Two consenting adults may engage in heterosexual or homosexual conduct in the privacy of their own home, said the U.S. Supreme Court last year in Lawrence v. Texas.

But, in Alabama or Texas, should those two persons (regardless of gender) decide to buy a dildo or other sexual device, they can go to jail.

You may remember that earlier this year I wrote about the plight of a Texas teacher who was charged with selling “obscene devices” at her Tupperware-like parties. She was selling vibrators.

Rather than risk another embarrassing defeat at the Supreme Court, prosecutors in Texas wisely decided to drop the charges against the Texas woman.

You may also remember I mentioned that Alabama had a similar statute in which sellers of vibrators were seeking to have the Alabama law declared unconstitutional. Federal courts in Alabama have juggled with the issue for the last few years; however, last July a federal appellate panel upheld the Alabama law that makes it illegal to sell a vibrator.

We’d all like to see the Supreme Court take up the “sex toy” case, which would no doubt become political fodder in this election year.

Do voters want the next President to appoint persons to the federal courts who do not believe the Constitution protects sex between consenting adults in their own homes?

It’s a fair question. That’s because the former Attorney General of Alabama who has vigorously defended the “defense against dildo” law is William Pryor. President Bush nominated him to the federal Appellate Court. When he wasn’t confirmed, Bush made him an interim appointee.

It’s tough to defend a judge who believes the Constitution doesn’t protect the rights to sexual intimacy. But the President will have to if he agrees with the federal court upholding the banning of dildos.

The court that ruled on the “dildo case” barely noted the existence of Lawrence v. Texas.

This court, however, disregarded Lawrence v. Texas and found that the Alabama law merely restricts the sale of sex toys, and the state of Alabama has a legitimate reason to curtail any commercial activity it deems immoral.

In short, the court treated the sale of sex toys just like the sale of any other commercial product. Just like a state can make it illegal to possess a ferret or a cloned fish, it can also prohibit the sale of dildos, because the state deems it immoral.

While two judges agreed with Alabama, a dissenting judge wrote that the court was wrong. First, he noted that there exists a right to privacy to engage in consensual sex. Citing Lawrence v. Texas, the judge noted that whether a state criminalizes sodomy or the use of a sexual device, “their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home.”

He noted that Alabama’s statute, by prohibiting the sale of sexual devices, thus affects the same “vital” liberty interest in adult consensual sexual intimacy threatened by the sodomy statute in Lawrence v. Texas.

As for Alabama’s argument that it has a right to regulate the sale of sex toys because of its interest in public morality, the judge noted that the Supreme Court ruled that states cannot sustain a law criminalizing private sex on moral grounds.

Whether Alabama’s Legislature believes that the use of sex toys may be improper or immoral, the Supreme Court has explained that “[t]hese considerations do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law. Our obligation is to define the liberty of all, not to mandate our own moral code.”

While the court in the “dildo case” is clearly wrong, it’s not certain that the Supreme Court will take the appeal of this case. Unlike Lawrence v. Texas, which presented the compelling issue of consensual sodomy, there isn’t the same level of support for taking up this case. The court was well aware that sodomy statutes had been used by states and the federal government to deny gays and lesbians with equal rights, but there are few people in comparison who are being disenfranchised because of the laws in Alabama and Texas.