A: When you’re selling one in Alabama.

According to a federal court decision announced yesterday (Valentine’s Day!), it’s perfectly fine for the state of Alabama to criminalize the sale of sex toys. Just to put this in context — 41 years after the Supreme Court decided it was unconstitutional to restrict the sale of condoms, the Court of Appeals for the 11th Circuit thinks it’s fine for Alabama to jail (up to one year for first violation) or fine (up to $50,000) anyone who gets caught selling as much as a dildo. (PDF of the statue is here.)

I don’t think anyone would argue that there is any harm worth criminalizing in selling sex toys to adults. No one’s being forced to do anything, there’s no economic harm, no harm to children. But the Attorney General of Alabama told the court that the law barring sales preserved “public morality,” and was, therefore, constitutional.

The AG’s “public morality” argument might have held up in 1999, but in 2003, the Supreme Court held, in Lawrence v. Texas, “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.” And that, one would have thought, was that. If public morality alone isn’t a sufficient reason for a law, then a law making it illegal to sell sex toys just has to be unconstitutional, yes? Well, no. The Court of Appeals decided that the Lawrence holding only applied to private behavior. So Alabama couldn’t make it illegal to own or use sex toys. But it can make it illegal to sell them. The court decided that selling sex toys was like prostitution, a commercial, public activity that can be punished under the law.

Let’s get back to my opening question, comparing the sale of guns with the sale of vibrators. Alabama is one of the easiest places in the US to buy a gun. There are no state laws requiring licensing, registration, child safety locks, a mandatory waiting period or a limit on the number of weapons that can be purchased at any one time. Maybe that’s one of the reasons Alabama has the 4th highest homicide rates in the US. So let’s take a look at Alabama’s moral restrictions on commerce. Someone sells ten assault rifles to a 16 year old who just walks into the shop without proof of parental permission? Perfectly alright. Someone sells a rubber duckie vibrator to a 40 year old woman at a sex-toy party in the buyer’s home?

Better close the shades.

Tom Joaquin, Esq