BIRMINGHAM, Ala. – A federal appeals court Wednesday upheld a 1998 Alabama law banning the sale of sex toys in the state, ruling the Constitution doesn’t include a right to sexual privacy.

In a 2-1 decision overturning a lower court, a three-judge panel of the 11th U.S. Circuit Court of Appeals (news – web sites) said the state has a right to police the sale of devices that can be sexually stimulating.

The American Civil Liberties Union (news – web sites), which represented merchants and users who sued to overturn the law, asked the appeals court to rule that the Constitution included a right to sexual privacy that the ban on sex toy sales would violate. The court declined, indicating such a decision could lead down other paths.

“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.”

Attorney General Troy King said the court “has done its duty” in upholding the law.

Sherri Williams, an adult novelty retailer who filed the lawsuit with seven other women and two men, called the decision “depressing.”

“I’m just very disappointed that courts feel Alabamians don’t have the right to purchase adult toys. It’s just ludicrous,” said Williams, who lives in Florida and owns Pleasures stores in Huntsville and Decatur. “I intend to pursue this.”

U.S. District Judge Lynwood Smith Jr. of Huntsville has twice ruled against the state law, deciding in 2002 that the sex toy ban violated the constitutional right to privacy. The state appealed both times and won.

The state law bans only the sale of sex toys, not their possession, the court said, and it doesn’t regulate other items including condoms or virility drugs. “The Alabama statute proscribes a relatively narrow bandwidth of activity,” U.S. Circuit Judge Stanley F. Birch Jr. wrote.

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.”