Adult Stores Seek Rehearing in Sex Toy Ban Case

Aug 31, 2016 11:02 AM PST

ATLANTA — The 11th U.S. Circuit Court of Appeals has been asked to rehear en banc a decision made earlier this month that upheld a lower court's dismissal of two complaints that challenged the constitutionality of the city of Sandy Springs’ ordinance prohibiting the sale of obscene material.

The petition to rehear the case was made last week by the adult stores Flanigan’s and Inserection, which sought to sell the banned sex toys and novelties in Sandy Springs, Ga., along with Melissa Davenport, who suffers from multiple sclerosis and uses sexual toys with her husband to facilitate intimacy, and Marshall Henry, an artist who uses the sex toys in his artwork.

Davenport and Henry contend they have a fundamental right to engage in acts of private, consensual sexual intimacy and said the Sandy Springs ban places a burden on that right.

The appellants, through their attorneys, said that the appeals court should vacate its prior opinion, upholding Sandy Springs ban on the sale of sexually explicit merchandise, because its previous ruling conflicts with U.S. Supreme Court precedent, as well as judicial precedents around the country.

The 11th Circuit, which has jurisdiction over federal cases originating in the states of Alabama, Florida and Georgia, earlier this month ruled that its prior holding in Williams v. Attorney General (Williams IV) took precedence, and ruled Sandy Springs' ban legal.

In Williams IV, the appellate court in 2004 upheld an Alabama law against the sale of sex toys, saying the Constitution does not protect the right to buy, sell and use sex toys and other explicit novelty items.

The appellants’ petition to the 11th Circuit, like other legal challenges, said that the challenged ordinance burdens the rights of adults to engage in “private, consensual sexual intimacy.”

“Hemmed in by a divided 2004 opinion of this court, the panel in this case felt constrained to follow the court’s prior precedent,” the appellants’ petition said. “That opinion, Williams, has not stood the test of time — the opinion is irreconcilable with recent opinions of the U.S. Supreme Court.”

“While the panel in this case felt powerless to overrule an opinion of a prior panel, the panel ‘encouraged’ appellants to ask this court to rehear the matter en banc,” the petition said. “In light of the U.S. Supreme Court’s recent opinions and contrary appellate authority, Appellants respectfully suggest that this court revisit its 2004 opinion and recognize that the due process clause protects consenting adults’ right to private intimacy.”

At post time, the 11th Circuit has not yet decided on the disposition of the petition.

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