Brian Alexander wrote in America Unzipped: In Search of Sex and Satisfaction,
“I reckoned that contrary to what we have been told, American sex, at least in practice doesn’t have a political ideology or even a religious one, though noisy combatants keep trying to impose both. The Left is just as guilty of this as the Right.”
Although the first amendment of the U.S. Constitution protects the rights of adult stores, these businesses have been under attack for decades and are now controlled by zoning laws within a municipality today (Christiansen 1988, 695-696). The United States Supreme Court has vaguely left it up to state and local governments through several cases to create and enforce laws on the distribution of sex toys. Because these regulations are left up to states and municipalities, there are inconsistencies within the laws of each state. As of now Alabama and Georgia are the only states that have bans on obscene devices unless a doctor writes a prescription or if stores brand sex toys as “novelties.” Is it better for these laws to be left up to the states? If the Supreme Court ever ruled on obscene devices, all states must enforce that ruling.
So…let’s examine the acceptance of dildos, vibrators, and other accouterments, by briefly examining obscenity laws set forth by Supreme Court, and its effects on privacy and equal protection of individuals who wish to commercially distribute sex toys and those who use them to achieve orgasm.
“Hysteria” dates back to 2000 B.C.E., and, during the 20th century, was widely thought of as a medical condition. But in the 1920s, the vibrator began to appear in pornographic films as a device for masturbation. In addition, vibrators were marketed as a normal household item. By 1930, vibrators no longer appeared in catalogs (Glover 2010, 557-561). Then in 1952, the American Medical Association no longer acknowledged Hysteria as an ailment (Maines 1999, 3). After that, they disappeared.
The Sexual Revolution
Once “Hysteria” was no longer recognized as a medical disorder, purchasing sex toys went underground until the 1960s when they began to appear in catalogs as non-medical devices (Maines 1999; Glover 2010). This had much to do with the Sexual Revolution from the 1960s to the 1980s, a time when gender roles were rejected.
The 1st Amendment
Obscenity is unprotected by the First Amendment (Roth v. United States 1957) and the United States Supreme Court has had a difficult time defining what is “obscene” (Chemerinsky 2005, 1202).
The U.S. Supreme Court made a series of rulings on obscenity in the 1970s. The most notable case for our purposes is Miller v. California (1973). Although Miller (1973) reinforced that obscenity is unprotected under the First Amendment, it did provide 3 criteria to measure whether material was, indeed, “obscene”:
- Whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest;
- Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by state law; and
- Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value
Furthermore, the Court explained:
“We emphasize that it is not our function to propose regulatory schemes for the states. That must await their concrete legislative efforts.” (Miller 1973)
Municipal Zoning and the 1st Amendment
After the Supreme Court handed down the Miller decision, the zoning of adult businesses became a community issue. States decided it was best to only allow adult businesses to operate in certain “zones” of the community. The city of Detroit created an ordinance that prohibited an adult theatre from being within 1,000 feet of any two other “regulated uses” or within 500 feet of a residential area (Young v. American Mini Theatre, Inc. 1976).
It was such a concern, that the Supreme Court ruled in Young (1976) the city of Detroit had every right to regulate the placement and operation of the adult theatre due to its content – as well as 10 other “regulated uses.” Specifically, the Court said,
“The term “regulated uses” applies to 10 different kinds of establishments in addition to adult theaters, including adult book stores, cabarets, bars, taxi dance halls, and hotels. If the theater is used to present “material distinguished or characterized by an emphasis on matter depicting . . . `Specified Sexual Activities’ or `Specified Anatomical Areas'” it is an “adult” establishment.” (Young v. American Mini Theatre, Inc. 1976)
Criteria for Specified Sexual Activities:
- Human Genitals in a state of sexual stimulation or arousal
- Acts of human masturbation, sexual intercourse, or sodomy
- Fondling or other erotic touching of human genitals, public region, buttock or female breast
Criteria for Specified Anatomical Areas:
- Less than completely and opaquely covered: (a) human genitals, pubic region, (b) buttock, and (c) female breast below a point immediately above the top of the areola; and
- Human male genitals in a discernibly turgid state, even if completely and opaquely covered.
When these business have a significant amount of inventory that depicts Specified Sexual Activities or Specified Anatomical Areas, it is classified as “adult.”
A decade later, the city of Renton, Washington had a zoning ordinance further prohibiting adult theatres from operating within 1,000 feet of a residential area, church, park or school. The U.S. Supreme Court, relying on Young (1976). ruled in the City of Renton v. Playtime Theatres, Inc. (1986), ruled that adult businesses can be regulated based on their “secondary effects,” such as crime – not the content (Christiansen 1998, 709).
The bottom line is, state and local governments have the right to decide where adult stores can operate within a city and how much inventory a store can sell. For example, Adam & Eve face zoning issues every time they open a franchise. They apply for a specialty retail license instead of a sexually oriented business license because a certain percentage of their inventory is defined as “adult.” This is how most adult stores get around the zoning issues. Depending on the municipality, the percentage of items defines a sexually oriented business. So, if 30% or less of the products are sex toys, then it is not a sexually oriented business? Does 31% make a difference? Regardless of the percentage of sex toys sold in a store, a dildo is a dildo.
The Effects of “Secondary-Effects”
The secondary-effects have allowed some states to ban the sell of sex toys.
In 2003, Joanne Webb was arrested for violating Texas obscenity laws that were passed by the legislature in 1973. Back then, Texas allowed the sale of sex toys as long as they were called “novelties” but is was against the law to market them directly as sex toys, and it was against the law to show how to use them. It was well known in her community that she sold sex toys. So well known that her and her family were asked to leave two churches because “they didn’t want to comply with what was really Christian conduct and that is why they were asked to leave those churches.” According to a pastor’s wife who counseled some women who purchased sex toys from Webb, the toys were causing problems in their marriages.
Webb was a representative for Passion Parties and she was arrested when two undercover police officers approached her as a couple. She explained how to use the sex toys and that’s what got her in trouble.
Two local adult stores in Austin, Le Rouge Boutique and Dreamer’s, as well as chain retailer Adam and Eve, challenged the constitutionality of the law. Finally, in 2008, the 5th Circuit Court of Appeals ruled that the law violated the Constitution’s 14th Amendment, citing Lawrence v. Texas (2003),
“Just as in Lawrence, the State here wants to use its laws to enforce a public moral code by restricting private intimate conduct. The case is not about public sex. It is not about controlling commerce in sex. It is about controlling what people do in the privacy of their own homes because the State is morally opposed to a certain type of consensual private intimate conduct. This is an insufficient justification for the statute after Lawrence.”
Sherri Williams wanted to open another adult store. However, in 1998 the Alabama Legislature passed a statute, as part of the Anti-Obscenity Enforcement Act, that prohibited the sale of sex toys. The statute specifically read,
“It shall be unlawful for any person to knowingly distribute, possess with intent to distribute, or offer or agree to distribute any obscene material or any device designed or marketed as useful primarily for the stimulation of human genital organs for any thing of pecuniary value.”
In 1999, with the help of the ACLU, Williams filed suit and won in district court. The Attorney General actually argued, “This case is about the `right’ to purchase a product to use in pursuit of having an orgasm.” So the state of Alabama believed it had a constitutional right to orgasms.
Anyway, the state appealed to the 11th Circuit Court of Appeals and Williams lost. The United States Supreme Court refused to hear the case in 2007, so the law remains active.
Williams found a loophole in the law, which allows the sale of sex toys if there is a need for “medical, scientific, educational, legislative, judicial, or law enforcement.” She opened Pleasures Romance Boutique (link) in 2010, the country’s first drive-through adult store. People fill out a questionnaire about health reasons in order to purchase a sex toy.
Most of the peach state allows the sale of sex toys, but recently the media has reported Georgia forbids the distribution of sex toys – even when purchasing online! However, you can buy one in stores that classify them as “novelties” or if a doctor is kind enough to write you a prescription – that is hysterical!
Melissa Davenport of Sandy Springs suffers from multiple sclerosis, which attacks the nervous system, and it began to significantly affect her sex life. The lack of intimacy put pressure on the marriage. No doctor would prescribe her a sex toy but she purchased one and it saved the marriage. She decided to file suit against the city’s ordinance, questioning its constitutionality on the grounds of privacy and equal protection. Perhaps we will see an outcome similar to Alabama’s.
Also, many news outlets are pointing out that in Georgia, guns are legal to carry in “bars, nightclubs, schools, and certain government buildings.” So, I ask you, which is more dangerous? Strapping a pistol or a dildo in my gun holster?
Christiansen, David J. 1988. “Zoning and the First Amendment Rights of Adult Entertainment.” Valparaiso University Law Review 22(3): 695-724.
Glover, Richard. 2010. “Can’t Buy a Thrill: Substantive Due Process, Equal Protection, and Criminalizing Sex Toys.” The Journal of Law and Criminology 100(2): 555-598.
Maines, Rachel P. 1999. The Technology of an Orgasm: “Hysteria,” the Vibrator, and Women’s Sexual Satisfaction. Baltimore, MD: The John Hopkins University Press.