The city of Sandy Springs plans to end its controversial ban on sex-toy sales, a move coming days after a federal court agreed to decide whether the law is unconstitutional.

Deletion of the entire “sexual devices” section of city code is on the City Council’s March 21 “consent agenda”—a list of several items approved by a single vote without discussion, explanations or hearings on each.

That sex-toy law was challenged as unconstitutional in a 2014 federal lawsuit by a local adult bookstore and two residents. Last year, the law was upheld by a three-judge panel in federal court, but with an unusual ruling that essentially encouraged another appeal. On March 14, the full 11th Circuit U.S. Court of Appeals in Atlanta threw out the ruling that upheld the law and agreed to re-hear the case.

The 11th Circuit U.S. Court of Appeals’ Elbert B. Tuttle Courthouse in downtown Atlanta. (Special)

City Attorney Wendell Willard declined to comment about the law’s deletion until after the council meeting.

Cary Wiggins, an attorney representing the bookstore Inserection in the lawsuit, also declined immediate comment, though he indicated he was unaware the city planned to kill the law in question.

The sex-toy battle, which has garnered national media attention, spun out of the city’s ongoing legal battles about where adult bookstores and strip clubs can legally operate, which has spawned three major lawsuits on constitutional questions.

The sex-toy law, enacted in 2009, is part of a larger ban on distribution of “obscene materials.” Officially classified as Article IV, Chapter 38, Section 120, Subsection C of city code, the law reads as follows:

“Any device designed or marketed as useful primarily for the stimulation of human genital organs is obscene material under this section. However, nothing in this subsection shall be construed to include a device primarily intended to prevent pregnancy or the spread of sexually transmitted diseases.”

The law was challenged by the owners of Inserection, an adult bookstore located at 7855 Roswell Road, across the street from City Hall. Inserection claims in its lawsuit that the law violates the 14th Amendment of the U.S. Constitution by depriving people of the right to private, intimate sexual decisions without due process of law. The bookstore’s legal challenge was joined by two residents: Melissa Davenport, who says she has multiple sclerosis and uses sexual devices with her husband for sexual intimacy; and Marshall Henry, an artist who says he uses sex toys in his artwork.

In an August 2016 ruling, three judges of the 11th Circuit court wrote that they were “sympathetic” to the bookstore and residents, but were forced to uphold the law due to a 2004 case that set a legal precedent. The judges noted that their decision could be appealed to the full 11th Circuit court, which could overturn that precedent, “and we encourage them to do so.”

The bookstore and the residents made that appeal. On March 14, the full court threw out the 2016 decision and agreed to re-hear the case “en banc,” meaning that most or all of the judges assigned to the court will hear the case. En banc hearings are unusual and typically reserved for major decisions.

On March 19, the City Council meeting agenda was revised to include the killing of the sex-toy ban, as well as an executive session to discuss litigation scheduled unusually at the beginning of the meeting rather than at the end.

On the published agenda, the law’s deletion is listed only an amendment to city code without reference to the subject or the lawsuit. However, the online version also contains the full text of the proposed ordinance change, which says the law will be “amended to modify the obscenity ordinance to remove reference to sexual devices by deleting …[the particular subsection] in its entirety.”

The consent agenda is intended for housekeeping-type items that are not controversial among councilmembers, so it is likely the law’s deletion will be approved. For that not to happen, a majority of councilmembers would have to vote against the entire consent agenda, or a councilmember would have to successfully move to deal with the law item separately.

Besides the constitutional question, the sex-toy lawsuit has been part of a financial dispute as well. In yet another lawsuit, a former insurer for the city has tried to get out of paying to defend some of the adult-business lawsuits. Willard previously said the insurer likely would have to pay the city’s costs in the sex-toy battle, depending in part on the lawsuit’s outcome.

John Ruch

John Ruch is an Atlanta-based journalist. Previously, he was Managing Editor of Reporter Newspapers.