Sep. 19, 2012 - Issue #883: Best of Edmonton 2012
Laws south of the border take liberties in private sex lives
Every time I go to the USA for a sex toy show, I'm struck by how different our neighbours to the south are from us when it comes to sex and the law. I'm not saying that Canada gets it right all the time, but in the States there are some real conflicts between the right of government and the right to personal privacy and freedom—and it's getting worse.
In one of the seminars I attended, attorney Clyde DeWitt issued dire warning for those in the sex industry. DeWitt believes there is a battle brewing over sexual privacy and the law and he thinks it may come to a head after the next election.
At this point, Alabama is one of only two states where it remains illegal to sell adult toys. That law was challenged all the way to the federal Court of Appeals and was upheld by the Eleventh Circuit Court. They ruled that the state had a legitimate interest in preserving public morality. I met Sherri Williams, owner of the store that pursued that suit, at an event in 2009. After years of pursuing this issue to the highest court, she was shocked and frustrated that it ended as it did. Her stores in Alabama continue to operate, but each customer must fill out and sign a short questionnaire that indicates that the products they bought are required for medical purposes. Williams told me she has actually moved to Florida because she has been harassed and threatened in her home state just because she sells vibrators.
She was not expecting to lose because in a similar case, the Fifth Circuit Court ruled that the same precedent used in her case actually indicates that the state does not have the right to intervene in matters of personal sexual privacy. This ruling struck down the Texas law banning the sale of sex toys. The two opposing decisions created a split in the circuit courts over the meaning of the precedent case, Lawrence vs Texas. The Supreme Court could intervene to decide on the matter. The Supreme Court probably isn't really burning to get into a fight over dildos, but they may be interested in taking up the argument over the interpretation of Lawrence vs Texas, the case in which the Texas sodomy laws were ruled unconstitutional. Sitting Supreme Court Justices Clarence Thomas and Antonin Scalia both wrote dissenting opinions on that decision. Scalia has been very vocal about his support for laws that limit sexual freedom. He even seems to believe that masturbation should be illegal.
Of the current members of the Supreme Court, five have a record of conservative voting on social issues—no surprise that they were all appointed by either Ronald Reagan or George W Bush—although one of them, Anthony Kennedy, is considered more of a moderate. Ruth Bader Ginsburg, one of the most liberal justices, will likely retire in the next four years, leaving the appointment of the new justice up to the winner of this upcoming presidential election.
This was the crux of DeWitt's warning to the room of sex toy distributors and retailers. "If you want to keep your job and your business," he said, "Vote for Obama." DeWitt believes that Scalia is itching to reopen Lawrence vs Texas and will do exactly that if another conservative justice is appointed. If Lawrence vs Texas is overturned, it will certainly be an issue for toy sellers, but it will be much more of an issue for the American public as it will give states the right to once again make specific private sexual activities illegal.
They will be within their rights to come into a person's home and arrest them for getting a blow job, just as they did in the incident that sparked Lawrence vs Texas. Will it actually happen? No one can say for sure, but the idea that it's even possible is nothing short of terrifying.
Brenda Kerber is a sexual health educator who has worked with local not-for-profits since 1995. She is the owner of the Edmonton-based, sex-positive adult toy boutique the Traveling Tickle Trunk.
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