Without comment, justices let stand a lower court ruling that said Alabama had a right to police the sale of devices that can be sexually stimulating.
The American Civil Liberties Union filed the challenge on behalf of merchants and users seeking to overturn the 1998 state law. They say the Supreme Court's 2003 ruling in Lawrence v. Texas, which decriminalized gay sex on privacy grounds, protects sex toy users from unwarranted state intrusion in their homes.
"The sexual devices covered by the statute have many recognized beneficial uses and are used by consenting adults in deeply private acts that are beyond the reach of government regulation," argues the filing on behalf of Sherri Williams, an adult novelty retailer, and seven other women and two men.
A divided three-judge panel of the Atlanta-based 11th U.S. Circuit Court of Appeals disagreed. It said in a ruling last July that siding with the sex toy merchants could open the door to the legalization of undesirable sexual behavior such as prostitution.
"If the people of Alabama in time decide that prohibition on sex toys is misguided, or ineffective, or just plain silly, they can repeal the law and be finished with the matter," the court said.
"On the other hand, if we today craft a new fundamental right by which to invalidate the law, we would be bound to give that right full force and effect in all future cases including, for example, those involving adult incest, prostitution, obscenity, and the like."
In a dissent, Circuit Judge Rosemary Barkett said the decision was based on the "erroneous foundation" that private sexual acts can be made a crime in the name of promoting "public morality."
The state law bans only the sale of sex toys, not their possession, and it doesn't regulate other items including condoms or virility drugs. Residents also may lawfully purchase sex toys out of state for use in Alabama, or use them if the devices have other recognized medical or therapeutic uses.
The case is Williams v. Alabama, 04-849.