Sherri Williams v. Troy King

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
February 14, 2007
No. 06-11892 THOMAS K. KAHN
________________________ CLERK

D. C. Docket No. 98-01938-CV-5

SHERRI WILLIAMS,
B.J. BAILEY,
ALICE JEAN COPE,
JANE DOE,
DEBORAH L. COOPER,
BENNY COOPER,
DAN BAILEY,
JANE POE,
JANE ROE,

Plaintiffs-Appellants,

BETTY FAYE HAGGERMAKER, et al.,

Plaintiffs,

versus

TIM MORGAN,
in his official capacity as the
District Attorney of the County of
Madison Alabama,

Defendant,
TROY KING,
in his official capacity as the
Attorney General of Alabama,

Defendant-Appellee.

________________________

Appeal from the United States District Court
for the Northern District of Alabama
_________________________

(February 14, 2007)

Before DUBINA and WILSON , Circuit Judges, and HODGES,* District Judge.

WILSON, Circuit Judge:

This case comes to us for the third time, arising from a constitutional

challenge to a provision of the Alabama Code prohibiting the commercial

distribution of devices “primarily for the stimulation of human genital organs.”

Ala. Code § 13A-12-200.2(a)(1). The only question remaining before us is

whether public morality remains a sufficient rational basis for the challenged

statute after the Supreme Court’s decision in Lawrence v. Texas, 539 U.S. 558, 123

S. Ct. 2472, 156 L. Ed. 2d 508 (2003). The district court distinguished Lawrence

and held, following our prior precedent in this case, Williams v. Pryor, 240 F.3d

*
Honorable Wm. Terrell Hodges, United States District Judge for the Middle District of
Florida, sitting by designation.

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944 (11th Cir. 2001) (Williams II), that the statute survives rational basis scrutiny.

Because we find that public morality remains a legitimate rational basis for the

challenged legislation even after Lawrence, we affirm.

BACKGROUND

The American Civil Liberties Union (“ACLU”) 1 filed suit on behalf of

individual users and vendors of sexual devices2 to enjoin enforcement of Ala. Code

§ 13A-12-200.2(a)(1), which prohibits the distribution of “any device designed or

marketed as useful primarily for the stimulation of human genital organs.” 3

Plaintiffs in this case include both married and unmarried users of prohibited

sexual devices, as well as vendors of sexual devices operating both in typical retail

storefronts and in “tupperware”-style parties where sexual aids and novelties are

displayed and sold in homes. The stipulated facts establish that sexual devices

have many medically and psychologically therapeutic uses, recognized by

healthcare professionals and by the FDA. The statute exempts sales of sexual

1
“The ACLU” will be used to refer collectively to appellants, as that organization was
“the driving force” behind this litigation. Williams v. Att’y Gen. of Ala., 378 F.3d 1232, 1233 n.1
(11th Cir. 2004) (Williams IV)
2
We will use the shorthand term “sexual device” in place of the phrase “any device
designed or marketed as useful primarily for the stimulation of the human genital organs.”
3
The statute reads in pertinent part: “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.” Ala. Code § 13A-12-200.2(a)(1).

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devices “for a bona fide medical, scientific, educational, legislative, judicial, or law

enforcement purpose.” § 13A-12-200.4. Also, there are a number of other sexual

products, such as ribbed condoms and virility drugs, that are not prohibited by the

statute. The statute does not prohibit the use, possession, or gratuitous distribution

of sexual devices. See § 13A-12-200.2 (“for anything of pecuniary value”).

The ACLU has argued throughout this litigation that the statute burdens and

violates sexual-device users’ right to privacy and personal autonomy under the

Fourteenth Amendment. Alternatively, it has argued that there is no rational

relationship between a complete ban on the sale of sexual devices and a proper

legislative purpose.

Our second opinion in this case (Williams IV) provides a thorough summary

of the procedural history of the case:

Following a bench trial, the district court concluded that there
was no currently recognized fundamental right to use sexual devices
and declined the ACLU’s invitation to create such a right. Williams v.
Pryor, 41 F. Supp. 2d. 1257, 1282-84 (N.D. Ala. 1999) (Williams I).
The district court then proceeded to scrutinize the statute under
rational basis review. Id. at 1284. Concluding that the statute lacked
any rational basis, the district court permanently enjoined its
enforcement. Id. at 1293.
On appeal, we reversed in part and affirmed in part. [Williams
II, 240 F.3d 944.] We reversed the district court’s conclusion that the
statute lacked a rational basis and held that the promotion and
preservation of public morality provided a rational basis. Id. at 952.
However, we affirmed the district court’s rejection of the ACLU’s
facial fundamental-rights challenge to the statute. Id. at 955. We then

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 remanded the action to the district court for further consideration of
the as-applied fundamental-rights challenge. Id. at 955.
On remand, the district court again struck down the statute.
Williams v. Pryor, 220 F. Supp. 2d 1257 (N.D. Ala. 2002) (Williams
III). On cross motions for summary judgment, the district court held
that the statute unconstitutionally burdened the right to use sexual
devices within private adult, consensual sexual relationships. Id.
After a lengthy discussion of the history of sex in America, the district
court announced a fundamental right to “sexual privacy,” which,
although unrecognized under any existing Supreme Court precedent,
the district court found to be deeply rooted in the history and
traditions of our nation. Id. at 1296. The district court further found
that this right “encompass[es] the right to use sexual devices like the
vibrators, dildos, anal beads, and artificial vaginas” marketed by the
vendors involved in this case. Id. The district court accordingly
applied strict scrutiny to the statute. Id. Finding that the statute failed
strict scrutiny, the district court granted summary judgment to the
ACLU and once again enjoined the statute’s enforcement. Id. at 1307.

Williams v. Att’y Gen. of Ala. 378 F.3d 1232, 1234 (11th Cir. 2004) (Williams IV).

In Williams IV, we again reversed the judgment of the district court, holding

that there was no pre-existing, fundamental, substantive-due-process right to sexual

privacy triggering strict scrutiny. Id. at 1238. In so holding, we determined that

Lawrence, which had been decided after the district court’s decision in Williams

III, did not recognize a fundamental right to sexual privacy. Id. Furthermore, we

declined to recognize a new fundamental right to use sexual devices. Id. at 1250.

With strict scrutiny off the table, we remanded the case for further proceedings

consistent with the opinion. Id. We advised that on remand, the district court

should “examine whether our holding in Williams II that Alabama’s law has a

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rational basis (e.g., public morality) remains good law” after Lawrence overruled

Bowers v. Hardwick, 478 U.S. 186, 106 S. Ct. 2841, 92 L. Ed. 2d 140 (1986). Id.

at 1238 n.9 (internal quotations omitted); see also id. at 1259 n.25 (Barkett, J.,

dissenting) (“On remand, the district court must consider whether our holding in

Williams II . . . remains good law now that Bowers has been overruled.”). We thus

“save[d] for a later day” the question of whether public morality still serves as a

rational basis for legislation after Lawrence. Id. at 1238 n.9.

On remand, the district court decided “not to invalidate the Alabama law in

question here simply because it is founded on concerns over public morality.”

Williams v. King, 420 F. Supp. 2d 1224, 1250 (N.D. Ala. 2006) (Williams V). In so

concluding, the district court opined: “To hold that public morality can never serve

as a rational basis for legislation after Lawrence would cause a ‘massive disruption

of the social order,’ one this court is not willing to set into motion.” Id. at 1249-50

(quoting Lawrence, 539 U.S. at 590, 123 S. Ct. 2491 (Scalia, J., dissenting)). The

district court also addressed “whether this case fits squarely within the mold of

Lawrence, such that Lawrence’s holding—that public morality was not a

sufficiently rational basis to support the Texas [sodomy statute]—applies to strike

down the Alabama law here.” Id. at 1250. The district court concluded that the

cases are distinguishable, and Lawrence does not compel striking down the

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Alabama law in this case. 4 Id. at 1253-54

The ACLU now appeals the district court’s decision in Williams V granting

the State’s summary judgment motion and denying the ACLU’s summary

judgment motion.

STANDARD OF REVIEW

We review a summary judgment decision de novo and apply the same legal

standard that bound the district court. Cruz v. Publix Super Markets, Inc., 428 F.3d

1379, 1382 (11th Cir. 2005).

DISCUSSION

In Williams IV we held that the Supreme Court in Lawrence “declined the

invitation” to recognize a fundamental right to sexual privacy, which would have

compelled us to employ strict scrutiny in assessing the constitutionality of the

challenged statute. Williams IV, 378 F.3d at 1236. Thus, because there is no

fundamental right at issue, we apply rational basis scrutiny to the challenged

statute. See Romer v. Evans, 517 U.S. 620, 631, 116 S. Ct. 1620, 1627, 134 L. Ed.

2d 855 (1996) (“[I]f a law neither burdens a fundamental right nor targets a suspect

4
The district court distinguished this case from Lawrence in part on the basis that
Lawrence implicates equal protection concerns—the Texas statute targeted a “discrete and
insular minority,” while this statute does not. Williams V, 420 F. Supp. at 1250-53. We need not
address whether the district court is correct that Lawrence employs an equal protection analysis.
Here, we apply a substantive due process analysis and distinguish Lawrence on other grounds.

7
class, we will uphold the [law] so long as it bears a rational relation to some

legitimate end.”). For the reasons stated below, we find that the State’s interest in

preserving and promoting public morality provides a rational basis for the

challenged statute.

Rational basis review is “a highly deferential standard that proscribes only

the very outer limits of a legislature’s power.” Williams II, 240 F.3d at 948. A

statute is constitutional under rational basis scrutiny so long as “there is any

reasonably conceivable state of facts that could provide a rational basis for the

[statute].” FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313, 113 S. Ct. 2096,

2101, 124 L. Ed. 2d 211 (1993) (emphasis added). Furthermore, the Supreme

Court has held:

On rational-basis review, . . . a statute . . . comes to us bearing a strong
presumption of validity, and those attacking the rationality of the
legislative classification have the burden to negative every
conceivable basis which might support it. Moreover, because we
never require a legislature to articulate its reasons for enacting a
statute, it is entirely irrelevant for constitutional purposes whether the
conceived reason for the challenged distinction actually motivated the
legislature.

Id. at 314-315, 113 S. Ct. at 2101-02 (internal quotation marks and citations

omitted). In addition, state legislatures are “allowed leeway to approach a

perceived problem incrementally, even if its incremental approach is significantly

over-inclusive or under-inclusive.” Williams II, 240 F.3d at 948 (internal quotation

8
marks omitted).

We previously addressed the constitutionality of the challenged Alabama

law under rational basis scrutiny and held that “[t]he State’s interest in public

morality is a legitimate interest rationally served by the statute.” Id. at 949. We

noted that “[t]he crafting and safeguarding of public morality has long been an

established part of the States’ plenary police power to legislate and indisputably is

a legitimate government interest under rational basis scrutiny.” Id. at 949; see also

Barnes v. Glen Theatre, Inc., 501 U.S. 560, 569, 111 S. Ct. 2456, 2462, 115 L. Ed.

2d 504 (1991) (citing Bowers, 478 U.S. at 196, 106 S. Ct. at 2846; Paris Adult

Theatre I v. Slaton, 413 U.S. 49, 61, 93 S. Ct. 2628, 2637, 37 L. Ed. 2d 446 (1973);

Roth v. United States, 354 U.S. 476, 485, 77 S. Ct. 1304, 1309, 1 L. Ed. 2d 1498

(1957)). Further, we held that “a statute banning the commercial distribution of

sexual devices is rationally related to this interest.” Williams II, 240 F.3d at 949.

Ordinarily, we would be bound by our holding in Williams II according to

the law-of-the-case doctrine. Under the law-of-the-case doctrine, “the findings of

fact and conclusions of law by an appellate court are generally binding in all

subsequent proceedings in the same case in the trial court or on a later appeal.”

This That & The Other Gift And Tobacco, Inc. v. Cobb County, Ga., 439 F.3d

1275, 1283 (11th Cir. 2006) (per curiam) (internal quotation marks omitted).

9
When deciding an issue of law, the only means by which the law-of-the-case

doctrine may be overcome is if “(1) our prior decision resulted from a trial where

the parties presented substantially different evidence from the case at bar; (2)

subsequently released controlling authority dictates a contrary result; or (3) the

prior decision was clearly erroneous and would work manifest injustice.”

Alphamed, Inc. v. B. Braun Med., Inc., 367 F.3d 1280, 1286 (11th Cir. 2004); see

also This That & The Other, 439 F.3d at 1283. The ACLU impliedly argues that

Lawrence is controlling authority that compels a contrary result, because it dictates

that public morality no longer constitutes a rational basis for government intrusion

on private decisions about sexual intimacy—which is precisely what it argues the

Alabama statute does.5

In Lawrence the Supreme Court held that the Texas sodomy statute

challenged in that case “further[ed] no legitimate state interest which can justify its

intrusion into the personal and private life of the individual.” 539 U.S. at 578, 123

S. Ct. at 2484. In so holding, the Lawrence majority relied on Justice Stevens’s

analysis in his Bowers dissent: “[T]he fact that the governing majority in a State

5
Judge Barkett expressly makes the argument that the law-of-the-case doctrine does not
apply to Williams II because Lawrence is subsequently released controlling authority dictating a
contrary result. See Williams IV, 378 F.3d at 1259 n.25 (Barkett, J., dissenting); see also id. at
1259 (Barkett, J., dissenting) (“Williams II . . . rel[ied] on the now defunct Bowers to conclude
that public morality provides a legitimate state interest. . . . Obviously now that Bowers has been
overruled, this proposition is no longer good law and we must, accordingly, revisit our holding
in Williams II.”).

10
has traditionally viewed a particular practice as immoral is not a sufficient reason

for upholding a law prohibiting the practice . . . .” Id. at 577, 123 S. Ct. at 2483

(quoting Bowers, 478 U.S. at 216, 106 S. Ct. at 2857 (Stevens, J. dissenting)). The

Court applied Justice Stevens’s analysis in overruling Bowers and in holding that

the Texas sodomy statute was unconstitutional.

The ACLU argues that the Alabama statute at issue in this case, like the

Texas sodomy statute at issue in Lawrence, intrudes into personal and private

decisions about sexual intimacy. It argues that “this law intrudes just as deeply

into the sphere of individual decision-making about sexuality as the law struck

down in Lawrence.” Appellant’s Br. 29. Thus, the ACLU argues, this case is

indistinguishable from Lawrence—just as in that case, in this case there is no

legitimate state interest, including public morality, that supports the challenged

Alabama statute. Therefore, it argues that the statute cannot survive constitutional

scrutiny under Lawrence.

However, while the statute at issue in Lawrence criminalized private sexual

conduct, the statute at issue in this case forbids public, commercial activity. To the

extent Lawrence rejects public morality as a legitimate government interest, it

invalidates only those laws that target conduct that is both private and non-

commercial. Lawrence, 439 U.S. at 578, 123 S. Ct. at 2484 (“The present case

11
does not involve minors. It does not involve persons who might be injured or

coerced or who are situated in relationships where consent might not easily be

refused. It does not involve public conduct or prostitution.”) (emphasis added).

Unlike Lawrence, the activity regulated here is neither private nor non-

commercial.6

This statute targets commerce in sexual devices, an inherently public

activity, whether it occurs on a street corner, in a shopping mall, or in a living

room. As the majority in Williams IV so colorfully put it: “There is nothing

‘private’ or ‘consensual’ about the advertising and sale of a dildo.” 378 F.3d at

1237 n.8; see also id. at 1241. The challenged statute does not target possession,

use, or even the gratuitous distribution of sexual devices. In fact, plaintiffs here

continue to possess and use such devices. States have traditionally had the

authority to regulate commercial activity they deem harmful to the public. See,

e.g., Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 456, 98 S. Ct. 1912, 1919, 56

L. Ed. 2d 444 (1978) (“[T]he State does not lose its power to regulate commercial

6
The ACLU emphasizes language in Williams IV where we stated that “for purposes of
constitutional analysis, restrictions on the ability to purchase an item are tantamount to
restrictions on the use of that item.” 378 F.3d at 1242. However, the Williams IV court
connected the sale of sexual devices with their use only in the limited context of framing the
scope of the liberty interest at stake under the fundamental rights analysis of Washington v.
Glucksberg, 521 U.S. 702, 117 S. Ct. 2258, 138 L. Ed. 2d 772 (1997). Williams IV, 378 F.3d at
1242. We were clear in Williams IV, that the challenged statute did not implicate private or
consensual activity. Id. at 1237 n.8, 1241.

12
activity deemed harmful to the public whenever speech is a component of that

activity.”). Thus, while public morality was an insufficient government interest to

sustain the Texas sodomy statute, because the challenged statute in this case does

not target private activity, but public, commercial activity, the state’s interest in

promoting and preserving public morality remains a sufficient rational basis.

Furthermore, we do not read Lawrence, the overruling of Bowers, or the

Lawrence court’s reliance on Justice Stevens’s dissent, to have rendered public

morality altogether illegitimate as a rational basis. The principle that “[t]he law . . .

is constantly based on notions of morality,” Bowers, 478 U.S. at 196, 106 S. Ct. at

2846, was not announced for the first time in Bowers and remains in force today.

As we noted in Williams IV, the Supreme Court has affirmed on repeated occasions

that laws can be based on moral judgments. Williams IV, 378 F.3d at 1238 n.8; see

Barnes, 501 U.S. at 569, 111 S. Ct. at 2462 (upholding a public indecency statute,

stating, “[t]his and other public indecency statutes were designed to protect morals

and public order. The traditional police power of the States is defined as the

authority to provide for the public health, safety, and morals, and we have upheld

such a basis for legislation.”); id. (noting that “a legislature could legitimately act .

. . to protect ‘the social interest in order and morality’”); Gregg v. Georgia, 428

U.S. 153, 183, 96 S. Ct. 2909, 2930, 49 L. Ed. 2d 859 (1976) (upholding the death

13
penalty, noting that “capital punishment is an expression of society’s moral outrage

at particularly offensive conduct”); Paris Adult Theatre I, 413 U.S. at 61, 93 S. Ct.

at 2637 (holding that Georgia had a legitimate interest in regulating obscene

material because the legislature “could legitimately act . . . to protect ‘the social

interest in order and morality’”) (quoting Roth, 354 U.S. at 485, 77 S. Ct. at 1309);

United States v. Bass, 404 U.S. 336, 348, 92 S. Ct. 515, 522, 30 L. Ed. 2d 488

(1971) (noting that “criminal punishment usually represents the moral

condemnation of the community”).

Also, we have discussed the post-Lawrence viability of public morality as a

rational basis for legislation with approval. See Lofton v. Sec’y of the Dept. of

Children and Family Servs., 358 F.3d 804, 819 n.17 (2004). In Lofton, upholding

a law prohibiting homosexual couples from adopting, we indicated that public

morality likely remains a constitutionally rational basis for legislation:

Florida also asserts that the statute is rationally related to its
interest in promoting public morality both in the context of child
rearing and in the context of determining which types of households
should be accorded legal recognition as families. Appellants respond
that public morality cannot serve as a legitimate state interest. . . . [I]t
is unnecessary for us to resolve the question. We do note, however,
the Supreme Court’s conclusion that there is not only a legitimate
interest, but a substantial government interest in protecting order and
morality, and its observation that [i]n a democratic society
legislatures, not courts, are constituted to respond to the will and
consequently the moral values of the people.

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Id., 358 F.3d at 819 n.17 (internal quotations and citations omitted). We have also

noted: “One would expect the Supreme Court to be manifestly more specific and

articulate than it was in Lawrence if now such a traditional and significant

jurisprudential principal has been jettisoned wholesale . . . .” Williams IV, 378

F.3d at 1238 n.8.

Accordingly, we find that public morality survives as a rational basis for

legislation even after Lawrence, and we find that in this case the State’s interest in

the preservation of public morality remains a rational basis for the challenged

statute. By upholding the statute, we do not endorse the judgment of the Alabama

legislature. As we stated in Williams II:

However misguided the legislature of Alabama may have been in
enacting the statute challenged in this case, the statute is not
constitutionally irrational under rational basis scrutiny because it is
rationally related to the State’s legitimate power to protect its view of
public morality. “The Constitution presumes that . . . improvident
decisions will eventually be rectified by the democratic process and
that judicial intervention is generally unwarranted no matter how
unwisely we may think a political branch has acted.” Vance v.
Bradley, 440 U.S. 93, 97, 99 S. Ct. 939, 942-943, 59 L. Ed. 2d 171
(1979). This Court does not invalidate bad or foolish policies, only
unconstitutional ones; we may not “sit as a super-legislature to judge
the wisdom or desirability of legislative policy determinations made
in areas that neither affect fundamental rights nor proceed along
suspect lines.” New Orleans v. Dukes, 427 U.S. 297, 303, 96 S. Ct.
2513, 2517, 49 L. Ed. 2d 511 (1976).

Williams II, 240 F.3d at 952.

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 CONCLUSION

For the foregoing reasons, we reaffirm our holding in Williams II that

the challenged statute is constitutional and we affirm the judgment of the

district court.

AFFIRMED.

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