No Sex Toys Allowed: Georgia City Wins Appeal

A federal appeals court has come down on the side of Sandy Springs, Georgia, in its ordinance banning the sale of sex toys.

The 11th Circuit Court of Appeals on Tuesday said it was "bound" by a 2004 ruling challenging a similar ban in an Alabama city, court records show.

The ordinance challenged in the neighboring state also prohibited the sale of the devices.

Kennesaw resident Melissa Davenport, along with her attorney Gerry Weber, filed suit against the city over its ordinance, which requires people to have a scientific or medical reason or a prescription to purchase any sexual device.

Davenport, a multiple sclerosis sufferer who sought to purchase sex toys to use with her husband, was joined in the lawsuit by Flanigan's Enterprises and Fantastic Visuals LLC (doing business as Inserection) and fellow resident Marshall Henry.

The plaintiffs argued the ban violated the due process clause of the 14th Amendment of the U.S. Constitution. However, the court stated a prior circuit panel's ruling is "binding on all subsequent panels unless and until it is overruled or undermined to the point of abrogation by the Supreme Court or by this court sitting en banc."

In other words, until its holding on the Alabama case is overturned, "we are bound to follow it," the court stated.

Sandy Springs' ordinance labels devices that are used to primarily stimulate one's sexual organs as obscene, and the "selling, renting, or leasing the material" of devices can only be done for "bona fide medical, scientific, educational, legislative, judicial or law enforcement purpose."

City Attorney Wendell Willard said Sandy Springs is "pleased" with the decision.

"Our ordinance is based on similar provision of state law," he said. "The underlying purpose of our enacting this ordinance in 2005 when the city was formed was to have the prohibited conduct made an offense for which the city could enforce the law in city municipal court, and not just state court."

Willard added he's been informed that the plaintiff plans to appeal "to ask for a full court review of this decision."

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