Sherri Williams v. Bill Pryor , 240 F.3d 944 ( 2001 )

  •                                                                        [PUBLISH]
                            FOR THE ELEVENTH CIRCUIT           U.S. COURT OF APPEALS
                             ________________________            ELEVENTH CIRCUIT
                                                                   OCTOBER 12, 2000
                                                                  THOMAS K. KAHN
                                    No. 99-10798                       CLERK
                          D. C. Docket No. 98-01938-CV-S-NE
    BILL PRYOR, in his official capacity
    as the Attorney General of the State of Alabama,
                       Appeal from the United States District Court
                          for the Northern District of Alabama
                                   (October 12, 2000)
    Before ANDERSON, Chief Judge, BLACK and HALL*, Circuit Judges.
    BLACK, Circuit Judge:
             Honorable Cynthia Holcomb Hall, U.S. Circuit Judge for the Ninth Circuit,
    sitting by designation.
          In 1998, a statute enacted by the legislature of the State of Alabama
    amended the obscenity provisions of the Alabama Code to make the distribution of
    certain defined sexual devices a criminal offense. Vendors and users of such
    devices filed a constitutional challenge to the statute. The district court declined to
    hold the statute violated any constitutional right but determined the statute was
    unconstitutional because it lacked a rational basis. The court permanently enjoined
    enforcement of the statute. We reverse and remand.
                                        I. BACKGROUND
          The case was tried by the district court from the parties’ extensive stipulated
    facts, reprinted in full in the district court’s published opinion. See Williams v.
    41 F. Supp. 2d 1257
    , 1261-1273 (N.D. Ala. 1999).
          After the 1998 amendment, the Alabama Code obscenity provisions provide,
    in pertinent part, the following:
          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
    Id. at 1259 (quoting Ala. Code § 13A-12-200.2(a)(1) (Supp. 1998)).2 A first
            We adopt the district court’s usage of the shorthand term “sexual device”
    in place of the cumbersome phrase “device designed or marketed as useful
    primarily for the stimulation of the human genital organs.”
    violation is a misdemeanor punishable by a maximum fine of $10,000 and up to
    one year of jail or hard labor; a subsequent violation is a class C felony. See id.
    The State has conceded the statute’s proscription of the distribution of sexual
    devices in Alabama does not apply to devices acquired as gifts or by purchases in
    another state. See id. at 1265. The statute also does not restrict possession or use
    of a sexual device by an individual, but only the commercial distribution of the
    devices. See id.
          The plaintiffs-appellees are vendors or users of sexual devices. See id. at
    1261-65. The stipulated facts contain two expert opinions that describe the
    standard medical and psychological therapeutic uses of sexual devices, including
    their frequent prescription in marital and non-marital sexual or relationship
    counseling—often as a necessary component for successful therapy. See id. at
    1265-73. The facts also describe a number of other sexual products the
    distribution of which is not prohibited by the statute, such as ribbed condoms or the
    virility drug Viagra. See id. at 1265.
          The district court performed a careful evaluation of the plaintiffs’
    constitutional challenges. After considering Supreme Court precedent, the court
    determined the statute does not implicate previously recognized fundamental
    constitutional rights. See id. at 1275-84. The court also declined to extend those
    rights to provide a fundamental right to the use of sexual devices, a right that
    would be burdened by the statute. See id. The district court next reviewed the
    statute under rational basis scrutiny and concluded the statute lacked a rational
    basis. See id. at 1284-1293. The court accordingly held the statute
    unconstitutional and issued a permanent injunction against its enforcement. See id.
    at 1293.
          We review de novo the district court’s decision on the constitutionality of a
    statute. See, e.g., Mason v. Florida Bar, 
    208 F.3d 952
    , 955 (11th Cir. 2000); David
    Vincent, Inc. v. Broward County, 
    200 F.3d 1325
    , 1335 (11th Cir. 2000); United
    States v. Hester, 
    199 F.3d 1287
    , 1289 (11th Cir. 2000).
                                       II. ANALYSIS
          Whether a statute is constitutional is determined in large part by the level of
    scrutiny applied by the courts. Statutes that infringe fundamental rights, or that
    make distinctions based upon suspect classifications such as race or national origin,
    are subject to strict scrutiny, which requires that the statute be narrowly tailored to
    achieve a compelling government interest. See, e.g., Reno v. Flores, 
    507 U.S. 292
    113 S. Ct. 1439
    , 1447 (1993); Adarand Constructors v. Pena, 
    515 U.S. 200
    , 227, 
    115 S. Ct. 2097
    , 2113 (1995). Most statutes reviewed under the very
    stringent strict scrutiny standard are found to be unconstitutional. But see United
    States v. Virginia, 
    518 U.S. 515
    , 532 n.6, 
    116 S. Ct. 2264
    , 2275 n.6 (1995) (“strict
    scrutiny . . . is not inevitably fatal in fact”) (quotation omitted). On the other hand,
    “if a law neither burdens a fundamental right nor targets a suspect class, we will
    uphold the [law] so long as it bears a rational relation to some legitimate end.”
    Romer v. Evans, 
    517 U.S. 620
    , 632, 
    116 S. Ct. 1620
    , 1627 (1996); see also, e.g.,
    Washington v. Glucksberg, 
    521 U.S. 702
    , 728, 
    117 S. Ct. 2258
    , 2271 (1997); FCC
    v. Beach Communications, Inc., 
    508 U.S. 307
    , 314, 
    113 S. Ct. 2096
    , 2101 (1993).
    Almost every statute subject to the very deferential rational basis scrutiny standard
    is found to be constitutional. Cf., e.g., Panama City Med. Diag. Ltd. v. Williams,
    13 F.3d 1541
    , 1546-47 (11th Cir. 1994) (discussing “arguable” rational bases for
    statute). We consider first the district court’s determination that the statute is
    unconstitutional because it fails rational basis scrutiny.
    A. Rational Basis Review
          Rational basis scrutiny is a highly deferential standard that proscribes only
    the very outer limits of a legislature’s power. 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 Communications,
    508 U.S. 307
    , 314, 
    113 S. Ct. 2096
    , 2101 (1993) (emphasis added). The
    Supreme Court has explained that:
          Where there are plausible reasons for Congress’ action, our inquiry is
          at an end. This standard of review is a paradigm of judicial
          restraint. . . .
                   On rational-basis review, . . . a statute . . . comes to us bearing a
          strong presumption of validity, and those attacking the rationality of
          the [statute] 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
          . . . actually motivated the legislature. . . . In other words, a legislative
          choice is not subject to courtroom fact-finding and may be based on
          rational speculation unsupported by evidence or empirical data. Only
          by faithful adherence to this guiding principle of judicial review of
          legislation is it possible to preserve to the legislative branch its
          rightful independence and its ability to function.
    Id. at 313-15, 113 S. Ct. at 2101-02 (citations and quotations omitted) (emphasis
    added). In addition, “the legislature must be allowed leeway to approach a
    perceived problem incrementally,” even if its incremental approach is significantly
    over-inclusive or under-inclusive. Id. at 316, 113 S. Ct. at 2102; see also, e.g.,
    Heller v. Doe by Doe, 
    509 U.S. 312
    , 321, 
    113 S. Ct. 2637
    , 2643 (1993); Haves v.
    City of Miami, 
    52 F.3d 918
    , 923 (11th Cir. 1995). Only in an exceptional
    circumstance will a statute not be rationally related to a legitimate government
    interest and be found unconstitutional under rational basis scrutiny.3
          The district court systematically considered whether the Alabama sexual
    devices distribution criminal statute has a rational basis. See 41 F. Supp. 2d at
    1284-1293. First, the court examined three interests it believed had been relied
    upon by the State: banning the public display of obscene material, banning “the
    commerce of sexual stimulation and auto-eroticism, for its own sake, unrelated to
    marriage, procreation, or familial relationships,” and banning the commerce in
    obscene material. Id. at 1286-87. The district court concluded each of these
             An example of such an exceptional circumstance recognized by this Court
    is the irrationality of government attempts to regulate the dress and grooming of
    adults. See DeWeese v. Town of Palm Beach, 
    812 F.2d 1365
    , 1368-70 (11th Cir.
    1987) (invalidating town ordinance requiring male joggers to wear shirts);
    Lansdale v. Tyler Junior College, 
    470 F.2d 659
    , 662-63 (5th Cir. 1972) (en banc)
    (adopting presumption that state’s interests in education and educational
    environment did not rationally justify hair-length regulation at junior college,
    although under Karr v. Schmidt, 
    460 F.2d 609
     (5th Cir. 1972) (en banc), those
    interests presumptively could rationally justify dress and grooming regulations in
    high schools); also compare Hander v. San Jacinto Junior College, 
    519 F.2d 273
    (5th Cir. 1975) (holding under Lansdale that junior college could not fire faculty
    member for refusing to shave beard), with Domico v. Rapides Parish School Bd.,
    675 F.2d 100
     (5th Cir. 1982) (holding that school board may apply dress code to
    employees of high school), and Kelley v. Johnson, 
    425 U.S. 238
    96 S. Ct. 1440
    (1976) (sustaining hair grooming regulation in police department).
    interests was a legitimate interest the State constitutionally could pursue. See id.
    Second, the court considered whether prohibiting the distribution of sexual devices
    is rationally related to these legitimate interests. For each interest, the court
    concluded the law did not rationally advance the State’s objective. See id. at 1288-
    93. With respect to public decency, the district court found the ban on the
    distribution of sexual devices to be “absolutely arbitrary” because “[i]nnumerable
    measures far short of an absolute ban on the distribution of sexual devices would
    accomplish the State’s goals.” Id. at 1288. The court also determined the ban was
    irrationally related to the interest in discouraging commerce in auto-eroticism
    because the ban, by its very terms, also interfered with the very sexual stimulation
    and eroticism related to marriage and procreation with which the State disclaimed
    any intent to interfere. See id. at 1288-90. Finally, the court concluded the statute
    was an irrational means of banning obscenity because Alabama “banned the
    distribution of all sexual devices in an effort to prohibit the few which may be
    found obscene.” Id. at 1293. The court therefore held the statute failed rationally
    to advance any legitimate state interest and accordingly was unconstitutional. See
          We conclude the district court erred in determining the statute lacks a
    rational basis. The State’s interest in public morality is a legitimate interest
    rationally served by the statute. The 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.
    See, e.g., Barnes v. Glen Theatre, Inc., 
    501 U.S. 560
    , 569, 
    111 S. Ct. 2456
    , 2462
    (1991) (citing Bowers v. Hardwick, 
    478 U.S. 186
    , 196, 
    106 S. Ct. 2841
    , 2846
    (1986); Paris Adult Theatre I v. Slaton, 
    413 U.S. 49
    , 61, 
    93 S. Ct. 2628
    , 2637
    (1973); Roth v. United States, 
    354 U.S. 476
    77 S. Ct. 1304
     (1957)).4 A statute
    banning the commercial distribution of sexual devices is rationally related to this
    interest. Alabama argues “a ban on the sale of sexual devices and related orgasm
    stimulating paraphernalia is rationally related to a legitimate legislative interest in
    discouraging prurient interests in autonomous sex” and that “it is enough for a
    legislature to reasonably believe that commerce in the pursuit of orgasms by
    artificial means for their own sake is detrimental to the health and morality of the
    State.” Appellant’s Brief at 13, 16. The criminal proscription on the distribution
    of sexual devices certainly is a rational means for eliminating commerce in the
             In fact, the State’s interest in public morality is sufficiently substantial to
    satisfy the government’s burden under the more rigorous intermediate level of
    constitutional scrutiny applicable in some cases. See, e.g., City of Erie v. Pap’s
    A.M., ___ U.S. ___, 
    120 S. Ct. 1382
    , 1395-97 (2000); Barnes, 501 U.S. at 569, 
    111 S. Ct. 2462
    . For purposes of consistency in this case, however, we will refer to the
    interest as legitimate.
    devices, which itself is a rational means for making the acquisition and use of the
    devices more difficult. Moreover, incremental steps are not a defect in legislation
    under rational basis scrutiny, so Alabama did not act irrationally by prohibiting
    only the commercial distribution of sexual devices, rather than prohibiting their
    possession or use or by directly proscribing masturbation with or without a sexual
    device. Thus, we hold the Alabama sexual devices distribution criminal statute is
    constitutional under rational basis scrutiny because it is rationally related to at least
    one legitimate State interest.
          In addition, the district court’s application of rational basis scrutiny to the
    three state interests it considered was erroneous because the court relied heavily
    upon three Supreme Court decisions, Romer v. Evans, 
    517 U.S. 629
    116 S. Ct. 1620
     (1996), Turner v. Safley, 
    482 U.S. 78
    107 S. Ct. 2254
     (1987), and City of
    Cleburne v. Cleburne Living Center, 
    473 U.S. 432
    105 S. Ct. 3249
     (1985), in
    concluding the statute does not rationally advance the State’s interests the district
    court conceded were legitimate. See 41 F. Supp. 2d at 1288, 1293. These cases do
    not support the district court’s application of rational basis scrutiny in this case.
          First, the Turner v. Safely decision established a deferential reasonableness
    standard as the level of scrutiny to be applied when a prison regulation infringes an
    inmate’s constitutional interests. See Turner, 482 U.S. at 89-91, 107 S. Ct. at
    2261-63. Although similar in part (and sometimes in description) to ordinary
    rational basis review, the Turner standard requires a more searching, four-part
    inquiry. The first prong considers whether the prison regulation is rationally
    related to a legitimate penological interest (a class of interests more narrow than
    those considered under ordinary rational basis review); the other prongs address
    whether the inmate has alternative means of exercising the constitutional right, the
    burden on the prison in accommodating the right, and whether the regulation is an
    exaggerated response to prison concerns. See id. at 89-91, 107 S. Ct. at 2261-63;
    see also, e.g., O’Lone v. Estate of Shabazz, 
    482 U.S. 342
    , 349-53, 
    107 S. Ct. 2400
    2404-07 (1987); Pope v. Hightower, 
    101 F.3d 1382
    , 1384 (11th Cir. 1996); Harris
    v. Thigpen, 
    941 F.2d 1495
    , 1516 (11th Cir. 1991). Accordingly, cases decided
    under the Turner standard, and Turner itself, are inapplicable to cases, like this
    one, concerning the constitutional protection accorded by ordinary rational basis
    scrutiny to citizens in free society.
          Second, the district court also erred by applying Romer v. Evans. In Romer,
    the Supreme Court invalidated a provision of the Colorado state constitution that
    imposed a special limitation on participation in the political process upon one
    group, homosexuals. Applying rational basis scrutiny, the Court held that
    Colorado’s provision was unconstitutional. See 517 U.S. at 632, 116 S. Ct. at
    1627. As described by the Court, the provision “withdraws from homosexuals, but
    no others, specific legal protection from the injuries caused by discrimination, and
    it forbids reinstatement of these laws and policies,” id. at 627, 116 S. Ct. at 1625,
    “bars homosexuals from securing protection against the injuries that these
    public-accommodations laws address,” and “operates to repeal and forbid all laws
    or policies providing specific protection for gays or lesbians from discrimination
    by every level of Colorado government,” id. at 629, 116 S. Ct. at 1626, resulting in
    a situation in which “[h]omosexuals are forbidden the safeguards that others enjoy
    or may seek without constraint. They can obtain specific protection against
    discrimination only by enlisting the citizenry of Colorado to amend the State
    Constitution.” Id. at 631, 116 S. Ct. at 1627. The Court then noted that “[t]he
    resulting disqualification of a class of persons from the right to seek specific
    protection from the law is unprecedented in our jurisprudence. . . . It is not within
    our constitutional tradition to enact laws of this sort. . . . A law declaring that in
    general it shall be more difficult for one group of citizens than for all others to seek
    aid from the government is itself a denial of equal protection of the laws in the
    most literal sense.” Id. at 633, 116 S. Ct. at 1628. The significance of Romer,
    therefore, is the Court’s holding that Colorado’s provision had not been enacted in
    pursuit of any legitimate government interest: the provision was “an exceptional
    and . . . invalid form of legislation.” Id. at 632, 116 S. Ct. at 1627. The State had
    no legitimate interest in imposing an inability to obtain the protection of anti-
    discrimination laws (without amending the state constitution) on any particular
    group, including homosexuals.5 Cf. Shahar v. Bowers, 
    114 F.3d 1097
    , 1110 (11th
    Cir. 1997) (en banc) (“Romer . . . struck down an amendment to a state constitution
    as irrational because the amendment’s sole purpose was to disadvantage a
    particular class of people”); id. at 1126 (Birch, J., dissenting) (“the Court rejected
    the state’s rationale, declaring that animosity toward the class of homosexuals is
    not a legitimate basis for state action”) (quotation omitted). The statute at issue in
    this case, however, raises no similar concerns. The district court agreed the three
    state interests it discussed were legitimate, see 41 F. Supp. 2d at 1286-87, and we
             The Romer Court also discussed whether the Colorado provision was
    rationally related to a government interest. The Court determined the provision’s
    “sheer breadth is so discontinuous with the reasons offered for it that the
    amendment seems inexplicable by anything but animus toward the class it affects,”
    id. at 632, 116 S. Ct. at 1627, and that “[t]he breadth of the amendment is so far
    removed from these particular justifications that we find it impossible to credit
    them.” Id. at 635, 116 S. Ct. at 1629. Although discussed in terms of the
    rationality of the relationship of means to ends, in effect the Court reasoned that
    the type of means adopted showed that no legitimate end was being pursued:
    “[L]aws of the kind now before us raise the inevitable inference that the
    disadvantage imposed is born of animosity toward the class of persons affected,”
    id. at 634, 116 S. Ct. at 1628, amounting to “a classification of persons undertaken
    for its own sake, something the Equal Protection Clause does not permit.” Id. at
    635, 116 S. Ct. at 1629.
    have held there is at least one legitimate state interest, the regulation of public
    morality, that justifies this statute. Consequently, Romer’s holding that the
    Colorado provision was supported by no legitimate state interest has no bearing in
    this case.
           Third, the Equal Protection Clause as-applied analysis of City of Cleburne
    has little relevance to the fundamental rights facial challenge raised by the
    plaintiffs in this case. The Supreme Court recently reaffirmed that the Equal
    Protection Clause is violated (in cases in which heightened scrutiny does not
    apply) when the plaintiff—whether a class, group, or simply one
    individual—proves “that she has been intentionally treated differently from others
    similarly situated and that there is no rational basis for the difference in treatment.”
    Village of Willowbrook v. Olech, 
    120 S. Ct. 1073
    , 1074 (2000) (holding that
    plaintiff stated constitutional Equal Protection Clause cause of action by alleging
    that village acted irrationally, wholly arbitrarily, and out of malice toward plaintiff
    when it demanded 33-foot easement from plaintiff, contrary to 15-foot easements
    obtained from others similarly situated). In City of Cleburne, the Court had
    applied this principle in holding that the city had violated the Equal Protection
    Clause by requiring a special use permit for a group home for mentally disabled
    persons but not for many other similar kinds of group homes. After rejecting the
    application of heightened scrutiny, see 473 U.S. at 442, 105 S. Ct. at 3255, the
    Court considered the city’s arguments that the permit requirement was based on the
    following government interests: neighbors’ negative opinions and fears of elderly
    neighbors, proximity to a junior high school, location on a flood plain, size of the
    home and number of residents it would house, fire hazards, neighborhood serenity,
    and danger to neighbors. See id. at 448-50, 105 S. Ct. at 3259-60. The Court did
    not discount the legitimacy of these interests, but rather found that, in creating the
    means used to carry out these interests, the city had adopted a classification that
    had no rational basis:
          The city does not require a special use permit . . . for apartment
          houses, multiple dwellings, boarding and lodging houses, fraternity or
          sorority houses, dormitories, apartment hotels, hospitals, sanitariums,
          nursing homes for convalescents or the aged (other than for the insane
          or feebleminded or alcoholics or drug addicts), private clubs or
          fraternal orders, and other specified uses. It does, however, insist on a
          special permit for the Featherston home, and it does so, as the District
          Court found, because it would be a facility for the mentally retarded. .
          . . But this difference is largely irrelevant unless the Featherston
          home and those who would occupy it would threaten legitimate
          interests of the city in a way that other permitted uses such as
          boarding houses and hospitals would not. Because in our view the
          record does not reveal any rational basis for believing that the
          Featherston home would pose any special threat to the city’s
          legitimate interests, we affirm the judgment below insofar as it holds
          the ordinance invalid as applied in this case.
    Id. at 447-48, 105 S. Ct. at 3258 (emphasis added).6 In this case, by contrast, the
    plaintiffs have presented a fundamental rights facial challenge to the Alabama
    statute; they have not alleged an Equal Protection Clause violation, much less
    argued that the statute would make any irrational classifications among persons in
    its enforcement. Accordingly, the rational basis analysis of City of Cleburne does
    not support the district court’s conclusion that this statute lacks a rational basis.
          Finally, the plaintiffs maintain the district court did not err in finding the
    statute to be constitutionally irrational because Alabama’s statute is contrary to a
    wide spectrum of public and professional opinions. The plaintiffs argue these
    opinions recognize numerous legitimate and beneficial uses of sexual devices,
    especially the necessity of sexual devices for some persons to achieve medical or
    emotional health. 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
             Similar to Romer, the City of Cleburne Court noted that “requiring the
    permit in this case appears to us to rest on an irrational prejudice against the
    mentally retarded.” Id. at 450, 105 S. Ct. at 3260. Unlike Romer, however, this
    conclusion was directed not to the legitimacy of the city’s ends, but rather
    bolstered the Court’s determination that the classification of persons drawn by the
    city in carrying out its ends was constitutionally irrational.
    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.
    440 U.S. 93
    , 97, 
    99 S. Ct. 939
    , 942-943 (1979). This Court does not
    invalidate bad or foolish policies, only unconstitutional ones; we may not “sit as a
    superlegislature 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 (1976).
          For the foregoing reasons, we hold the Alabama statute challenged in this
    case has a rational basis. We therefore reverse the district court’s judgment to the
    B. Fundamental Rights Analysis
          In their fundamental rights arguments, the plaintiffs challenged the
    constitutionality of the statute on its face and as applied. We conclude the district
    court correctly rejected the facial challenge, but we remand the as-applied
    1. Facial Challenge
          “A facial challenge to be successful ‘must establish that no set of
    circumstances exists under which the Act would be valid.’” Adler v. Duval County
    School Bd., 
    206 F.3d 1070
    , 1083-84 (11th Cir. 2000) (en banc) (quoting United
    States v. Salerno, 
    481 U.S. 739
    , 745, 
    107 S. Ct. 2095
    , 2100 (1987)). Unless the
    statute is unconstitutional in all its applications, an as-applied challenge must be
    used to attack its constitutionality.
          Initially, we must determine how to frame the nature and scope of a
    constitutional right that would facially invalidate the Alabama statute. Alabama
    maintains the plaintiffs are claiming simply a “right to sell or buy” sexual devices.
    Such a right would receive little constitutional protection because ordinary
    economic and commercial regulations are subject only to rational basis scrutiny.
    See, e.g., Beach Communications, 508 U.S. at 314, 113 S. Ct. at 2101 (“In areas of
    social and economic policy, . . . any reasonably conceivable state of facts that
    could provide a rational basis for the” statute is sufficient to sustain its
    constitutionality); Williamson v. Lee Optical of Oklahoma, Inc., 
    348 U.S. 483
    , 489,
    75 S. Ct. 461
    , 465 (1955). The plaintiffs respond that a right of greater
    constitutional significance is at stake: in the narrowest sense, the plaintiffs assert a
    fundamental “right to use” sexual devices; more generally, the plaintiffs invoke the
    Supreme Court’s cases establishing a constitutionally protected fundamental right
    to privacy. The district court narrowly framed the analysis as the question
    “whether the concept of a constitutionally protected ‘right to privacy’ protects an
    individual’s liberty to use [sexual devices] when engaging in lawful, private,
    sexual activity.” 41 F. Supp. 2d at 1275; see also id. at 1281 & n.30. For purposes
    of the facial challenge, the right is more precisely stated as whether the
    Constitution protects such liberty of every individual.
          In light of the Supreme Court’s decision in Carey v. Population Services
    431 U.S. 678
    97 S. Ct. 2010
     (1977), we conclude the district court
    correctly framed the fundamental rights analysis in this case. Following its
    decisions holding a state may not criminalize every sale or distribution of
    contraceptives, see Griswold v. Connecticut, 
    381 U.S. 479
    85 S. Ct. 1678
    Eisenstadt v. Baird, 
    405 U.S. 438
    92 S. Ct. 1029
     (1972), the Supreme Court struck
    down a narrower New York law criminalizing the sale of contraceptives to persons
    under 16 years of age and the sale of contraceptives by non-pharmacists. See
    Carey, 431 U.S. at 681-82, 97 S. Ct. at 2014. The Court explained that:
          [T]he Constitution protects individual decisions in matters of
          childbearing from unjustified intrusion by the State. Restrictions on
          the distribution of contraceptives clearly burden the freedom to make
          such decisions. . . . This is so not because there is an independent
          fundamental “right of access to contraceptives,” but because such
          access is essential to exercise of the constitutionally protected right of
          decision in matters of childbearing that is the underlying foundation of
          the holdings in Griswold, Eisenstadt v. Baird, and Roe v. Wade.
    431 U.S. at 687-89, 97 S. Ct. at 2017-18; see also id. at 689-91, 97 S. Ct. at 2108-
    19 (concluding that New York law fails strict scrutiny for lack of compelling state
    interest). Similarly, because the statute prohibiting the distribution of sexual
    devices would burden an individual’s ability to use the devices, the analysis in this
    case must be framed not in terms of whether the Constitution protects a right to sell
    or buy sexual devices, but rather in terms of whether there is a fundamental
    constitutional interest—broad or narrow—that encompasses a right to use sexual
    devices and invalidates this statute on its face.
          We conclude there is no controlling precedent that specifically establishes
    the facial unconstitutionality of this statute.7 The fundamental constitutional rights
    of privacy recognized to date by the Supreme Court in the area of sexual activity
    each have followed from the Court’s protection of a person’s right to make the
            Alabama suggests two precedents interpreting similar statutes, Sewell v.
    435 U.S. 982
    98 S. Ct. 1635
     (1978), and Red Bluff Drive-In, Inc. v.
    648 F.2d 1020
     (5th Cir. June 1981) (binding authority under Bonner v. City
    of Prichard, 
    661 F.2d 1206
    , 1209 (11th Cir.1981) (en banc)), establish the
    constitutionality of this statute. We conclude neither decision is controlling here.
    The Supreme Court in Sewell dismissed an appeal from the Supreme Court of
    Georgia for want of a substantial federal question, see 435 U.S. at 982, 98 S. Ct. at
    1635, a disposition that “prevent[s] lower courts from coming to opposite
    conclusions on the precise issues presented and necessarily decided by those
    actions.” Langelier v. Coleman, 
    861 F.2d 1508
    , 1511 (11th Cir. 1988) (quoting
    Mandel v. Bradley, 
    432 U.S. 173
    , 176, 
    97 S. Ct. 2238
    , 2240 (1977)) (emphasis
    added). The only issues necessarily decided in Sewell, however, were First
    Amendment obscenity arguments. See Sewell v. State, 
    233 S.E.2d 187
    , 188-89
    (Ga. 1977). Similarly, Vance decided only a First Amendment obscenity
    challenge. See 648 F.2d at 1027-28.
    decision not to procreate without governmental interference. Specifically, the
    Court has repeatedly sustained a right to prevent pregnancy through the use of
    contraceptives, see Griswold, 381 U.S. at 479, 85 S. Ct. at 1678; Eisenstadt, 405
    U.S. at 438, 92 S. Ct. at 1029; Carey, 431 U.S. at 678, 97 S. Ct. at 2010, as well as
    a woman’s qualified right to terminate a pregnancy, see, e.g., Planned Parenthood
    v. Casey, 
    505 U.S. 833
    112 S. Ct. 2791
     (1992); Roe v. Wade, 
    410 U.S. 113
    93 S. Ct. 705
     (1973). More than half a century ago, the Court also protected the right
    to procreate, invalidating a state’s provision for involuntary sterilization of habitual
    criminals. See Skinner v. Oklahoma, 
    316 U.S. 535
    62 S. Ct. 1110
     (1942). The
    Court also has recognized other fundamental rights, including rights of privacy
    unrelated to sexual activity, that protect personal autonomy from governmental
    intrusion. See, e.g., Cruzan v. Director, Missouri Dep’t of Health, 
    497 U.S. 186
    110 S. Ct. 2841
     (1990) (sustaining right to refuse medical treatment); Loving v.
    388 U.S. 1
    87 S. Ct. 1817
     (1967) (invalidating ban on interracial
    marriage). None of these cases, however, is decisive on the question whether the
    Constitution protects every individual’s right to private sexual activity and use of
    sexual devices from being burdened by Alabama’s sexual device distribution
    criminal statute.
          We therefore must determine whether we may, in this case, recognize an
    “extension of the ‘right to privacy[,]’ which the Supreme Court has recognized as
    fundamental in certain contexts,” that is broad enough to facially invalidate the
    Alabama statute. 41 F. Supp. 2d at 1275; see id. at 1282. Extending the
    constitutional right to privacy to include a broad fundamental right to all sexual
    autonomy, such as a privacy right to engage in any form of private consensual
    sexual behavior between adults, is directly precluded by Supreme Court precedent.
    In Bowers v. Hardwick, 
    478 U.S. 186
    106 S. Ct. 2841
     (1986), the Supreme Court
    sustained against a fundamental right to privacy challenge Georgia’s criminal
    sodomy statute as applied to homosexual conduct.8 The Court reviewed its
    fundamental rights precedent and expressly noted that “any claim that these cases
    . . . stand for the proposition that any kind of private sexual conduct between
    consenting adults is constitutionally insulated from state proscription is
    unsupportable.” Id. at 191, 106 S. Ct. at 2844; see also Glucksberg, 521 U.S. at
    727, 117 S. Ct. at 2271 (“That many of the rights and liberties protected by the Due
    Process Clause sound in personal autonomy does not warrant the sweeping
            A panel of this Court had recognized a broad fundamental right to sexual
    privacy, relying particularly upon the Supreme Court’s contraception and abortion
    cases, in precluding Georgia from criminalizing private consensual adult sodomy.
    See Hardwick v. Bowers, 
    760 F.2d 1202
    , 1210-13 (11th Cir. 1985). The Supreme
    Court reversed, by a 5-4 majority, emphasizing the traditional prohibition of
    homosexual sodomy. See Bowers, 478 U.S. at 190-96, 106 S. Ct. at 2844-46.
    conclusion that any and all important, intimate, and personal decisions are so
    protected. . . .”).
           In light of Bowers, there would be no violation of any fundamental
    constitutional right to the extent the application of Alabama’s statute infringed
    upon the sexual activity of homosexuals. The statute has possible constitutional
    applications and therefore is not facially unconstitutional. The district court
    correctly rejected the plaintiffs’ facial challenge to the statute.
    2. As-Applied Challenges
           We conclude the district court did not adequately consider the as-applied
    fundamental rights challenges raised by the plaintiffs. Accordingly, we remand for
    the district court to consider these claims in the first instance.
           The district court failed to specifically consider the as-applied challenges
    raised by the four “user” plaintiffs. Betty Faye Haggermaker and Alice Jean Cope
    are married women who use sexual devices with their husbands. See 41 F.
    Supp. 2d at 1264. Sherry Taylor-Williams and Jane Doe began using sexual
    devices in marital intimacy but both are now single. See id. at 1264-65. Although
    the statute is not facially unconstitutional because, in light of Bowers, it may
    constitutionally be applied to homosexual activity—and the district court therefore
    correctly declined to recognize an expansive fundamental right encompassing the
    use of sexual devices in every kind of lawful, private, sexual activity—the as-
    applied challenges raised by the plaintiffs, married or unmarried, implicate
    interests in sexual privacy different from those rejected in Bowers. See Griswold,
    381 U.S. at 485-86, 85 S. Ct. at 1682 (“Would we allow the police to search the
    sacred precincts of marital bedrooms . . ? The very idea is repulsive to the notions
    of privacy surrounding the marriage relationship.”); Glucksberg, 521 U.S. at 720,
    117 S. Ct. at 2267 (citing Griswold as holding the Constitution protects a
    fundamental right “to marital privacy”); Bowers, 478 U.S. at 188 n.2, 190-91, 
    106 S. Ct. 2842
    , 2843-44 (noting significance of fact that no constitutional challenge to
    sodomy statute concerning marriage had been properly presented); see also Casey,
    505 U.S. at 898, 112 S. Ct. at 2831 (invalidating provision requiring notification of
    married woman’s spouse before abortion could be performed because “[w]omen do
    not lose their constitutionally protected liberty when they marry. The Constitution
    protects all individuals, male or female, married or unmarried, from the abuse of
    governmental power, even where that power is employed for the supposed benefit
    of a member of the individual’s family”); Eisenstadt, 405 U.S. at 453, 92 S. Ct. at
    1033 (“[T]he rights of the individual to [have] access to contraceptives . . . must be
    the same for the unmarried and married alike.”); Bowers, 478 U.S. at 209 n.4, 106
    S. Ct. at 2853 n.4 (Blackmun, J., dissenting) (questioning validity of
    categorizations of sexual activity depending on marital status); id. at 216, 106
    S. Ct. at 2857 (Stevens, J., dissenting) (citing Eisenstadt and Carey as holding that
    fundamental rights protection in sexual matters “extends to intimate choices by
    unmarried as well as married persons”).
          We remand the as-applied challenges for due consideration by the district
    court because the record and stipulations in this case simply are too narrow to
    permit us to decide whether or to what extent the Alabama statute infringes a
    fundamental right to sexual privacy of the specific plaintiffs in this case. In
    Glucksberg, its most recent case in which an argument for recognition of a new
    fundamental right was presented, the Supreme Court instructed that a fundamental
    right must be “objectively, deeply rooted in this Nation’s history and tradition” and
    “implicit in the concept of ordered liberty, such that neither liberty nor justice
    would exist if [the right] were sacrificed.” 521 U.S. at 720-21, 117 S. Ct. at 2268
    (citations and quotations omitted). In concluding the Constitution did not include
    such a fundamental right of physician-assisted suicide, the Court discussed at
    length not only the long history of the proscription of suicide and assisting suicide
    but also the considerable contemporary nationwide legislative action to preserve
    such laws. See id. at 710-19, 117 S. Ct. at 2262-67. By contrast, in this case the
    district court considered in two paragraphs only whether the “use of sexual
    devices” is a deeply rooted and central liberty. See 41 F. Supp. 2d at 1283-84 &
    n.33. The court analyzed neither whether our nation has a deeply rooted history of
    state interference, or state non-interference, in the private sexual activity of married
    or unmarried heterosexual persons nor whether contemporary practice bolsters or
    undermines any such history. The record is bare of evidence on these important
    questions. Absent the kind of careful consideration the Supreme Court performed
    in Glucksberg, we are unwilling to decide the as-applied fundamental rights
    analysis and accordingly remand those claims to the district court.
                                     III. CONCLUSION
           The Alabama statute making it a criminal offense to commercially distribute
    sexual devices in the State is rationally related to the State’s legitimate government
    interest in public morality. The district court therefore erred invalidating the
    statute under rational basis scrutiny. The statute also survives the plaintiffs’ facial
    challenge asserting fundamental constitutional rights. We conclude, however, the
    plaintiffs’ as-applied fundamental rights challenges must be considered further by
    the district court.