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Jenner & Block recently filed an amicus brief in the Eleventh Circuit Court of Appeals on behalf of the DKT Liberty Project and Cato Institute, in a case challenging the constitutionality of a city ordinance criminalizing the sale of sexual devices. In an en banc review of Flanigan’s Enterprises, Inc. of Georgia, et al. v. City of Sandy Springs, Georgia, the appellate court will re-examine an earlier decision of a three-judge panel upholding the ordinance. That decision was based on a 2004 Eleventh Circuit precedent in Williams v. Attorney General, holding that an Alabama sex-toy sales ban did not violate the Fourteenth Amendment’s Due Process Clause.
In the amicus brief filed on April 17, 2017, the firm team of Partner Lindsay C. Harrison and Associate Karthik P. Reddy argue that Williams should be overruled en banc because it is inconsistent with more recent US Supreme Court precedent in United States v. Windsor (finding unconstitutional the Defense of Marriage Act’s definition of marriage as between a man and a woman) and Obergefell v. Hodges (recognizing same-sex marriage across the United States). Based on these decisions, the brief contends, the Supreme Court has explicitly recognized that the Constitution protects private sexual choices as fundamental, and urges the Eleventh Circuit to hold that the Due Process Clause protects a fundamental right to be free from governmental intrusion regarding private consensual sexual behavior.
The DKT Liberty Project is a nonprofit whose mission is to promote individual liberty and defend the rights to privacy and personal autonomy. Cato Institute is a nonpartisan public-policy research foundation dedicated to advancing the principles of individual liberty, free markets and limited government.