Alabama High Court Says Morality Can Still Justify Commercial Regulation

The New York Times this morning editorializes on a decision handed down three weeks ago by the Alabama Supreme Court, 1568 Montgomery Highway, Inc. v. City of Hoover, (AL Sup. Ct., Sept. 11, 2009). In a 7-2 decision, the court upheld against constitutional attack Alabama's ban on the commercial distribution of sex toys, defined as "any device designed or marketed as useful primarily for the stimulation of human genital organs." The court concluded that "public morality" can serve as a legitimate rational basis for regulating non-private commercial activity. Siding with a view taken by the 11th Circuit, the court concluded that the U.S. Supreme Court's decision in Lawrence v. Texas only precludes using public morality as a legitimate governmental interest when a law regulates conduct that is both private and non-commercial. Two dissenters sided with the 5th Circuit, arguing that the U.S. Supreme Court's decision in Lawrence precludes this ban because it prevents individuals from purchasing sex toys for private intimate use.