11th Circuit to Rehear Challenge to Ga. City's Sex Toy Ban

Mar 17, 2017 9:59 AM PST

ATLANTA — The 11th U.S. Circuit Court of Appeals plans to hold an en banc rehearing on a challenge to the city of Sandy Springs’ sex toy ordinance that it previously upheld.

The city, a suburb of Atlanta, enacted the ordinance in May 2004, prohibiting the open display of vibrators and sex toys by retailers. The law also requires a doctor’s prescription to purchase them.

The 11th Circuit — holding jurisdiction over federal cases originating in the states of Alabama, Florida and Georgia — did not explain its rationale for the en banc rehearing.

The legal challenge was made by the adult stores Flanigan’s and Inserection, which sought to sell the banned sex toys and novelties, along with Melissa Davenport, who suffers from multiple sclerosis and said she uses sexual toys with her husband to facilitate intimacy, and Marshall Henry, an artist who uses the devices 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 sex toy ban places a burden on that right.

The appellants argued the ban violated the due process clause of the 14th Amendment of the Constitution.  

“The appellants contend that they have a fundamental right to engage in acts of private, consensual sexual intimacy, and that the ordinance burdens this right,” the panel wrote. “The city responds that this claim is foreclosed by our prior holding in Williams IV.”

The appeals court ruled that its prior holding in Williams v. Attorney General (Williams IV) took precedence.

In Williams IVthe appellate court 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.

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