Dahlia Lithwick on Alabama dildo case

Dahlia Lithwick at Slate explains last week's appellate court ruling in the Alabama dildo ban case.

The big fight comes down, very simply, to this: Does the Constitution protect, as a "fundamental right," private, consensual sexual activity that harms no one? The answer to this turns largely on how you choose to read Justice Anthony Kennedy's majestic-yet-inscrutable majority opinion in Lawrence v. Texas—the gay sodomy case decided two terms ago by the Supreme Court. Because clearly, Lawrence did one of two things: It either carved out a place in America's bedrooms that is free from police scrutiny, or it simply added one more choice (in this case, sodomy) to a limited menu of constitutionally protected intimate activities. The sad truth is that Lawrence tried to do both. As a result of this muddiness, judges on either side of the culture wars are reduced to playing interpretive games. All of which proves that everyone's a judicial activist when it comes to interpreting vague cases.

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