WILSON, Circuit Judge:
In this appeal, we review the district court's dismissal of two complaints that challenge the constitutionality of a municipal ordinance prohibiting the sale, rental, or lease of obscene material. After the benefit of briefing and oral argument, we conclude that the Fourteenth Amendment Due Process Clause claim is foreclosed by our prior holding in Williams v. Attorney General (Williams IV), 378 F.3d 1232 (11th Cir. 2004), and the district court properly entered judgment on the pleadings for the City of Sandy Springs as to Intervenor-Appellant Henry's First Amendment claims that the law burdens his artistic expression. The district court committed no reversible error as to any other claim properly raised on appeal. Accordingly, we affirm.
On April 21, 2009, the City of Sandy Springs, Georgia (the City) enacted into law several provisions that, inter alia, prohibit the commercial distribution of sexual devices within the City. Multiple adult entertainment establishments and other businesses affected by the provisions sued the City in response. In this severed portion of that litigation, Plaintiffs-Appellants Flanigan's Enterprises, Inc. of Georgia (Flanigan's) and Fantastic Visuals, LLC (Inserection) (collectively, the Plaintiffs), as well as Intervenors-Appellants Melissa Davenport and Marshall Henry (collectively, the Intervenors), brought, in relevant part, a Fourteenth Amendment Due Process Clause challenge to Ordinance 2009-04-24 (the Ordinance), codified at section 38-120 of the City's Code of Ordinances.
Inserection is an adult bookstore in Sandy Springs that sells sexually explicit materials and items, including sexual devices. Davenport suffers from multiple sclerosis and uses sexual devices with her husband to facilitate intimacy. She seeks to purchase sexual devices in Sandy Springs for her own use, as well as to sell sexual devices to others in Sandy Springs who suffer from the same or a similar condition. Henry is an artist who uses sexual devices in his artwork. He seeks to purchase sexual devices in Sandy Springs for his own private, sexual activity and for use in his artwork, as well as to sell his artwork in Sandy Springs.
After the Intervenors entered the litigation and filed their complaint, the City filed an answer and moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. The district court granted the City's motion and entered an order upholding the Ordinance against each challenge. The Plaintiffs and the Intervenors together filed a timely notice of appeal, arguing that the district court erred in entering judgment in favor of the City.
We review de novo the district court's entry of judgment on the pleadings pursuant to Rule 12(c). Horsley v. Rivera, 292 F.3d 695, 700 (11th Cir. 2002). "Judgment on the pleadings under Rule 12(c) is appropriate when there are no material facts in dispute, and judgment may be rendered by considering the substance of the pleadings and any judicially noticed facts." Id. In reviewing whether judgment was appropriately entered, "we accept the facts in the complaint as true and we view them in the light most favorable to the nonmoving party." Hawthorne v. Mac Adjustment, Inc., 140 F.3d 1367, 1370 (11th Cir. 1998). A complaint may only be dismissed under Rule 12(c) if "it is clear that the plaintiff would not be entitled to relief under any set of facts that could be proved consistent with the allegations." See Horsley, 292 F.3d at 700.
The Intervenors and Inserection (collectively, the Appellants) argue that the Ordinance is unconstitutional because it violates the Due Process Clause of the Fourteenth Amendment.
In Williams IV, the American Civil Liberties Union (ACLU) brought a constitutional challenge against an Alabama statute that prohibited the sale of sexual devices. See 378 F.3d at 1233. The ACLU claimed that the law violated a fundamental right to sexual privacy, which includes a right to use the devices in the privacy of one's home. See id. at 1235. We concluded that the Supreme Court's then-recent decision in Lawrence v. Texas
The Appellants in this case challenge a law similar to the one at issue in Williams IV and present us with, effectively, the same arguments against its enforcement. Under this circuit's prior panel precedent rule, "a prior panel's holding is binding on all subsequent panels unless and until it is overruled or undermined to the point of abrogation by the Supreme Court or by this court sitting en banc." In re Lambrix, 776 F.3d 789, 794 (11th Cir. 2015) (per curiam) (internal quotation marks omitted). The Appellants urge this panel to overrule Williams IV in light of the Supreme Court's subsequent decisions in United States v. Windsor
To the extent Lawrence was ambiguous, the Appellants explain, Windsor clarified that Lawrence announced a new constitutional right and that that right
Additionally, the Appellants contend, Williams IV cannot stand in light of the Supreme Court's new instruction on how to define and analyze privacy-based rights. In Obergefell, the Court explained that a refined Glucksberg analysis applies to define privacy-based rights because Glucksberg's requirement that rights "be defined in a most circumscribed manner" was appropriate for the context in which that test arose but was "inconsistent with the approach th[e] Court ha[d] used in discussing
In sum, the Appellants would have us conclude today that Windsor's clarification of Lawrence and Obergefell's adjustment of Glucksberg effected substantive changes in constitutional law that undermine Williams IV to the point of abrogation, such that we are free to decide this appeal without Williams IV as binding precedent.
Although we are persuaded that Windsor and Obergefell cast serious doubt on Williams IV, we are unable to say that they undermine our prior decision to the point of abrogation. See In re Lambrix, 776 F.3d at 794. We did not review Williams IV as an en banc court at the time it was decided, see 122 Fed.Appx. 988 (11th Cir. 2004) (mem.); the Supreme Court denied the petition for writ of certiorari, see 543 U.S. 1152, 125 S.Ct. 1335, 161 L.Ed.2d 115 (2005) (mem.); and the Court has not expressly held in a subsequent decision that there is a right to engage in acts of private, consensual sexual intimacy, within which would fall a right to buy, sell, and use sexual devices, see United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008) ("While an intervening decision of the Supreme Court can overrule the decision of a prior panel of our court, the Supreme Court decision must be clearly on point." (internal quotation marks omitted)).
Therefore, unless and until our holding in Williams IV is overruled en banc, or by the Supreme Court, we are bound to follow it. Although we are sympathetic to the Appellants' Fourteenth Amendment Due Process claim, we are constrained by our prior precedent in Williams IV, and we are obligated to follow it "even though convinced it is wrong." See United States v. Steele, 147 F.3d 1316, 1318 (11th Cir. 1998).
For the reasons stated, we affirm the decision of the district court.
The Ordinance reads as follows:
Sandy Springs, Ga., Code of Ordinances ch. 38, § 38-120.
Although Flanigan's participated in the Notice of Appeal to this court, it neither provided briefing of its own nor indicated that Inserection brings any claim on its behalf. "When an appellant fails to challenge properly on appeal one of the grounds on which the district court based its judgment, he is deemed to have abandoned any challenge of that ground, and it follows that the judgment is due to be affirmed." Sapuppo v. Allstate Floridian Ins., 739 F.3d 678, 680 (11th Cir. 2014). In failing to provide any briefing whatsoever, Flanigan's abandoned its appeal.
In addition, Inserection did not brief its state constitution claim on appeal, and the Intervenors did not brief either their overbreadth or state constitution claims. Therefore, those claims are abandoned on appeal. See id.