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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.

Ex-Fed (mail) (www):
Cert also to be granted on this question: shouldn't the plural be "dildi", or is that just pretentious?
2.13.2008 11:31am
Anderson (mail):
I am gloating over this one, since Mississipi's supreme court upheld its sex-toy ban on a flat misreading of Carey.

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.
2.13.2008 11:38am
Classics Nerd:
No need to grant cert on Ex-Fed's question, as there shouldn't be a circuit split on that matter. The plural would be "dildi" only if the word had a Latin root. The origin of "dildo" is in fact unknown; according to the OED, the word first appeared in the late 1500s.

(The plural, by the way, can be either "dildos" or "dildoes.")

And now I really, really have to get back to work.
2.13.2008 11:42am
Bill Poser (mail) (www):
Ex-Fed,

"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.
2.13.2008 11:45am
DiverDan (mail):
Just as an aside, I note that the Texas statute at issue included an affirmative defense for distribution of obscene devices for "bona fide medical, psychiatric, legislative, judicial, or law enforcement purposes". Now, just what do you suppose is a "bona fide . . . judicial use" of a dildo? I can think of one use I might suggest for a few judges that I have appeared before, but I'm pretty sure that such use would not be considered "bona fide" by anyone, especially the judge to whom I'd like to suggest it. Similarly, just what are the "bona fide" legislative or law enforcement uses for such devices? [I know, I've conflated "use" and "purpose", but the Supreme Court said in Kelo that the two words were interchangeable.]
2.13.2008 11:50am
p.d.:
So...anyone want to predict possible defections from the traditionally conservative bloc?
2.13.2008 11:53am
J. F. Thomas (mail):
Similarly, just what are the "bona fide" legislative or law enforcement uses for such devices?

It certainly makes you wonder what is going on in those proverbial smoke-filled back rooms at the Texas State legislature.
2.13.2008 11:54am
what about pakistan:
diver dan: bona fide more like boner-fied am i rite here folks and what about them airline peanuts
2.13.2008 11:55am
Ex parte McCardle:
If only they'd been able to consolidate it with "Bong Hits 4 Jesus"--one stop shopping!
2.13.2008 11:55am
Classics Nerd:
If it were from the Greek, it would be dildoi. That would be awesome. Can we get some court to rule that the plural should be dildoi?
2.13.2008 11:59am
Hanah Volokh (mail) (www):
As someone who is moving to Texas in 3 months, I have to say . . . . Wait, I changed my mind, I have no comment.
2.13.2008 12:07pm
asdf:
If the fight over the 2nd Amendment could bring in 67 friend of the court briefs (total, both sides), how many would find the need to say something about dildoes? And what would the linguists say?

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.
2.13.2008 12:16pm
OrinKerr:
My prediction: Cert denied. Think of the headlines.
2.13.2008 12:17pm
A. Zarkov (mail):
This is another sign of a disintegrating nation. This is a really stupid law that should have never been passed in the first place. But it compounds the felony to have the courts involved in such a trivial matter.
2.13.2008 12:20pm
titus32:
If this issue does make its way to the Supreme Court, I wonder if Justice Kennedy would find it in his heart to wax eloquent on the right to dildo-usage, a la Lawrence.
2.13.2008 12:21pm
Millenial Klingon (mail):
Actually, the etymology of the word "dildo" is an ancient tale from Middle Earth. It was the namesake of a heroic little person.

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?!!")
2.13.2008 12:21pm
Cornellian (mail):
Similarly, just what are the "bona fide" legislative or law enforcement uses for such devices?

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.
2.13.2008 12:22pm
Cornellian (mail):
And speaking of Texas, there's a pretty funny video that Molly Ivins made (on YouTube somewhere) about the debate in the Texas legislature (or what passes for debate there) before enacting a law prohibiting "sodomy" even between a husband and wife.

Family values indeed.
2.13.2008 12:24pm
Cornellian (mail):
The law, the court held, violates Lawrence v. Texas right of "adult consensual sexual intimacy in the home."

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?
2.13.2008 12:27pm
Dildo Daggins (mail):
If this issue does make its way to the Supreme Court, I wonder if Justice Kennedy would find it in his heart to wax eloquent on the right to dildo-usage, a la Lawrence.

Don't you mean Souter?
2.13.2008 12:27pm
Cornellian (mail):
Not to mention an interesting commerce clause issue if the statute purports to prohibit people in Texas from purchasing a dildo from an out of state supplier...
2.13.2008 12:28pm
Dildo Daggins (mail):
Not to mention an interesting commerce clause issue if the statute purports to prohibit people in Texas from purchasing a dildo from an out of state supplier...

Yes, the Flaccid Commerce Clause.
2.13.2008 12:30pm
Irregular Commenter (mail):
What would be funny is if this does go to the Supreme Court, and this is the one oral argument at which Justice Thomas has plenty of questions.
2.13.2008 12:33pm
David M. Nieporent (www):
Too bad this isn't a civil forfeiture case. It could be "U.S. vs. 10 Dildos" or something.
2.13.2008 12:33pm
titus32:
Don't you mean Souter?

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."
2.13.2008 12:34pm
liberty (mail) (www):

This is another sign of a disintegrating nation. This is a really stupid law that should have never been passed in the first place. But it compounds the felony to have the courts involved in such a trivial matter.


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 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?


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...
2.13.2008 12:36pm
guy in the veal calf office (mail) (www):
I don't understand why some states have a stick up their…..

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.
2.13.2008 12:38pm
liberty (mail) (www):

What would be funny is if this does go to the Supreme Court, and this is the one oral argument at which Justice Thomas has plenty of questions.



Ha!! Thank you for that.
2.13.2008 12:38pm
BruceM (mail) (www):
It's sort of ironic insofar as any judge who rules against the legality of dildoes has just created a big one.
2.13.2008 12:38pm
Irregular Commenter (mail):
I am not sure that I understand your (legal) distinction between purchase and use, but yes hopefully it could open up drug use questions.

Commercial speech and political speech (First Amendment doctrine). Commerce and mere possession (Raich, Wickard).
2.13.2008 12:40pm
hattio1:
I can't believe we're 20+ comments in and nobody has mentioned the two dildoes who went to the Supreme Court last year.
Am I the only one who graduated law school but left my mind in Jr. High????
2.13.2008 12:41pm
Chris Bell (mail) (www):
Don't you mean Souter?
Just because he's a bachelor doesn't mean....
2.13.2008 12:44pm
Thoughtful (mail):
Hannah Volokh: As someone who is moving to Texas in 3 months, I have to say . . . . Wait, I changed my mind, I have no comment.

And here I thought you were going to say, "...Wait, I changed my mind. I'm not moving to Texas in 3 months..." :-)
2.13.2008 12:56pm
Anderson (mail):
But it compounds the felony to have the courts involved in such a trivial matter.

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.
2.13.2008 12:58pm
Hillbilly Jane (mail):
I wonder if the opinion would cite to international law.
2.13.2008 12:59pm
Thales (mail) (www):
The plural of the word in question is also addressed in this comedy routine:

http://www.youtube.com/watch?v=rcwfdFT1ohE
2.13.2008 1:02pm
Hillbilly Jane (mail):
Apparently, some of the international law on this is quite interesting.
2.13.2008 1:03pm
titus32:
Anderson: yeah, I realized the possibility of a joke, but just wanted to make it clear that my remarks weren't aimed at any justice's private conduct (just their published words). And I got to quote Lawrence.
2.13.2008 1:07pm
Dave N (mail):
If cert. is granted, I wonder how many amici will be filed and whether one of the conspirators will then provide links to all of the ones he agrees with.
2.13.2008 1:11pm
Hillbilly Jane (mail):
It seems the Texas law is similar to the legal regimes of Thailand and India.
2.13.2008 1:21pm
Eugene Volokh (www):
Dave N: I would think that if one of us were an expert on the subject -- in fact, had worked for decades on it, and had written some of the leading works on it -- then he might indeed read the briefs carefully and link to some, many, or all of them. On the other hand, if this is more tangential to our scholarship, we'd be less inclined to do so. That makes sense, no?
2.13.2008 1:33pm
Some dude:
So this would be argued on some sort of substantive due process grounds?
2.13.2008 1:34pm
Dave N (mail):
Professor Volokh,

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.
2.13.2008 1:42pm
Hillbilly Jane (mail):
One reason the Supreme Court might not want to get involved is eventually it'll have to decide a borderline case between contraception and sex toys, the former already being federally protected.
2.13.2008 1:45pm
Platonisto:
Could a ban extend to edible dildoes, otherwise known as cucumbers?
2.13.2008 1:46pm
liberty (mail) (www):

One reason the Supreme Court might not want to get involved is eventually it'll have to decide a borderline case between contraception and sex toys, the former already being federally protected.


And you can add Nonoxinol 9 to anything.
2.13.2008 1:47pm
Curmudgeonly Ex-Clerk (www):
Professors Volokh & Kerr,

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.
2.13.2008 1:49pm
one of many:
Jane,

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.
2.13.2008 1:52pm
UW2L:
Well thank goodness the 11th broke off from the 5th, or we might never have seen this golden chance to hand Scalia an issue he can really get behind. So to speak.

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.
2.13.2008 1:53pm
KevinM:
Dildoes Going to the Supreme Court?
Very likely yes, but there aren't any vacant seats at the moment.
2.13.2008 2:02pm
Ex-Fed (mail) (www):
The dissent is well-reasoned. However, had I been the dissenter, I think I might have avoided using the phrase "friction-producing" in the first sentence.
2.13.2008 2:03pm
Hillbilly Jane (mail):
That Supreme Court of Canada opinion is here.
2.13.2008 2:05pm
Kevin P. (mail):

Hillbilly Jane:
It seems the Texas law is similar to the legal regimes of Thailand and India.


Did you mean Thigh-land?

Actually, the dildoes can be sold as novelty items and they are freely available anywhere in Texas.
2.13.2008 2:10pm
Kevin P. (mail):

Hillbilly Jane:
That Supreme Court of Canada opinion is here.


So dildoes ARE weapons and can thereby fall within the protection of the Second Amendment! Who knew!
2.13.2008 2:12pm
BruceM (mail) (www):
Did Judge Rhesa Hawkins Barksdale, in her dissenting opinion in the 5th Circuit case, end her dissent by capitalizing the word "BROTHERS" ("Therefore, I must respectfully dissent from my BROTHERS' invalidation of the statute on that basis.") to show the majority (which upheld the dildo law) is comprised of two male judges (Judges Reavly and Prado)?

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.
2.13.2008 2:36pm
Anderson (mail):
I think the more immediate question might be whether the Fifth Circuit will rehear this case en banc

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.
2.13.2008 2:36pm
Anderson (mail):
But it seems judge Barksdale is going out of her way to point out that the majority opinion is by two male judges.

Rhesa Barksdale is emphatically male, as in 6-foot-plus, West-Point-grad, in-your-face-at-oral-argument male.
2.13.2008 2:53pm
BruceM (mail) (www):
Rhesa is male? I always thought Rhesa was a woman. Never heard of a guy named Rhesa before. Never had him/her on a panel or otherwise seen judge Barksdale. If i'm wrong, then certainly mea culpa.
2.13.2008 3:00pm
Clayton E. Cramer (mail) (www):
It will be interesting (although not amusing) to watch the liberal justices find a way to constitutionalize the right to dildoes, while rationalizing that "right of the people to keep and bear arms" really doesn't mean what it says.

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.
2.13.2008 3:17pm
Hillbilly Jane (mail):
But, Clayton, you can defend yourself with a giant dildo, as it is an "Arm". The Canadians have recognized that right in English common law (though not in the French tradition).

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.
2.13.2008 3:21pm
Anderson (mail):
Never heard of a guy named Rhesa before.

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.
2.13.2008 3:22pm
Tinhorn (mail):

It's sort of ironic insofar as any judge ...

Insofar. Heh.
2.13.2008 3:25pm
Anderson (mail):
The only people more obsessive than dildo fiends are gun fiends.
2.13.2008 3:27pm
microtherion (mail):
But, Clayton, you can defend yourself with a giant dildo, as it is an "Arm".

After all, the name "dil-do" would imply that this is a martial, not just a marital, aid.
2.13.2008 3:48pm
Randy R. (mail):
Seeing as how J. Scalia is so concerned about the morals of America, and the fact that he is even in favor of regulating masturbation (see his dissent in Lawrence), I would be amused to see another hysterical opinion from him on the dangers of dildos.
2.13.2008 3:55pm
Randy R. (mail):
I am praying that Huckabee takes this case as an example of the culture wars, and warns America of the dangers of sex toys. That should garner him a few more delegates, especially from Texas.
2.13.2008 3:57pm
cjwynes (mail):
I hope they'll at least have the good taste to call them "marital aides", I'd hate to see the word "dildo" enter the US Reports. Leave all THAT fun to the blogosphere.

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.
2.13.2008 4:01pm
Chris Bell (mail) (www):
I predict the 5th Circuit will not rehear the case en banc and that SCOTUS will not take cert. It's an incredibly dumb law and I think people will prefer to drop the issue instead of having an extraordinarily divisive fight about deep constitutional issues. Save that anger for something worth fighting over.

I mean, take Justice Scalia's dissent in Lawrence and make it about dildoes. It just ain't worth it.
2.13.2008 4:07pm
liberty (mail) (www):

Save that anger for something worth fighting over.


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?
2.13.2008 4:34pm
Clayton E. Cramer (mail) (www):

Seeing as how J. Scalia is so concerned about the morals of America, and the fact that he is even in favor of regulating masturbation (see his dissent in Lawrence), I would be amused to see another hysterical opinion from him on the dangers of dildos.
I just read Scalia's dissent. He didn't say that was in favor of regulating masturbation. He pointed to a long list of laws that would be likely invalidated by the reasoning of Lawrence, including "incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity". I am not aware of any state laws that prohibit masturbation, except in public places. I would assume that Scalia's concern was that public masturbation laws would be at risk--and of course, the homosexual advocates did exactly that in Virginia--argued that a law against sex in a public restroom could not survive post-Lawrence. The courts didn't quite buy that argument--but maybe next year.
2.13.2008 4:35pm
Clayton E. Cramer (mail) (www):

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?
The legislatures generally prohibit sex in public view. But they are just being puritanical and narrow-minded. If you get your way, there won't be any laws against having sex with sheep in the middle of Broadway. I mean, who does it hurt? Lawrence opened the barn door, so the speak, by arguing that sexual morality was not a legitimate basis for the passage of laws. So why are other categories of morality legitimate? Why is it okay to ban discrimination in employment? Why is it okay to prohibit individuals from having guns in their homes? Because the unelected elites think homosexuality is cool, but guns are icky.
2.13.2008 4:39pm
Anderson (mail):
Seeing as how J. Scalia is so concerned about the morals of America

Scalia apparently thinks you can use a dildo only if you're torturing a suspected terrorist with it.
2.13.2008 4:59pm
Chris 24601 (mail):
"Never heard of a guy named Rhesa before." See Luke 3:27.
2.13.2008 5:04pm
Dave Hardy (mail) (www):
" Now, just what do you suppose is a "bona fide . . . judicial use" of a dildo?"

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.
2.13.2008 5:07pm
Dave Hardy (mail) (www):
I really can't see the rational basis, if Texas allows sale of this

http://www.muttonbone.com/

but not dildos.
2.13.2008 5:10pm
liberty (mail) (www):

Lawrence opened the barn door, so the speak, by arguing that sexual morality was not a legitimate basis for the passage of laws. So why are other categories of morality legitimate? Why is it okay to ban discrimination in employment? Why is it okay to prohibit individuals from having guns in their homes? Because the unelected elites think homosexuality is cool, but guns are icky.


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.
2.13.2008 5:15pm
liberty (mail) (www):
(3) should say "private home" of course.
2.13.2008 5:17pm
Clayton E. Cramer (mail) (www):

(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).
I can agree with this, but that's because I think that there are some things that aren't good for kids to see. Liberals disagree.

(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.
2.13.2008 5:19pm
Dave Hardy (mail) (www):
I get dibs on the international law brief.

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.
2.13.2008 5:28pm
Clayton E. Cramer (mail) (www):

First case in which the opinion was joined by eight concurrences in the result.
Not likely. Scalia and Thomas, at least, will certainly oppose it for the reason that they opposed Lawrence--there needs to be a clear proof that a state legislative enactment violates a protected right.
2.13.2008 5:36pm
David Chesler (mail) (www):
Thanks for the pointer to the Scalia dissent, Clayton. Around here the cops have gotten bored and are sending vice squads after the Craigslist prostitutes and johns who meet privately in hotel rooms, and I wondered if there was an argument to be made that way. (The stronger argument is why are they wasting time and money for something that's not bothering anyone when there are violence and thefts going on. My local PD's Lt in charge of Vice made an argument that seemed to come down to "It could lead to dancing.")

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.)
2.13.2008 6:27pm
Anderson (mail):
intended to be used for self-abuse

On my reading, that would include Fox News.
2.13.2008 6:37pm
Clayton E. Cramer (mail) (www):

Around here the cops have gotten bored and are sending vice squads after the Craigslist prostitutes and johns who meet privately in hotel rooms, and I wondered if there was an argument to be made that way. (The stronger argument is why are they wasting time and money for something that's not bothering anyone when there are violence and thefts going on. My local PD's Lt in charge of Vice made an argument that seemed to come down to "It could lead to dancing.")
There are legitimate public health arguments to pursue prostitution--although I would agree that the argument is even stronger to regulate it in the manner of Nevada. But either strategy is still based on a compelling governmental interest: stopping the spread of STDs. (Of course, that's also an argument for laws discouraging promiscuity.) I agree that prostitution indoors should be about the bottom of the priority list, although above parking meter enforcement.

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.
2.13.2008 8:03pm
Sigh.:
I wish they would just ban the big ones.
2.13.2008 9:06pm
Homer Jay Simpson:
WWSD? What would Scalia do? Dildos to the left of him. Dildos to the right of him. Dildos in front of him. Hmm.
2.13.2008 9:36pm
Alice in Wonderland:
Were the lawyers allowed to bring in a box of demonstrative evidence? Imagine a judge asking to see the . . . evidence. He would closely examine it. Grasping it with both hands.
2.13.2008 9:41pm
Eugene Volokh (www):
Dave N: Makes sense, and sorry for not getting the joke!
2.13.2008 9:47pm
eck:
Orin writes, My prediction: Cert denied.

Does this fall into the category of, um, hard cases making bad law?
2.13.2008 11:01pm
David Chesler (mail) (www):
In some cases, there may be some pursuit of prostitution because there are underage prostitutes working out there.

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.
2.13.2008 11:49pm
Clayton E. Cramer (mail) (www):

Dave N: Makes sense, and sorry for not getting the joke!
Abrahams, Zucker, and Zucker's first movie was the incredibly sophomoric Kentucky Fried Movie, in which an attorney is waving around a dildo in front of a witness while discussing the California Penile Code.
2.14.2008 12:49am
Clayton E. Cramer (mail) (www):


In some cases, there may be some pursuit of prostitution because there are underage prostitutes working out there.


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.)
How do you know that these girls are independent? I find it interesting that some of the craigslist.com sex categories make a point of asking you to bring to their attention exploitation of minors. I rather doubt that this just randomly occurred to craigslist.

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.
2.14.2008 12:53am
neurodoc:
I note that the Texas statute at issue included an affirmative defense for distribution of obscene devices for "bona fide medical, psychiatric, legislative, judicial, or law enforcement purposes
That would be an affirmative defense for the distributor/seller, not the purchaser/end-user (pun intended), right? How would counsel prove up such a defense - by showing that the product was advertised for such purposes?, by limiting sales to those who would swear they would not put it to any improper use?, by putting on expert testimony to establish that there are those bona fide purposes for the product? If it must be an affirmative defense, then the distributor/seller of Doc Johnson marital aids would not be entitled to the presumption that they were for bona fide medical purposes but would have to prove it? In a criminal matter, how convincing must an affirmative defense be to defeat the prosecutor's case?
2.14.2008 4:38am
Chip Gill (mail):
I find this entire discussion to be utterly dildoic.
2.14.2008 10:23am
geekWithA.45 (mail) (www):
Since we're playing word derivative games, as a professional technologist, would it be off topic for me to propose that "dildonics" be the word to use for describing the technology of dildoes? I understand that materials science and engineering has advanced the state of the dildonic art to a significant degree in recent years.
2.14.2008 10:33am
Wondering Willy:
"Mom, Kitty's being a dildo!"

"Then I know a certain Kitty-Kitty that's sleeping with Mommy tonight"
2.14.2008 10:58am
David Chesler (mail) (www):
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.

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.
2.14.2008 11:03am
Steve Z (mail):
What if the Supreme Court doesn't get this case until next year, and President Hillary Clinton has named her husband to the Supreme Court. Is an appropriately-placed cigar a dildo? Maybe that depends on what the definition of "is" is.
2.14.2008 12:26pm
Randy R. (mail):
The dissent seems to say that he would uphold the ban of selling dildos.

I guess the way around this is to make your own. Maybe if I sold kits? Would that be okay even under the dissent?
2.14.2008 3:22pm
Pender:
Clayton Cramer wrote:

All laws are morality issues. They are an attempt to impose one morality on others. Otherwise they are suggestions, or requests—not laws.

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.
2.14.2008 5:50pm
Randy R. (mail):
Traffic law says that I must drive on the right hand side of the road. Is that a morality issue? Is Britain immoral because they drive on the left?

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?
2.14.2008 10:56pm
Wondering Willy:
Randy R. and Pender,

I suggest you charitably interpret Mr. Cramer's comments. Your counterexamples verge on the stupid.
2.14.2008 11:09pm
Can't find a good name:
Geekwitha45: I would say that "dildonics" already is the term used for the technology of dildos. At least, the term is already being used with combining forms. See "Teledildonics" at Wikipedia.
2.15.2008 1:34am
Steely Dan:
Outlaw dildos, and only outlaws will have dildos.
2.15.2008 2:48am
John Herbison (mail):

"[T]ake Justice Scalia's dissent in Lawrence and make it about dildoes.


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.
2.15.2008 3:37am
bookmoth (mail) (www):
Geek -

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
2.15.2008 11:41am