Dildoes Going to the Supreme Court?
The Texas ban on dildoes -- yes, it expressly mentions "dildo" -- has just been struck down by the U.S. Court of Appeals for the Fifth Circuit. The law, the court held, violates Lawrence v. Texas right of "adult consensual sexual intimacy in the home."
On this, the Fifth Circuit disagrees with the Eleventh Circuit, which upheld a similar Alabama law last year. Sounds like there's a solid split, so there's a decent chance that the U.S. Supreme Court will step in to resolve this (though there's of course no guarantee).
Thanks to the invaluable How Appealing for the pointer.
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I am now wondering whether the Miss. statute will fall -- intervenor PHE, Inc. in the Texas suit was a plaintiff in the Miss. court, so I'd imagine there will be something happening on this.
(The plural, by the way, can be either "dildos" or "dildoes.")
And now I really, really have to get back to work.
"dildo" is not a loan from Italian, Latin, or Greek, so it does not have a classicizing plural "dildi". The classical term is the Greek olisbos. The etymology of "dildo" is unknown.
It certainly makes you wonder what is going on in those proverbial smoke-filled back rooms at the Texas State legislature.
For THIS there were mothers who "scrubbed floors and took in laundry" to put their sons/daughters through good law schools?
Thanks for the laugh, Eugene.
Do you have a constitutional right to purchase sex toys for masturbation purposes? That isn't really associational or social. It's anti-social and ____ing yourself does not require intimate interaction with others. I understand that these devices have medical purposes for anorgasmic women, but if the rationale underlying a right to purchase of sex toys (not possession or use) is, well, pleasure, why doesn't that open up the question of drug use in the home? It would seem to merit the same treatment on a Millian analysis.
After all, what is the true difference between a crack pipe and a Hitachi Magic Wand?
I would love to see the amici line-up in this case. ("An amicus from feministing.com?!!")
Probably there to ensure a cop isn't breaking the law when he goes undercover to purchase the incriminating evidence from the local "toy" shop. Ditto for the court staff who receive it as a trial exhibit.
Family values indeed.
You'd think there'd be a 5th Amendment property right issue here, depending on what the statute says.
Does it purport to criminalize only the purchase of a dildo, or the possession of it as well?
And does the Texas legislature have anything productive to do?
Don't you mean Souter?
Yes, the Flaccid Commerce Clause.
No, I was referring to Kennedy's opinion in Lawrence, which leads off in part with these verses: "Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions."
What if the courts say people can't dress as the other gender for similar purpose? Its not just a stupid law, it is a violation of liberty. Sure, if it were ignored / unenforced it would not have to be so, but rather than ignore we should overturn laws which violate fundamental rights, like liberty.
I am not sure that I understand your (legal) distinction between purchase and use, but yes hopefully it could open up drug use questions.
Just as there is a slippery slope in loss of freedoms, so should there be a climb from the agreed absurdities (not being allowed to dress funny or touch yourself in a socially conservative state) to the more popular but hardly less violative laws (like drug laws).
Anyway, it makes you wonder why who wanted to pass this law and why he was so offended. I imagine a frustrated wife...
That is to say, why would legislatures ram through this kind of legis…
I mean, shouldn’t they focus on stimulating the econ…
Oh, never mind.
Ha!! Thank you for that.
Commercial speech and political speech (First Amendment doctrine). Commerce and mere possession (Raich, Wickard).
Am I the only one who graduated law school but left my mind in Jr. High????
And here I thought you were going to say, "...Wait, I changed my mind. I'm not moving to Texas in 3 months..." :-)
Why do you think it's trivial for the state to interfere in the particular sexual intimacies engaged in by its citizens?
Titus: No, I was referring to Kennedy's opinion in Lawrence
Titus, perhaps to your credit, I think that Mr. Daggins's joke about Souter sailed right past you. He, um, lives with his mom, or something like that.
http://www.youtube.com/watch?v=rcwfdFT1ohE
I was making a rather feeble attempt at humor. Frankly, I have enjoyed the many posts and links provided by Professor Kopel on D.C. v. Heller--as well as the thoughtful discussion on all sides.
I mentally juxtuposed this rather minor case with Heller and the thought of a multitude of amicus briefs on it brought a smile to my face. I was not meaning it as a criticism of Professor Kopel's scholarship or his yeoman's work in facilitating discussion on Heller within the VC.
And you can add Nonoxinol 9 to anything.
Regarding your cert.-related speculation, I think the more immediate question might be whether the Fifth Circuit will rehear this case en banc, given the dissent, contrary precedent from another circuit, and the possible importance of the standard-of-review question. Given the Fifth Circuit's current roster, it's not hard to identify different panel combinations that probably would not have ruled as the majority did.
thanks, this makes it a case not just similar to 2nd amendmeent rights, but the possesion of a dildo can be justified under the 2nd amendment right to bear arms. I wonder of there is a similar US precedent, or a precedent ruling a non-giant dildo is a weapon used in a sexual assault. Throws open a whole new line of argumentation.
Very timely, given that tomorrow is V-Day (when all those feministing.com readers get all het up about, I don't know, their autonomy privacy or something).
One hopes that, if the Court accepts the case, it doesn't decide to use the rational basis standard of review, or plaintiffs are doomed.
Very likely yes, but there aren't any vacant seats at the moment.
Did you mean Thigh-land?
Actually, the dildoes can be sold as novelty items and they are freely available anywhere in Texas.
So dildoes ARE weapons and can thereby fall within the protection of the Second Amendment! Who knew!
Is this a subtle snarky snipe, saying men have more of an interest in sex toys than women? I'd imagine a lot of women would disagree with that. But it seems judge Barksdale is going out of her way to point out that the majority opinion is by two male judges.
Bingo. Barksdale is certainly on the paleolithic side, but the majority of the 5th Cir. bench is conservative.
OTOH, it's not so hot-button as a Pledge or school-prayer case, and the majority's opinion is not some sort of 9th-Cir. hand-waving mishmash. Indeed, I think they're right on the merits, which I suppose biases me.
But we should certainly expect a motion to take the case en banc.
Rhesa Barksdale is emphatically male, as in 6-foot-plus, West-Point-grad, in-your-face-at-oral-argument male.
If they are going to strike down a state law on this, they better come up with something stronger than Lawrence--a decision based on false history. Whatever argument they use, I find the notion that the right to sex toys is more important than the right to armed self-defense pretty absurd.
That should be persuasive to Souter (common-law lover) and Breyer (look to foreign courts).
The right to bear arms and the right to giant dildoes are one in the same.
I think some of his demeanor may be of a defensive nature. Presumably it's a family name. The Barksdales harken back to General Barksdale who, if memory serves, fell in the peach orchard at Gettysburg.
Here's the judicial bio.
Insofar. Heh.
After all, the name "dil-do" would imply that this is a martial, not just a marital, aid.
In order to determine what level of scrutiny to apply, will the Court have to determine how deeply rooted the dildo is in our nation's history and traditions? That isn't even taking into account that perhaps some dildos root more deeply than others.
I mean, take Justice Scalia's dissent in Lawrence and make it about dildoes. It just ain't worth it.
Just because you don't want to talk about because it embarrasses you doesn't mean it isn't worth fighting over. Would you like the courts to tell you when and how you may have sex?
Scalia apparently thinks you can use a dildo only if you're torturing a suspected terrorist with it.
http://www.theregister.co.uk/2006/06/29/pneumatic_judge/
The British do have a way with headlines: "Penis pump judge faces stiff sentence"
Back in my gov't days we all had copies of a Federal Register publication from 1979 or so-- a set of proposed federal safety standards for personal vibrators. The dangers listed included friction burns and electrocution if 110 volt current powered them. The author must have seen that Woody Allen movie. It never went to final rule.
http://www.muttonbone.com/
but not dildos.
You are conflating several different things.
(1) Indecent exposure etc: you are harming others if you do things in public that society considers harmful for others to view, particularly if you may expose children to your acts. But this could include ritual acts of violence against yourself or other non-sexual acts that may be objectionable for others to see. It can be regulated because it is in public space rather than your private home - this is how it can possibly harm others.
(2) Sexuality with another consenting adult in private, again, should not be banned as it cannot hurt others. In public it goes back to (1).
(3) In your public home you should be able to do whatever you want which only involves yourself and no others and cannot cause harm to others for this reason.
(4) Having a gun in your home does no harm to others and is in fact protected specifically by the constitution. This right should certainly not be infringed.
(5) Discrimination in employment is an entirely different issue - however, I am against it. Not sure how it relates except that you seem to imagine it is a morality issue.
All laws are morality issues. They are an attempt to impose one morality on others. Otherwise they are suggestions, or requests—not laws.
This case could produce many "firsts":
First 9-0 vote to grant cert.
First case in a century to be granted a full days' argument.
First argument to be broadcast on YouTube.
First conference in which Capitol Police had to break up fist fights over who would write the majority opinion.
First case in which the opinion was joined by eight concurrences in the result.
I think the very first entry I read on the blawg was about dildoes, and it had a footnote to the penal code.
Massachusetts got close to testing its "no dildo" law in the Paddleboro case. MGL C 272 s 21 provides punishment for "whoever sells, lends, gives away, exhibits, or offers to sell, lend or give away an instrument or other article intended to be used for self-abuse" (also contraceptives and abortificants.)
On my reading, that would include Fox News.
In some cases, there may be some pursuit of prostitution because there are underage prostitutes working out there. You may have seen the coverage of the arrests a few weeks ago in which 15 year olds were raping and doping up 12 and 13 year girls, then pimping them out. My daughter is working in a mental hospital at the moment, and she is working with 15 year olds whose parents were pimping them out to buy meth.
Does this fall into the category of, um, hard cases making bad law?
Then deal with underage prostitutes, with unsafe sex, etc. It's not the money that makes it unsafe or exploitive. Much more than the streetwalkers, the Craigslist girls tend to be independent, or working through an agency. (Agency is not a euphemism for pimp.)
The local vice squad made many of the same points, but there was no indication that the women being arrested had any connection to drugs, or diseases, or terrorism. At best we've got the same type of justifications as a sobriety checkpoint because if they run warrant checks they might find someone with an outstanding warrant.
News coverage a while back of Atlanta's burgeoning prostitution problem indicated that it was becoming a center for child prostitution, with johns flying in from across the U.S. to rent girls as young as 10 and 11. And none of that activity takes places through Craigslist? I'm impressed.
"Then I know a certain Kitty-Kitty that's sleeping with Mommy tonight"
In the locally publicized cases, the prostitutes arrested were not minors; the johns in the sting weren't answering an ad for sex with a minor. The press releases from the vice squads might have implied otherwise, but the evidence from the women and men charged doesn't show anything but consenting adults.
I guess the way around this is to make your own. Maybe if I sold kits? Would that be okay even under the dissent?
A common canard. There is a well-understood distinction between morals laws and public good laws, the latter being those that are pareto (or at least Kaldor-Hicks) efficient, and the former being those whose repeal would be pareto superior. It doesn't hurt you if your neighbor uses a dildo in the privacy of her own home, or has gay sex, or smokes pot recreationally, so banning that behavior hurts her but helps no one. It is a pareto-inferior ban that exists solely in response to your vague and irrational aversion to certain expressions of her autonomy. Contrast this to public good laws, such as tax evasion laws, which are not a morals law in this sense, since the aggregate harm to members of society (through deprivation of property) is less than the aggregate benefit (of a funded government).
I guess for a complete lexicon, you'd also need to include rent-seeking laws — ones that are Kaldor-Hicks inefficient but whose repeal would not be pareto superior — which help you but hurt someone else more. Agricultural subsidies are probably the best example here.
Anyway, my point is that your argument is just one of terminology. If you define "morality" to be any preference of one state of the universe over another, then of course all laws are laws of morality. But there is an alternative: the objective, useful economic definition I outlined above, which is what people mean when they refer to morality laws or morals laws.
Taxes are due on April 15. So I guess some legislators think that April 15 is more moral than April 20, correct?
I didn't know that contract law was about morals. I thought it was just about everyone having a level playing field so that you know what is agreed to, and what will be upheld in a court of law. Also business runs more efficiently when laws are established and everyone follows them. Is efficiency a moral issue?
I suggest you charitably interpret Mr. Cramer's comments. Your counterexamples verge on the stupid.
I have on several occasions served as local counsel for the fine adult entertainment lawyers who won the Fifth Circuit case. You might be surprised at how accurate that summary is.
Scalia's prediction about the import of the majority's reasoning in Lawrence is spot on.
You're too late. The word is already in use. But you guessed the definition exactly right.
More interesting, though, is the growing field of teledildonics. Check wikipedia if you're interested. Basically, the field develops sex tools that can be operated at a distance, generally through the Internet. (Can't see the value? Imagine being on a business trip and being able to have sex with the wife, in a weird liveaction VR environment).
bookmoth