. One of these men is a fire-and-brimstone Baptist preacher named Dan Ireland who runs a letterhead organization called the Alabama Citizens Action Program. In a widely quoted interview, while discussing why the state should ban sex toys but not high-grade weapons, Ireland stated: "There are moral ways and immoral ways to use a firearm ... There is no moral way to use one of these devices." The other crusader is Alabama Attorney General Troy King, who built his early political career deriding homosexuality as "deviant behavior" and "perversion," but has toned down his homophobic rhetoric after allegations surfaced of a gay affair. (I am not one who believes that politicians generally have an obligation to discuss their sexual orientation in public, but a man who had constructed his entire political career principally on arguing for compulsory sexual conformity, and who writes that "many homosexuals would mislead society into believing that three men, an armadillo and a houseplant create a functional family," has made his own private life fair game.) When Ireland and King began their legal crusade, several other states had similar prohibitions. However, a landmark ruling by the 11th Circuit Court of Appeals in 2008 overturned a Texas ban and likely invalidated a Mississippi statute as well. Similar laws have been struck down by courts in Kansas, Lousisiana and Colorado. A reasonable interpretation of other state statutes, including vague provisions in Virginia and Georgia, suggests that Alabama is now the only jurisdiction in the country where such toys are illegal.

Both the 5th Circuit and the Alabama Supreme Court rejected the claim that the sex ban either implicated a "fundamental right" under the 14th Amendment or failed a "rational basis" test for Constitutionality. Law Professor Eugene Volokh has suggested that the Supreme Court may not choose to hear the case, despite the split between the 5th and 11th Circuits, because the law may be viewed as "of comparatively minor practical importance and the sort of thing that some Justices might see as beneath the Court's dignity." To use the language of the late Justice Potter Stewart, it is merely "an uncommonly silly law" and not a threat to ordered liberty. However, many draconian laws may seem inconsequential until you are the one jailed or until your rights are denied. The reality is that so-called marital aids (personally, I prefer the term "marital substitutes") play an important role in the emotional lives of millions of Americans.

I cannot say whether more Alabama women own vibrators than own Bibles. If I were guessing, I would suspect that a majority derive more use out of the vibrators. Certainly more pleasure. Nor does there appear to be any remotely rational basis for keeping sex toys out of the hands of married adults, or single adults, or even children. Now that we are relatively confident that masturbation does not make little girls go blind, or cause palms to sprout hair, exposure to sex toys shouldn't harm them. On the list of items that I might not want children to be exposed to in stores--guns, matches, poisons, junk food--sex toys are way down the list. Of course, if you don't want your daughter to use a dildo, don't buy her one. Don't take her shopping. Lock her into a chastity belt and raise her inside a stone tower like a Medieval princess. It's a free country, after all. Alas, children are resourceful. The average nine-year-old in Alabama probably knows more about human sexuality that several members of the 5th Circuit Court of Appeals. More fifth graders can tell you what a vibrator does than can tell you what a Supreme Court justice does. Which is why a prohibition on widely-used (and relatively-intuitive) devices is about as irrational as legislation comes.

The brilliant and irreverent libertarian politician Loretta Nall spearheaded a campaign two years ago to mail sex toys to Attorney General Troy King. I'd like to make him a far better offer. MacArthur fellow Sarah Ruhl's brilliant new comedy, In the Next Room (or the Vibrator Play), opens on Broadway in November. The work, which premiered in Berkeley last winter, focuses on the origins of the vibrator as a medical device and its use to bring long-frigid Victorian Era wives to orgasm. Families will come to the show. So will tourists. Even Alabamans. They will enjoy themselves. I'd be thrilled if Attorney General King came to the opening as my guest. Not a date, just two grown men enjoying a lively, tasteful play about vibrators. We can even pick up a souvenir or two for Mrs. King, maybe something she can't buy in Alabama.