Michael J. Hooi, Substantive Due Process: Sex Toys after Lawrence Williams v. Morgan, 478 F.3d 1316 (11th Cir. 2007)

60 Fla. L. Rev. 507 (2008) | | | |

TEXT :: Appellants filed suit in the U.S. District Court for the Northern District of Alabama to enjoin the enforcement of an Alabama statute that prohibits the commercial distribution of sex toys. Appellants claimed that the statute unconstitutionally burdened their rights to privacy and personal autonomy. The district court upheld the statute, applying a previous holding of the Eleventh Circuit that the U.S. Constitution did not recognize a fundamental right to sexual privacy. The district court concluded that the statute was based on “concerns over public morality” and that those concerns were rationally related to Alabama’s commercial ban. On appeal, the Eleventh Circuit affirmed and held that public morality supplied a legitimate rational basis for the statute.


The Fourteenth Amendment of the U.S. Constitution prohibits the states from “depriv[ing] any person of life, liberty, or property, without due process of law.” The Due Process Clause guarantees not only fair procedures but also substantively fair, reasonable legislation that promotes legitimate governmental objectives. Accordingly, a court will usually uphold legislation that is rationally related to a legitimate governmental objective but will heighten its scrutiny of legislation that appears to infringe on certain fundamental rights or liberty interests.

To determine whether an asserted right or liberty interest is fundamental, a court applies the two-step analysis articulated in Washington v. Glucksberg. The court begins by looking at a “careful description” of the asserted fundamental interest. Then the court examines whether that interest is “deeply rooted” in the American legal tradition.

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