Fri., May 23, 2014 7:55am (EDT)

Sandy Springs Sex Toys Ban Could End Up In U.S. Supreme Court
By Adam Ragusea
Updated: 2 months ago

MACON, Ga.  —  
Federal courts are of two minds on whether people have a right to buy and sell sex toys. (Photo: <a href="https://www.flickr.com/photos/mloesjeenzo/">Marloes via Flickr</a>)
Federal courts are of two minds on whether people have a right to buy and sell sex toys. (Photo: Marloes via Flickr)
Residents of the Atlanta suburb of Sandy Springs have been surprised to learn in recent days that the sale of sex toys is illegal in their city.

Melissa Davenport is suing the city over the 2009 ordinance.

She told WSB-TV that local politicians who wrote the law probably weren't considering people like her. Davenport suffers from nerve damage from multiple sclerosis.

"They have this dirty mind about how you're gonna use it. People really do need devices like this, because they need it for health reasons, and to have a healthy intimate life with their spouse," she told the TV station.

Sandy Springs officials say they won't comment on a pending legal matter, but their attorneys will respond to the lawsuit in coming weeks.

The outcome of the coming legal fight is uncertain, because the courts are actually of two minds on whether people have a right to buy and sell sex toys, said Scott Titshaw, a law professor at Mercer University in Macon.

There have been two U.S. Court of Appeals cases on the subject in recent years, one the 11th Circuit (which includes Georgia) that upheld Alabama’s statewide ban on sex toys, and one in the neighboring 5th Circuit, which struck down a similar ban in Texas.

“Both [rulings] focused on the due process clause of the Fourteenth Amendment, but they parsed the Lawrence vs. Texas case – the Texas sodomy case – in very different ways,” Titshaw said.

The U.S. Supreme Court struck down sodomy bans in the 2003 case, and in doing so, affirmed “the idea of liberty or privacy to make personal decisions about one’s own sex life,” said Titshaw.

But the 5th and 11th Circuit courts’ subsequent split on their interpretation of Lawrence as it applies to sex toys means that the Sandy Springs case could eventually end up in the Supreme Court, Titshaw said.

In that event, Titshaw thinks the court might strike down the Sandy Springs ordinance.

“If you read between the lines in Lawrence, I think Lawrence really does tend to support ... the 5th Circuit opinion in the case, over the 11th Circuit opinion,” he said.

The Lawrence ruling states that “morality alone does not constitute a sufficient rationale to support a law,” Titshaw said.