This is a PSA: If you’re thinking of buying or selling a vibrator, strap-on, or masturbation sleeve in Alabama, stop! Commerce involving sex toys is illegal in the state and subject to a fine of up to $10,000 and a year in jail for a first offense and one to ten years in jail for recidivism.
Alabama isn’t the only state with some weird sex laws. But whereas most pieces of moralistic regulation on one’s bedroom activities are archaic and unenforced, pending an excuse for official annulment, the Alabama ban on sex toys is both recent, less than 20-years-old, and policed—although it is riddled with loopholes. And the fact that it’s survived several legal challenges and personal liberties campaigns is a testament to just how squidgy our legal system can be.
Originally the law, known as the “Anti-Obscenity Enforcement Act,” was proposed in 1998 as a way for Madison County to end erotic dancing services to save the public from encountering such “filth” in their daily lives. But the bill exploded, as discussions on sexual exposure in America are wont to do, to include a slew of “obscenities,” amongst them the sale of sex toys. The state never went so far as to ban the personal use of these devices (unlike other local, city-level governments in states like Georgia, Nebraska, and Utah, which have banned them outright). And the legislature even made generous provisions for the sale and purchase of sex toys for educational, judicial, medical, or scientific ends—although what a judicial sex toy is, I’m not sure I really want to know. But the law still forced local vendors to shutter their shops.
It seems like there’s a ton of legal precedent for slapping down such a ban. Between Griswold v. Connecticut, where pharmacist successfully challenged a state ban on the sale of contraceptives in the Supreme Court, and Lawrence v. Texas, where the justices shot down state sodomy laws completely, it seemed like our high legal authorities had come down firmly against moralizing legislation and on the side of sexual liberty and the means to achieve it. A 2008 case in the 5th Circuit Court even explicitly invalidated a Texas ban on the sale or promotion of sex toys, seemingly directly telegraphing how later courts should treat legislation like that in Alabama.
Yet despite facing litigation since its 1998 enactment, and an initial victory for sex toy vendors in a lower court in 1999, throughout the 2000s mid-level courts have insisted on maintaining the legitimacy of the Alabama ban, while the Supreme Court has refused to hear the case out. The ban stands because even Supreme Court judgements are fungible, and local judges have chosen to read the protections on sexual liberties as referring to one’s personal rights, but not to the private sphere. So legists can successfully argue that, so long as you’re still allowed to use sex toys procured outside of the state, they don’t run afoul of any liberties by regulating purely commercial activities in Alabama (running roughshod over the fact that restricting access can be construed as impinging on the ability to practice and legally insured express a personal liberty).
Fortunately for those looking for a little extra stimulation in Montgomery or Mobile, entrepreneurs are just as crafty as lawyers. One formerly boxed out sex toy vendor started operating a drive through dispensary in 2010, asking customers to fill out anonymous questionnaires including questions about their problems with sexual fulfillment. This allows her to successfully argue that she’s selling her sex toys for legal medical purposes—no matter the buyers’ true intents. And it seems that she’s doing solid business without any real challenges.
Even though Alabama’s sex toy buyers and sellers are figuring out how to navigate this odd legal landscape, this whole affair still points out how tricky and deficient legal systems can be in the face of determined curmudgeons. The arguments used to advance the ban were all very slippery slope—selling sex toys will encourage prostitution and incest (somehow)—yet they flew because of the political and cultural climate in which they were advanced, and because the law was not robust enough to stand against them. The result is bad for business, inconvenient for many determined purchasers, and just a poor reflection on the logical capacity of the Alabama legislature that can’t effectively be challenged. As a result, folks will have to deal with roundabout means to circumvent an toothed-yet-weak, bitter law until someone finds a way of either launching a bold new court case or convincing locals to repeal the ban in a vote.
Until that happens, observe extreme caution when stocking up for sexy times in the Deep South.
