Rather than relying on the substantive component of the Fourteenth Amendment’s Due Process Clause, as the Court does, I base my conclusion on the Fourteenth Amendment’s Equal Protection Clause.
"If the people of Alabama in time decide that a 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."
"If the Supreme Court says that you have the right to consensual (gay) sex within your home, then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the right to adultery. You have the right to anything."
Circuit Judge Rosemary Barkett disagreed, saying the decision was based on the "erroneous foundation" that adults don't have a right to consensual sexual intimacy and that private acts can be made a crime in the name of promoting "public morality."
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