11th Circuit to Hold En Banc Hearing on Sex Toy Ban

(CN) – The 11th Circuit will hold an en banc rehearing on a challenge to an Atlanta suburb’s sex toy ban that it previously upheld citing a 2004 precedent.

The city of Sandy Springs, Georgia enacted the ordinance in May 2004, banning the open display of vibrators and sex toys by retailers and requiring a doctor’s prescription to purchase such a device.

That prompted a string of lawsuits retailers, adult entertainment emporiums, and city residents Melissa Davenport and Marshall Henry, all of whom argue the ordinance is an invasion of privacy and want it declared unconstitutional.

A federal judge in Atlanta upheld the ban, and in August 2016, an 11th Circuit panel upheld that decision, saying that it was bound by its 2004 ruling in Williams v. Attorney General (Williams IV), challenging a similar ban in an Alabama city.

“Although we are sympathetic to the Appellants’ Fourteenth Amendment Due Process claim, we are constrained by our prior precedent in Williams IV, and we are obligated to follow it ‘even though convinced it is wrong,’” the August 2 ruling stated. “The Appellants are free to petition the court to reconsider our decision en banc, and we encourage them to do so.”

The commercial plaintiffs in the case raised 14th Amendment issues in their complaints.

Davenport, who has multiple sclerosis, says she uses sexual devices with her husband to assist the couple with intimacy.

“She seeks to purchase sexual devices in Sandy Springs for her own use, as well as to sell sexual devices to others in Sandy Springs who suffer from the same or a similar condition,” court documents say.

Marshall Henry, meanwhile, is an artist who uses the sexual devices primarily in his art work.

Henry and Davenport challenged the constitutionality of the law in a district court, contending “they have a fundamental right to engage in acts of private, consensual sexual intimacy, and that the Ordinance burdens this right.”

In upholding the district court’s ruling, the 11th Circuit panel said the U.S. Supreme Court’s then-recent decision in Lawrence v. Texas identified no such fundamental right, and that it concluded on the basis of circuit’s that the facts of the case did not support assigning constitutional protection to a right to sell, buy, and use sexual devices.

The plaintiffs then moved for an en banc rehearing. The 11th Circuit did not explain its rationale for rehearing the case in its March 14 ruling.

Representatives of the city declined to comment on the ruling.

Sandy Springs was incorporated as a city in 2005 and is the sixth largest city in Georgia, the second largest in the metropolitan Atlanta area, according to the city’s website.