Is Banning Sex Toys Constitutional? Courts Disagree

by Brian Doherty

Eugene Volokh forsees the highest court in the land contemplating the legality of state and local bans on any "device designed or marketed as useful primarily for the stimulation of human genital organs."

As Volokh explains, the Fifth and 11th federal appeals court circuits are already in disagreement on the constitutionality of such bans, and he sees it as likely that the losers in an Alabama case that upheld a state ban on selling dildos last week will seek review from the Supremes.

Here's what Volokh thinks will happen if the Court decides to take up the case (a matter on which he's less certain), and he forsees a sad day for human genitals seeking stimulation everywhere:

The Supreme Court will conclude the statute is constitutional...The vote will be at least 6-3, because even some of the liberals on the Court — especially Justice Breyer — and moderate conservative Justice Kennedy will think that the courts' power to recognize unenumerated rights should be saved for rights (e.g., abortion, contraception, sexual intimacy, parental rights, right to refuse medical treatment, right to live with close family members, and the like) that are more important in most of their exercisers' lives. And this is so even though the government's arguments for the practical benefits of the law seem comparatively weak, or as to the supposed immorality of the conduct, largely conclusory. The majority on the Court will likely conclude that such conclusory moral arguments are adequate except when something more important to most people's lives is at stake (since probably no Justice accepts 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's last point, on Supreme Court justices respect for unenumerated rights to just not be bossed around for no goddamn good reason, is true, and sad.