http://www.msnbc.msn.com/id/18663903/

WASHINGTON – The owner of adult stores in Alabama asked the Supreme Court on Monday to throw out a state ban on selling sex toys, calling it an unconstitutional intrusion into the bedroom.

If the court declines to take the case — as it did in 2005 — Alabama residents shopping for sexual novelties could soon have to look outside the state’s borders.

“A person should have the right to make their own decision to explore their sexual boundaries outside what some government official says is moral,” Sherri Williams said outside the Supreme Court before filing the appeal.

http://www.law.com/jsp/article.jsp?id=1090180191546

Americans do not have a fundamental right to sexual privacy, a 2-1 decision of the 11th U.S. Circuit Court of Appeals said on Wednesday.

The split panel upheld an Alabama law — nearly identical to one in Georgia — that made the sale of sex toys a crime punishable by up to a year in prison.

The decision extends an emerging division in the court over sexual rights, with Judges Stanley F. Birch Jr. and Rosemary Barkett leading opposing factions.

USERS, SELLERS OF TOYS SUE

Just after the law went into effect in 1998, a group of plaintiffs sued then-Alabama Attorney General William H. Pryor Jr., who is now an 11th Circuit judge. They claimed the new law violated a host of civil rights, including ones guaranteeing free expression, due process and safety from unreasonable government searches of homes.

The plaintiffs included six people who used sex devices — some on the advice of therapists as a means to combat depression and improve their marriages. One woman used a device because she suffers from a chronic disability that makes intercourse painful.

Two sellers of the sex devices, one who owns two “Pleasures” stores in the state and the other who conducts “Tupperware-style” parties to sell the products, also were plaintiffs.

A federal trial judge in 1999 found the law unconstitutional, but an 11th Circuit panel vacated the ruling, seeking a broader examination of how sexual laws had been enforced over time. After concluding that sexual privacy was “deeply rooted” in American legal tradition and practice, the trial judge again found the law unconstitutional.

DECISION BELONGS TO ALABAMA

But on a second review before the 11th Circuit, Birch repeated his argument from the Florida gay adoption case, writing that the U.S. high court did not address the issue of sexual privacy in Lawrence last year.

He also reiterated a point conservatives make in the culture wars throughout the country — that judges should not become embroiled in making social policy. Without a fundamental right at stake, Birch wrote, only the people of Alabama could decide “that a prohibition of sex toys is misguided, or ineffective, or just plain silly … .”