Hey, I was using a little poetic license. I couldn’t think of another “will to…” phrase to make my point. 
“I always say, as you know, that if my fellow citizens want to go to Hell I will help them. It’s my job.”
–Oliver Wendell Holmes
I never said that challenging a law in court was inappropriate. I just said it was a inaccurate to paint it as a move consonant with the majority will.
I’m going to attempt to sum this up, in an effort to quell this tempest in a teapot. Let’s go back to the OP, shall we?
As has been noted several times, “clit buzzers” themselves are not illegal in Alabama. Selling them is.
Streets could be full of women wearing vibrators as clothing, for all the relevance it has to Alabama law. They aren’t illegal.
The state was sued by six people, at least one of whom owns a store featuring adult novelty items and clothing, regarding this law. That’s the reason Pryor is defending it. He had no choice. As the state’s lawyer, he has to defend the state when it’s sued.
From what I know of Pryor, he probably approves of the law; he’s definitely right-wing. But he didn’t go around looking for a reason to make this law an issue.
Now, let’s take a look at the factors regarding Pryor’s nomination to the bench of the 11th Circuit Court:
- There’s a conservative Republican president in office.
- The retiring judge is from Alabama.
- The 11th Circuit Court is comprised of Alabama, Georgia and Florida, three traditionally fairly conservative states.
- Alabama’s previous Attorney General, Republican Jeff Sessions, is now a U.S. Senator, and has been for five years.
- Pryor is finishing out his second (and, under the Alabama constitution, his last) term as Attorney General.
- Pryor is well-regarded for his legal expertise.
Given all these factors, Pryor is the obvious choice for Bush to make for the 11th Circuit Court. He’s politically safe (from Bush’s viewpoint).
If you want to froth at the mouth because a Republican conservative is going to be a federal judge, froth away. My mother used to get all worked up about Clinton’s judicial appointments. But nothing here is out of the ordinary, apart from the OP’s misguided attempt to throw sex into the fray.
Actually Sauron, I think the tempest in a teapot had quelled itself through some pretty reasoned give and take. Your post is an attempt to re-open the tempest by overlooking what has been said about the religious right agenda, including its relation to repressive sexual policing. To call Pryor nothing but “a Republican conservative” suggests that you have missed the boat entirely. But, hey, it’s your time.
I came across an interesting cite from a website called legal.com that explained very well what is so obviously controversial and in-your-face about a Pryor nomination (while at the same time saying some good things about the guy). But what the would be the point of trying to persuade you after four pages from about a dozen posters have left no imprint whatsoever?
DCU, it would be interesting to find out more about the deliberations of the Alabama legislature: how much emphasis was placed on the nude dancing, how much on the consequent need to introduce broad obscenity language, and how much on the vibrator ban itself. Short of that, I think we have to accept your view (and Evil’s) that the legislators were just covering their tracks. That said, I do find it worth questioning whether or not, if there had there been serious discussion of the matter, they would have been eager to include the buzzer ban. After all, the press spin on the matter was hardly surprising, and the Georgia jury’s conclusion seems telling. Vibrators just aren’t like nude dancing or even pornography. They are used entirely privately and the kind of stores that sell them don’t necessarily sell other “obscene” materials. They are also often used by married people; they have documented “therapeutic” value; and (although Pryor doesn’t seem to know it) you can even make the argument that they have reproductive value (since female orgasm is conducive to conception, and straight intercourse very often fails to result in female orgasm).
Polycarp, thanks for your kind words, and see my post in the GD Secretary of Education thread for a reply.
Say what? If you think some of the drivel spewed in here was “reasoned give and take,” you have a skewed view of discussions.
I think you’ve missed the entire point of this thread, and the more well-reasoned posters therein. You are imputing “repressive sexual policing” to Pryor with absolutely no basis in fact. I had no intention of recreating the “tempest,” and I resent the implication. I was trying to sum up the possible reasons for Bush’s choice of Pryor and refute the insinuations in the OP.
I shouldn’t refer to Pryor as “a Republican conservative”? Pray tell, what should I call him?
Look, I think the law in question is stupid, and should be repealed. As long as it’s on the books, though, and the state is sued about it, Pryor has to defend the state. He may think it’s the best law since all the “Thou shalt nots,” for all I know.
I have missed no boat. But you might want to keep a lookout for the black helicopters.
Sauron: “I shouldn’t refer to Pryor as “a Republican conservative”? Pray tell, what should I call him?”
See my post above, particularly the paragraph singled out by Polycarp.
" Look, I think the law in question is stupid, and should be repealed. As long as it’s on the books, though, and the state is sued about it, Pryor has to defend the state."
The state was sued and there was a ruling; Pryor appealed the ruling. There has since been a second ruling against the law and, to be honest, I’ve lost track of whether it’s been said that Pryor plans a second appeal. (The cites I looked at were a few months old and said he was thinking about it.) In either case, Pryor didn’t have to go the extra mile; he opted to. Why? Well, he may have believed it was his ethical and professional obligation as AG to argue that artificially induced orgasms sought for their own sake constitute a threat to the health and morals of Alabamans (an argument that is not explicit in the language of the statute, and which may never have crossed the lips of any legislator when this comprehensive obscenity legislation was passed). On the other hand, he may also have been motivated by a political and/or personal commitment to sexual policing of this kind, connected to his long record of espousing religious-right causes (for which record see some of the “drivel spewed” above).
Oops, I should have added yet another possible motivation, suggested by Dewey. Pryor may have also found the case interesting with respect to its legal merits.
And while I’m at it, I do think this was a fairly reasoned debate. I particularly appreciated the input about Candian AGs.
I should call Pryor a “theocratic agenda-pusher”? I don’t think that’s a recognized political party. Since Pryor is a registered Republican, and since he is undoubtedly conservative, I think the term “conservative Republican” fits nicely.
As DCH ably demonstrated earlier in this thread, Pryor is 2-0-1 in his arguments regarding this law.
Incorrect. Pryor had to go the extra mile because the Constitution specifically grants the individual states powers that the federal government does not have. When a federal court attempted to tell Alabama that this law wasn’t valid, Pryor defended his state’s right to enact said law. To do otherwise would be a de facto authorization for the federal government to rewrite the Alabama constitution.
Are you just not reading, or what? Artificially induced orgasms are peachy-keen with Alabama law. Ain’t nothing against 'em nowhere. It’s selling the products that produced artificially induced orgasms that’ll get you in trouble. Alabama women (and men, for that matter) can vibrate to their heart’s content with nary a concern for the unwanted attention of the local constabulary.
In other words, you have no proof regarding Pryor’s motivations, but you’d rather assume the worst. Tell you what: Prove to me that Pryor is the one that got the language of this law written, and I’ll stop pointing out the flaws in your arguments.
Pryor appealed to the 11th Circuit and won; the appeals court ruled in favor of Pryor on all issues except for one narrow point which required further findings of fact, so they remanded the case back to the trial court to establish the facts on that narrow point. The trial court found said facts, and once again found for the plaintiffs. Now Pryor is again appealing to the 11th Circuit.
People in this thread are painting this as though Pryor has been keeping alive a dog of a case where he keeps losing. That is decidedly NOT the case. He has been very successful in the 11th Circuit on this matter. The 11th Circuit basically said in the first appeal that the trial court was wrong and Pryor was right on 2/3 of the arguments presented, and that the trial court may have been wrong on the remaing argument. **
Yes, he did. His professional obligations demanded it. A lawyer cannot toss aside his ethical obligations at a whim. **
There’s no “may” about it. It is his professional obligation. Period, full stop, end of story.**
A measure of common sense, please. This is a bit of moral legislation. When a state passes a law of this kind, it is clearly trying to regulate public morals. YMMV on how you feel about the propriety of such regulation, but it’s silly to suggest that isn’t what the state is doing. Pryor’s argument is therefore correct on that score. **
Maybe, maybe not. Being a social conservative may increase the odds Pryor adores this kind of legislation, but it does not guarantee it.
Dewey, Yipes, I’m getting very bored of repeating myself. This thread is droning on like a vibrator on self-charging Double Ds ;).
First, yes, Pryor won the first appeal: apparently because the higher court wanted the judge to address the “rights” issue. I could post cites on this and use more specific language, but I’m sure you know what I mean. The same judge reviewed the case and this time addressed the rights issue and, on that basis, ruled once again that the law was no darn good.
Sorry if I left out the winning of the first appeal–it wasn’t my intention to deny it. IMO it’s not very important because it has more to do with the higher court’s readiness to see that this was really to do with rights all along, and not with the more circuitous reasoning that was originally offered. And I agree, that Pryor isn’t necessarily, at this point, keeping the dog alive in undue fashion; though I do wonder about the second appeal (do you know if one is being contemplated?).
"There’s no “may” about it. It is his professional obligation. Period, full stop, end of story.
That may be the end of the story, but you cut off the end of my sentence and thereby obscured its meaning. Yes, Pryor has an ethical and professional obligation to serve the state in an ethical and professional fashion. But the point I was stressing is that there is more than one way for any given AG to do that. It is not, in other words, an automatic obligation of an AG to appeal; an AG can and should appeal when he or she believes its his or her ethical obligation to do so; but there may also be many ethical/professional reasons for not doing so. That was the point I wanted to stress to Sauron, who may have assumed that there was no way to decline to appeal under these circumstances; that there was, to use a voguish term right now, some “automaticity” about the need appeal.
I would add though that I think it’s fair to presume that, if asked, Pryor would say that he believed his decision to appeal was his view of the best ethical and professional response.
“This is a bit of moral legislation. When a state passes a law of this kind, it is clearly trying to regulate public morals. YMMV on how you feel about the propriety of such regulation, but it’s silly to suggest that isn’t what the state is doing.”
Actually, I think no one’s mileage varies on the silliness. (Has anyone come out here to support the ban itself on these or any other grounds?) I agree that Alabama was trying to regulate public morals but I think there is still evidence to suggest that this particular clause was a relatively minor and perhaps entirely obscure addition; that the legislation was perceived, generally, as anti-obscenity legislation with nude dancing especially in mind; and–most important–that there was no deliberation whatsoever as to the impact on health or morals of orgasms induced for their own sake.
Indeed, as Sauron himself points out there is no law against using a buzzer in Alabama; only against selling such buzzers. That seems to suggest that–to the extent that this clause was at all foregrounded–it was foregrounded on the assumption that buzzer stores were part of a wide-ranging group of “obscene” threats to public morality–i.e., something to do with the stores themselves, or perhaps the marketing of buzzers. But by arguing that orgasms sought artificially for their own sake jeopardize the health and morals of Alabamans, Pryor took this in a very different direction. I see no evidence that the legislation itself authorized that kind of truly Puritanical attitude towards the non-reproductive orgasm. This suggests to me that Pryor went more than the extra mile–and that is especially so if it turns out that the buzzer clause was never discussed by the legislature in any fashion.
“Being a social conservative may increase the odds Pryor adores this kind of legislation, but it does not guarantee it.”
Well, as you know, in my view Pryor is more than a social conservative; he is a social conservative who is a known partisan of the religious right agenda. To me that suggests the likelihood of extra-professional motiviation in this case. But, of course, there is no guarantee.
Sauron: : I should call Pryor a “theocratic agenda-pusher”? I don’t think that’s a recognized political party. Since Pryor is a registered Republican, and since he is undoubtedly conservative, I think the term “conservative Republican” fits nicely."
Not being a recognized political party hardly matters. William Safire is a social conservative. Many Jews are social conservatives. But these people are not pushing the Christian right agenda. (I suppose there are theocratic Jews too, though I can’t think of any off the top of my head.)
In any case, I don’t ask you to agree with my reasoning or to adopt my language. But I do ask you, when you claim to be “summing up” a debate, to do more than repeat your side of the argument. 
Dewey, I think you could clarify things with one declaration.
Do you imagine that Mr. Pryor is not, in fact, a pickle-weaned Calvinist bent on half-assed Puritanism, and only pursued the case to an appeal as obliged by stern duty
OR
He really is a winger-nut, and, hey, whats wrong with that?
This is simply false, as would be apparent to anyone who bothered to read the opinion.
There were three arguments presented on appeal: a rational basis argument, a facial invalidity argument, and an “as applied” argument.
Pryor WON OUTRIGHT on the rational basis and facial invalidity arguments. No need for remand, no need for additional facts, no need for the trial judge to say anything further. On those two arguments, Pryor scored an outright victory. If the plaintiffs had not offered the third argument discussed below, then there would have been no second hearing at the trial level, and the only way the case would be re-heard would be if the plaintiffs appealed for an en banc hearing at the 11th Circuit or if they appealed to SCOTUS.
It was only on the “facial invalidity” argument that the 11th Circuit required additional findings from the trial judge. And the 11th Circuit may disagree with the trial court’s application of law to fact on that narrow argument on the second appeal – indeed, I suspect it is likely to do so.
Why folks in this thread are according so much weight to the trial judge is beyond me; he’s already seen substantial parts of his conclusions of law be reversed by the 11th Circuit in the first go-round. Why is everyone so damned sure he’s right this time around? **
In the situation as presented, it is an ethical obligation of the AG to appeal, and there are no ethical rules which would counter that obligation in play. If there are, I’d like to hear them. Pryor’s client has a significant chance for success on appeal. It would virtually be malpractice for him to fail to take that appeal. “Belief” doesn’t enter into it. On the facts as given, the AG has an obligation to his client to appeal. Period.
elucidator: I don’t have enough data to make a determination as to where Mr. Pryor rests on the Puritanism scale. He may be a social conservative, but that alone doesn’t make him a cross between Fred Phelps and Inspector Javert.
I am certain, however, that the mere fact that he took up the appeal of the case in question does not provide any substantial evidence one way or the other.
[Foghorn Leghorn] Look sister, is any of this filtering through that little blue bonnet of yours? [/FL]
OK, let’s try this again. We have a recently-passed statute, written with near-total clarity and approved by the legislature and governor. It is thus entitled to the presumption that it reflects the will of the people of Alabama. It is not facially unconstitutional under either the Alabama or U.S. Constitutions. How can an A.G. execute his obligation to the State of Alabama to defend its laws - even one as silly as this one - without filing an appeal, unless he is to substitute his own judgment for that of the legislators? Although I am not nearly as sanguine as Dewey about democracy - I think a very little goes an exceedingly long way - even I recognize that we turn attorneys general into arbiters at our own peril.
Dandy. Now, would you kindly back this up with some sort of evidence? Something that isn’t regurgitated via Pryor’s political opponents? Maybe his campaign materials for the two times he was elected to the A.G.'s office?
And what does that have to do with price of kumquats in Lower Slobovnia? For the upteenth time, this was about banning the sale, not use. All they have to show is that selling sexually oriented toys is morally deleterious - an argument I think anyone here could sketch out in about 42 seconds - and voila, the argument’s over. Let’s go back to the quote from Mr. Pryor you cited:
You seem to have missed the first two words. Commerce in the pursuit of orgasms is the issue. You have presented precisely no evidence that Pryor has anything against said pursuit itself - it’s the sale that presents social problems.
The first half of this analysis is irrelevant unless you can find evidence that Pryor has a problem with the pursuit itself. As for the second - that the law is somehow illegitimate because it wasn’t discussed - is simply absurd. We are entitled to assume that our representatives can, and do, read, even if it’s often a bit of a stretch.
Give us original evidence and I’ll think about it. Right now you’re not doing very well.
Easy for Sauron to do when you do such a poor job of advancing yours.
Dewey: “If the plaintiffs had not offered the third argument discussed below, then there would have been no second hearing at the trial level…”
Right, but they did offer it, and that was the “rights” argument to which I was referring above. BTW, I most certainly did read your links over the weekend. As I said, today I was going from memory on a day when this thread was nothing but a diversion from my own pressing ethical and professional agenda ;).
That said, what you have recapitulated in detail tallies with the abbreviation I offered earlier. In plain English the “rational relation” argument didn’t cut it with the higher court; Judge Smith reconsidered and the second time round found that the law violated the right to privacy. The rest of the details of the case (where precisely Pryor’s first round of victories were) are not specifically relevant to my argument–unless perhaps you have further information about the second appeal.
Remember, that I have conceded that the legal merits of this case may well be of interest in themselves to Pryor–I even took the trouble to add a second post to mention it!
Why is everyone so damned sure [Judge Smith] is right this time around?"
Probably because all of us are inclined to believe that a sexually repressive law such as this one does indeed violate the constitutional right to privacy. The other argument, involving “rational relation” felt, even to a layperson such as myself, like a kind of backdoor approach (though I’m sure that there were good enough reasons for giving it a try as I understand that “rights” issues can be tricky.)
"Pryor’s client has a significant chance for success on appeal. It would virtually be malpractice for him to fail to take that appeal. "
That is your opinion. Certainly since you are a lawyer with a much finer grasp (and, at the moment, better memory ) of the legal points of the challenge your opinion of the legal merits carries more weight than mine. That said, it simply a fact that the Alabama AG isn’t forced to appeal this case; and that if a different AG took over who felt strongly disposed not to appeal, that individual would be able to explain the ethical and professional basis for his/her decision. The AG of any state has a lot to do and has to balance his or her priorities while s/he’s working on the taxpayer’s dime. Further appealing part of a law that was not the focus of the original legislation–a part of a law that might have been enacted without the full understanding of some legislators–even with the prospect of potential success–could be deemed by any number of very ethical AGs as a waste of resources. That Pryor himself feels otherwise is not, of course, being debated. Ethics involve questions of judgment and AGs have a certain amount of autonomy to exercise theirs. Not every potential AG in Alabama would judge these circumstances as Pryor has done, or as you do; and those who would not would not be violating their ethical duties as they understood them. *I think that’s a simple enough point and I stand by it. *
OxyMoron, my reply to Dewey addresses your initial comments as well. Unfortunately, later on, you seem to have misunderstood what I was saying.
For example:
Mandelstam:“I would add though that I think it’s fair to presume that, if asked, Pryor would say that he believed his decision to appeal was his view of the best ethical and professional response.”
OxyMoron replies: " Dandy. Now, would you kindly back this up with some sort of evidence ? Something that isn’t regurgitated via Pryor’s political opponents?"
Here you’re (somewhat inexplicably) objecting to my conceding to what has all along been Dewey’s main point–that Pryor’s main reason for appealing was to fulfill his ethical duty as AG. Do you think if we asked Pryor he would say that he appealed the case for unethical, unprofessional reasons? Or is this a backhanded way of saying that Dewey is in fact one of “Pryor’s political opponents”?
Then you object to my discussion of Pryor’s arguments with respect to orgasm:
*"And what does that have to do with price of kumquats in Lower Slobovnia? For the upteenth time, this was about banning the sale, not use. …Let’s go back to the quote from Mr. Pryor you cited:
‘…[Pryor] argued that "commerce in the pursuit of orgasms by artificial means for their own sake is detrimental to the health and morality of the State.’
…Commerce in the pursuit of orgasms is the issue. You have presented precisely no evidence that Pryor has anything against said pursuit itself - it’s the sale that presents social problems."*
Sorry, Ox, but you’ve missed my point. The logic of this law was to curb the moral threat posed by “obscenity”; it was not to curb orgasm or the private pursuit thereof. Notice that I’m actually emphasizing the point that you seem to think I don’t get: the distinction between sale and use. As I see it by bringing up orgasm itself rather than the alleged obscenity or prurience of selling buzzers that stimulate human genitals Pryor introduces use into his argument where it was never directly contemplated by the legislature. This is, admittedly, subtle, but then legal arguments generally are.
Here’s another instance where you just don’t get my point:
Mandelstam: “I see no evidence that the legislation itself authorized that kind of truly Puritanical attitude towards the non-reproductive orgasm. This suggests to me that Pryor went more than the extra mile–and that is especially so if it turns out that the buzzer clause was never discussed by the legislature in any fashion.”
Ox: " The first half of this analysis is irrelevant unless you can find evidence that Pryor has a problem with the pursuit itself."
No, you misunderstand. Pryor’s personal opinion on orgasm isn’t directly of interest; what is is his readiness to argue that orgasm itself is at issue–rather than the sale of obscene or prurient devices for genital stimulation.
“As for the second - that the law is somehow illegitimate because it wasn’t discussed - is simply absurd.”
No, not illegitmate. My point is simply that, under these circumstances, there is that much less reason to believe that this argument reflects the legislators’ intent and, therefore, the will of the people. This concerns a given AG’s judgment as to his/her ethical obligation to give this case his/her all.
“Give us original evidence [of Pryor’s partisanship with the religious right] and I’ll think about it.”
Which part of his activism on behalf of prayer in schools and prayer and biblical doctrine in a public courtroom failed to constitute “evidence” for you?
“Easy for Sauron to do when you do such a poor job of advancing yours.”
Look, Oxy, this may come as a shock to you, but I don’t care in the least what you think of me; and I find your attempts to be condescending to me fairly hilarious, not least b/c from what I’ve seen here you’re not even keeping up with what’s being said.
Arguing with Dewey is fun and worth my time because he’s reasonable and knows what he’s talking about. He would not profess to “sum up” a debate by leaving out the other side. I disagree with him vociferously: he and I are coming from very different political and ideological perspectives, as well as different disciplinary backgrounds. But we both have critical skills and something to say. The same is true of many other posters who have taken part in this thread. To that extent, I learn things from taking part in debates with people of opposing viewpoints. But I am not interested in ad hominem dressed up in the form of specious and repetitive argument. When a thread comes down to that, it’s more edifying to start calling names.
Although if I had more time it might be delightful to trade barbs with a charming fellow such as yourself, I think I’ll decline the pleasure. The meat of the debate here is approaching glue factory territory for me. If Dewey or any other reasonable poster wants to make a legitimate argument I’ll respond. But otherwise I think I’ve made my points exceedingly clear to anyone with the willingness and ability to consider them.
What’s your point here, Sauron? Granted, there is no law against vibrator use, but do you imagine this means that Alabama’s moronic legislators have no problem with vibrators? If so, why did they ban their sale?
**In other words, you have no proof regarding Pryor’s motivations, but you’d rather assume the worst. Tell you what: Prove to me that Pryor is the one that got the language of this law written, and I’ll stop pointing out the flaws in your arguments. **
You and DCH. Heh. Such effort, to so little effect. Pryor walks like a duck, he quacks like a duck, he flies like a duck. He’s a DUCK!!!
I think this would be good place to go into some detail as to the three arguments, because it’s fairly clear from your posts that you have only a passing understanding of what is being argued. Here is the 11th Circuit opinion again, and here is the district court opinion from the rehearing (you’ll want to click the “Memorandum of Opinion” from Williams v. Pryor). Here are the three arguments:
1. RATIONAL BASIS
This argument stems from the 14th amendment’s equal protection clause. When a suspect or quasi-suspect class (race, gender, etc) or core fundamental right (speech, etc) is not at issue, the courts apply the rational basis test. This means the law must only bear “a rational relation to some legitimate end.” It is a highly deferential standard; a law will be constitutonal under this analysis if “any reasonably conceivable state of facts” could provide a rational basis for the statute.
The state set forth three bases for its law: (i) banning the public display of obscene material; (ii) banning “the commerce of sexual stimulation and auto-eroticism, for its own sake, unrelated to marriage, procreation, or familial relationships;” and (iii) banning the commerce in obscene material. Both the district court and the 11th Circuit agreed that these were legitimate purposes that the state could constitutionally pursue.
The district court held that the law in question was not rationally related to the stated purposes. The 11th circuit reversed, and convincingly so. Heck, it seems to me to be absurd to suggest the law in question isn’t rationally related to the above-stated goals.
2. FACIAL INVALIDITY
A facial challenge requires that the law be invalid in every possible instance – that “no set of circumstances exists under which the Act would be valid.” Plaintiffs (including “user plaintiffs,” i.e., married women who would buy the proscribed products) try to claim a “right to use” sexual devices under the constitutional right to privacy. District court agrees, 11th Circuit reverses.
As the 11th Circuit correctly notes, the right to privacy in the sexual arena has been confined to the right to control procreative choices, i.e., the right to purchase contraception and utilize the abortion procedure. It has been specifically held by the Supreme Court that the right to privacy is not a blanket protection of all types of sexual activity (see, e.g., Bowers v. Hardwick, 478 U.S. 186 (1986), holding Georgia’s sodomy statute constitutional).
And, of course, that’s taking the plaintiff’s position as a given. The Alabama law does not ban the use of sexual devices, only their sale. Plaintiffs may have to go to extra efforts to obtain such devices – such as ordering them over the Internet or by mail-order – but they may nonetheless use them without fear of prosecution. It seems to me the right sought is really a “right to sell” such devices, and it is exceedingly generous of the 11th Circuit to accept the plaintiff’s definition of the right sought.
3. “AS APPLIED” INVALIDITY
The final challenge is mounted by the “user” plaintiffs: they claim that the law is unconstitutional as applied to them, as it invades the sanctity of the marital bedroom. Note that as many cases have whittled away distinctions based on marital status, what the plaintiffs are basically arguing here is that you can constitutionally deny vibrator sales to homosexuals, but not to heterosexuals. That’s an ugly little argument, isn’t it?
For such a challenge to be successful, the plaintiffs must show two things: that the right is (i) “objectively, deeply rooted in this Nation’s history and tradition” and (ii) “implicit in the concept of ordered liberty.” The 11th Circuit said it needed more factual findings on these two prongs to resolve this argument.
On remand, the district court tossed out a fairly extensive historical analysis, ultimately concluding that there is a deeply rooted tradition of sexual privacy in the nation’s history. But to get there, he has to minimize a lot of solid evidence to the contrary presented by the AG. Heck, in many places he’s reduced to saying “there was a law on the books, but it was rarely enforced” – which raises the obvious question, “and how is that different from the current situation?”
I think given all that, there is a substantial chance for reversal on this third and final point upon the second appeal. AG Pryor’s arguments are not frivolous.
One final unrelated point: some posters early in this thread expressed concern that the use of vibrators for therapeutic purposes would be hindered by this law. Not the case. There is a “safe harbor” for medical use:
Not hugely important, but I thought it a worthy FYI.**
An opinion held without the slightest inquiry into what the law actually says, the arguments presented, or any other relevant fact. I have yet to see in this thread one post that states why the poster is so sure Judge Smith is correct, other than “I just don’t like this particular law.” **
If the AG thinks he has a significant chance for success, it is his ethical duty to appeal a challenge to the laws of the state. Period. If an AG “felt strongly disposed not to appeal” even though he thought victory was likely, and thus elected not to appeal, that AG has violated his obligations as an attorney and to the state. **
Did you even bother read OxyMoron’s post? He refuted this little bit of nonsense quite well IMO. And your response to his points was just repetition of the same things you said in the first place.
**
Oxy is an exceedingly reasonable poster. He is also a lawyer who has left the practice of law. Which makes him the smartest lawyer of them all.
Sweet mother of Abraham Lincoln. Where to begin.
Let’s see:
In other words, I’m not reasonable and I don’t know what I’m talking about, because I “summed up” the inconsistencies in the OP. Let’s review them again, shall we?
- Vibrators are not illegal in Alabama.
- Pryor, as Attorney General, has to defend the state when it’s sued.
Tell me where I went astray with my summation.
To decline to appeal this case would be flying in the face of the powers that the U.S. Constitution specifically grants to the states.
Dewey Cheatem Undhow, earlier in this thread, posted the law as it was originally and noted the revision that was added specifically to include banning the sale of vibrators. It was not a “relatively minor and perhaps entirely obscure addition.” In fact, the law is on the books with the changes underlined.
I fail to see how this law is sexually repressive. It’s commercially repressive, sure. Just like the law against selling alcohol on Sundays. But I don’t see any fewer people drinking because of that law.
Show me where Pryor did this. You apparently are doing exactly what OxyMoron says you are – ignoring the first two words in Pryor’s quote. “He argued that ‘commerce in the pursuit of orgasms by artificial means for their own sake is detrimental to the health and morality of the State.’” Pryor isn’t saying orgasm itself is the issue; he’s saying the commerce in the pursuit of same is detrimental to the health and morality of the State.
I dunno. I haven’t polled Alabama’s legislators for their views on vibrators. I know many of them drink, though, and the blue laws are still on the books. Since you’ve obviously talked with each of them regarding their views on vibrators, what were your findings?
Total hijack, but I cannot resist it:
“But, Your Honor, I bought the vibrator in case I found myself in bed with a state legislator or a judge and he wanted me to use it on him!” 