05.30.14 9:45 AM ET
The Town Where Your Sex Toy Could Land You in Jail
Purchasing a sex toy is always fraught with certain dangers—a credit card statement for the Rabbit accidentally mailed to the parents; a Silver Bullet whose loud vibrations make the roommates realize you actually weren’t “too tired” to watch The Bachelor with them. But for residents of one small Georgia town, sex toys are now more perilous—and more illegal—than firearms.
Welcome to Sandy Springs, Georgia, where buying a dildo could land you in the pokey. Back in 2009, the city passed an ordinance forbidding the distribution of “any device designed or marketed as useful primarily for the stimulation of human genital organs.” (Exceptions can apparently be made if the owner demonstrates clear “medical, scientific, educational, legislative, judicial or law enforcement purpose.”) The law classifies vibrators, plastic dicks, and pretty much anything other than fingers as “obscene.”
And the ban extends beyond the confines of Sandy Springs: purchasing sex toys online is also considered a punishable violation. This, from the state that brought America the “guns everywhere” law, which lets Georgians pack heat in churches, bars, and even schoolyards.
But two brave state residents have told the city of Sandy Springs to butt out of their bedroom purchases. One of the plaintiffs is Melissa Davenport, a woman with multiple sclerosis. Davenport says the disease left her with little sensation in her genital region, and that sex toys helped restore intimacy between her and her husband. "I wouldn't have a marriage without them or a healthy sex life becuase of the nerve damage over the years. For the first time it hardly felt like I had the disease when the doctors really had no hope for us," she tells The Daily Beast.
Davenport decided to come forward with the suit because "this ban is so much bigger than me or this disease," she says. "Why should someone have to pay for shipping and wonder if it is going to be packaged privately if they can just frequent the store?"
Gerry Weber, the attorney filing the suit, said the city ordinance violates Davenport’s right to privacy under the Fourteenth Amendment’s Due Process Clause. “Absent compelling evidence from the government, people can't be forced to share their intimate lives,” Weber told The Daily Beast. “Mrs. Davenport has been married 24 years, so this is an issue of marital privacy.” The ordinance, Weber argues in the suit, is a violation of Equal Protection guaranteed under the Fourteenth Amendment because it creates a legal distinction between sex toy users and non-sex toy users. “There is no valid reason to treat this group of people differently from those who choose not to use such objects during sexual activity.”
The other plaintiff, Marshall G. Henry, is a bisexual man who uses sex toys in his personal life—and an artist who has used them as materials in his pieces. Not only is he kept from purchasing sex toys in Sandy Springs for the creation of his art, but as a result of the ordinance, he is banned from selling his work if it contains sex toys. Henry’s lawsuit argues that these limits on his artistic expression constitute a violation of his First Amendment rights:
Mr. Henry and others want to and have a right to purchase items for and to sell art that includes objects deemed by the Ordinance to be unlawfully “obscene.” In fact, these objects are not at all “obscene.” These objects and this art have serious literary, artistic, political, and scientific value.
Yet it’s far from certain that Davenport and Henry’s suit will succeed in overturning Sandy Springs’ ban. Prohibitions on selling and purchasing sex toys have been upheld in the U.S. Court of Appeals. As recently as 2007, the 11th Circuit upheld Alabama’s statewide ban on the sale of sex toys because “the state's interest in preserving and promoting public morality provides a rational basis for the challenged statute.”
But there’s movement in other states: in 2008, a federal appeals court struck down a similar sex toy ban in Texas. And the discrepancy between the two federal appeals courts could make Sandy Springs’ ordinance “a compelling case for the Supreme Court,” says Scott Titshaw, professor at the Mercer University School of Law.
Here’s hoping we can watch Scalia and Ginsburg battle it out over feather ticklers and vibrators.