In 1568 Montgomery Highway v. City of Hoover, the Supreme Court of Alabama this week upheld the constitutionality of an Alabama statute prohibiting the sale of "any device designed ... primarily for the stimulation of human genital organs." The law was targeted primarily at the sale of such objects as vibrators and dildos.
In a thoughtful opinion, the Alabama court concluded that because the United States Supreme Court has not yet expressly recognized a constitutional right to sexual freedom, analogous to the freedom of speech, the freedom of religion, or the freedom to use contraceptives, the law must be upheld as long as it has a rational justification. And, applying that test, the court held that the statute could rationally be justified as an effort to enforce the "public morality."
The Alabama court's understanding of the governing precedents of the United States Supreme Court is reasonable. Although the Supreme Court has held that the government cannot constitutionally prohibit the sale of contraceptives, it grounded that doctrine in the fundamental right of individuals to decide for themselves whether to "bear or beget" a child. That doctrine concerns reproductive rather than sexual freedom.
And although the Supreme Court has held that the government cannot constitutionally prohibit private homosexual conduct, it arguably grounded that doctrine in part on concerns about discrimination against homosexuals, rather than on a doctrine of sexual freedom.
Thus, it was reasonable for the Alabama Supreme Court to conclude that the United States Supreme Court has not yet expressly recognized a right of sexual freedom.
At the same time, though, the Alabama Supreme Court acknowledged that a more aggressive version of the anti-sex aid statute might well be unconstitutional. For example, if the law prohibited not only the sale of such devices, but also their use, it might so intrude on the individual's right of personal privacy as to violate the Constitution.
Or, to take the point even a step further, suppose the state made it a crime to masturbate. It is difficult to believe that a nation dedicated to "the pursuit of happiness" and the freedom, autonomy and privacy of the individual could possibly allow such a law. But is there really a difference?
The fear of masturbation, by the way, is nothing new. In the 1830s and '40s, a masturbation panic hit the United States, as Christian evangelicals and medical quacks warned that those who fell victim to the practice would be reduced to a state of utter degradation. Parents were cautioned to be on the lookout for early signs of self-abuse in their children. If they were not attentive, their sons would face lives of failure, debility, violence, and confinement in an asylum, and their daughters would suffer terrible illness, rampant fornication, and ultimately a life of prostitution. Sylvester Graham, who believed that masturbation was both sinful and dangerous, invented the Graham Cracker as a food designed to dampen sexual desire. (Think of that the next time you eat one.)
The more interesting question to me, though, is whether the invocation of the "public morality" can constitutionally justify even the law at issue in the 1568 Montgomery Highway case. What, precisely, is the "public morality" that is being promoted by a law forbidding the sale of sex aids? It cannot be sufficient merely to invoke the "public morality" to sustain a law, because virtually every law can be said to promote the "public morality."
So, we should ask more precisely: Why does the sale of vibrators and dildos undermine the "public morality"? It is worth noting that sex aids have been commonplace throughout human history. In classical Greece, for example, the literature often described women playfully masturbating with the assistance of a device adapted to the purpose, which the Greeks called olisbos. In Herondas's The Two Friends, or Confidential Talk, two young women converse excitedly about these olisboi. At the end of the conversation, the girl without one hurries off to acquire such a "treasure" for herself. In Aristophanes' Lysistrata, the women grieve the loss of the special leather olisboi that used to be made to perfection by the women of Miletus. Greek vases depict the use of olisboi in every possible manner, position, and combination.
In what sense, then, is the sale of such devices an affront to "the public morality"? Do they cause "bad" behavior, such as adultery or fornication? If anything, they would seem to cut in the opposite direction.
In any event, the invocation of "the public morality" is more basic than that. It asserts not that the use of these devices might cause bad behavior, but that their use is itself "immoral."
So, what is it about the use of a vibrator or a dildo that affronts the "public morality"? Why is a person who uses such a device "immoral"? The answer, I submit, turns entirely on religion. The pivotal shift from the world of the classical Greeks to our contemporary world, in this respect, was the advent of Christianity, with its emphasis on sexual pleasure as sinful.
Much of this can be traced to Augustine, who reasoned in the fifth century that sexual pleasure was integrally related to Adam's Fall from Grace. Adam's original sin, he argued, had not been one of pride or disobedience, but of sex. Thus, sexual pleasure was born out of evil, and man's best hope for redemption lay in repudiating the sexual impulse and, with it, the burden of guilt inherited from Adam. Sexual pleasure was therefore deemed defiling and shameful.
Of course, Christian doctrine has evolved in many ways since then, but it is this core attitude about sex that underlies the claim the sale of sex aids undermines the "public morality." Indeed, if we ask why the use of a sex aid is immoral, the only really plausible answer must be rooted in this set of religious beliefs.
Of course, people have a right to believe whatever their religion commands. If they wish not to use a sex aid, or to be celibate, that's their own business. But can this set of beliefs serve as a constitutionally permissible definition of the "public morality" in a nation dedicated to the separation of church and state?