                                                                                  [PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT                          FILED
                             ________________________               U.S. COURT OF APPEALS
                                                                      ELEVENTH CIRCUIT
                                                                           JAN 31 2001
                                    No. 99-10798
                                                                       THOMAS K. KAHN
                              ________________________                       CLERK

                         D. C. Docket No. 98-01938-CV-S-NE

SHERRI WILLIAMS, B. J. BAILEY, et al.,

                                                          Plaintiffs-Appellees,

                                            versus

BILL PRYOR, in his official capacity
as the Attorney General of the State of Alabama,

                                                          Defendant-Appellant.

                              ________________________

                      Appeal from the United States District Court
                         for the Northern District of Alabama
                            _________________________
                                  (January 31, 2001)

                         ON PETITION FOR REHEARING

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.
      The opinion filed in this case on October 12, 2000, is withdrawn, and the

following opinion is substituted in its place. The petition for rehearing filed by

Appellees is otherwise DENIED.

      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.

Pryor, 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
      value.



                                           2
Id. at 1259 (quoting Ala. Code § 13A-12-200.2(a)(1) (Supp. 1998)).1 A first

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.




       1
        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.”

                                               3
      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



                                           4
achieve a compelling government interest. See, e.g., Reno v. Flores, 507 U.S. 292,

301-02, 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.




                                           5
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,

Inc., 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.,

                                            6
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.2

       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

interests was a legitimate interest the State constitutionally could pursue. See id.

Second, the court considered whether prohibiting the distribution of sexual devices


       2
          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).

                                               7
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

id.

      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



                                            8
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)).3 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

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

       3
         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.

                                                  9
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



                                           10
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



                                          11
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




                                           12
group, including homosexuals.4 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

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

       4
          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.

                                                13
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



                                           14
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).5 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




       5
          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.

                                               15
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

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.

Bradley, 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




                                           16
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

contrary.

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

challenges.

1. Facial Challenge

      “A facial challenge to be successful ‘must establish that no set of

circumstances exists under which the Act would be valid.’” Gulf Power Co. v.

United States, 187 F.3d 1324, 1328 (11th Cir. 1999) (quoting United States v.

Salerno, 481 U.S. 739, 745, 107 S. Ct. 2095, 2100, 95 L. Ed. 2d 697 (1987)); see

also United States v. Frandsen, 212 F.3d 1231, 1235 (11th Cir. 2000) (stating that

“no set of circumstances” is the general rule for evaluating facial challenges in this

circuit); Jacobs v. Florida Bar, 50 F.3d 901, 906 n.20 (11th Cir. 1995) (“[W]hen a

plaintiff attacks a law facially, the plaintiff bears the burden of proving that the law



                                           17
could never be constitutionally applied”) (citing New York State Club Ass’n, Inc. v.

City of New York, 487 U.S. 1, 11, 108 S. Ct. 2225, 2233, 101 L. Ed. 2d 1 (1988)).

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



                                           18
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

International, 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 (1965);

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

                                          19
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.6 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

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


       6
         Alabama suggests two precedents interpreting similar statutes, Sewell v. Georgia, 435
U.S. 982, 98 S. Ct. 1635 (1978), and Red Bluff Drive-In, Inc. v. Vance, 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.

                                                20
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.

Virginia, 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. This circuit has



                                          21
recognized that a state may regulate materials deemed harmful to minors. See

American Booksellers v. Webb, 919 F.2d 1493, 1500-01 (11th Cir. 1990); see also

Ginsberg v. New York, 390 U.S. 629, 88 S. Ct. 1274 (1968) (state may

constitutionally regulate well-being of minors, and within this power to regulate is

the power to restrict access to materials rationally deemed to be harmful to

minors). Application of Alabama's statute to those who sell sexual devices to

minors, to such extent that those devices are deemed harmful to minors, would not

violate any fundamental right. 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



                                            22
the statute is not facially unconstitutional because, in light of Webb and Ginsberg,

it may constitutionally be applied to those who sell to minors sexual devices which

are deemed harmful to minors, the as-applied challenges raised by the plaintiffs,

married or unmarried, implicate different and important interests in sexual privacy.

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”); 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 v. Hardwick, 478 U.S.

186, 209 n.4, 106 S. Ct. 2841, 2853 n.1 (1986)) (Blackmun, J., dissenting)

(questioning validity of categorizations of sexual activity depending on marital



                                          23
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 &



                                           24
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 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.

       REVERSED AND REMANDED.




                                           25
