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Fifth Circuit Strikes Down Texas Sex Toy Ban:

The US Court of Appeals for the Fifth Circuit recently struck down Texas' law banning the sale, lending, or giving away of sex toys. I think that the court was right to conclude that the sex toy ban is unconstitutional under the Supreme Court's decisions in Lawrence v. Texas (which invalidated laws banning both homosexual and heterosexual sodomy), and Griswold v. Connecticut (striking down bans on the sale of contraceptives).

There is an obvious distinction between Lawrence and the sex toys case in so far as anti-sodomy laws are often motivated by hostility to gays; anti-sex toy laws aren't backed by a comparable invidious hostility to a particular social group. However, as the Fifth Circuit opinion notes (pg. 8), the Lawrence decision was deliberately written to avoid basing its reasoning on the anti-homosexual motives behind anti-sodomy laws. Instead, "the [Lawrence] Court explicitly rested its holding on substantive due process, not equal protection. ... [T]he Court concluded that the sodomy law violated the substantive due process right to engage in consensual intimate conduct in the home free from government intrusion."

The Fifth Circuit majority also adds some additional reasons why this case falls under the Lawrence-Griswold paradigm. As it points out, all three cases involve state intrusion on intimate sexual conduct primarily on the grounds of enforcing public "morality." Judge Barksdale in his dissent does a solid job of presenting the opposing view; but I am not convinced. To the majority's arguments, I would only add that the "public health" rationale advanced by the state in Lawrence was actually stronger than that put forward here. Anal sex creates considerably greater risk of STD transmission than does the use of sex toys.

This case creates a circuit split over the issue, since the 11th Circuit upheld Alabama's sex toy ban in Williams v. Attorney General of Alabama, 378 F.3d 1232 (11th Cir. 2004). It will be interesting to see if the Supreme Court takes the case in order to resolve the split.In the meantime, the Fifth Circuit has struck down two of the last four remaining sex toy bans in the country (Texas and Mississippi, both of which are within the Circuit's jurisdiction). Only Alabama and (I am ashamed to say) my own state of Virginia continue to engage in this particularly benighted form of "morals" regulation.

CONFLICT OF INTEREST WATCH: I clerked on the Fifth Circuit back in 2001-2002. However, this case arose long after I left, and my judge was not on the panel.

Dave G:
While I certainly agree with this decision, and hope to see freedom of adult sexual expression upheld in this way by the Supreme Court, my initial reaction to the first sentence of this post was "lending sex toys!?!?! ewwwwww!!!!!!!"
2.17.2008 9:40pm
Dilan Esper (mail) (www):
Virginia has a sex toy ban? Maybe they need to take the last 2 letters off the name of the state.
2.17.2008 9:44pm
Thinker:
Let's ask the more serious question of the Texas Legislature:

DON'T YOU HAVE ANYTHING ELSE TO DO? I guess things are going so perfectly in Texas that the entire state government has to worry about strap-ons and vibrators.

My goodness - they need to grow up and get a job.

- Thinker
2.17.2008 9:58pm
Vinnie (mail):
anti-sex toy laws aren't backed by a comparable invidious hostility to a particular social group.


So what?? You have to be specifically kinky for protection? Perverts in general don't qualify?
2.17.2008 10:04pm
Dave G:
Thinker,

The Texas legislature meets for something like six weeks every two years, to hit the bars and restaurants in Austin, pass a ridiculously low budget, collect a few lobbyist contributions, and then fly home. They actually all have real jobs, but that doesn't seem to help much. If they bothered to pass an anti-strap-on bill, most likely it means that most of them couldn't bother to show up sober that morning, and some baptist moron from the pine barrens was able to push it through before before happy hour. It's a deep mistake to assume that Texas state politics means anything at all.
2.17.2008 10:09pm
kidblue:
Here is an entertaining video about the Texas Law, with some great commentary from Molly Ivins.

http://tinyurl.com/2h284q
2.17.2008 10:22pm
Steve2:

Only Alabama and (I am ashamed to say) my own state of Virginia continue to engage in this particularly benighted form of "morals" regulation.


Is there any other form of "morals" regulation? I mean, there's pernicious, and there's based on a flat-out immoral concept of what constitutes morals, but neither of those strikes me as exclusive of "benighted".
2.17.2008 11:11pm
A. Zarkov (mail):
Of course the Texas law is stupid, but unconstitutional? Suppose “private intimate contact” includes using cocaine, marijuana, or some other prohibited substance to enhance the sexual experience. Do Lawrence and Griswold now trump laws against using banned substances? You could argue that sex toys are different because they are not harmful in the way dangerous drugs are, although without getting too graphic that’s not true either.
2.17.2008 11:27pm
TruePath (mail) (www):
How can it be that we have a substantive due process right to engage in intimate conduct of our choice inside our homes but we don't have the right to determine the chemicals inside our own brains. I mean to the extent that there is an argument that there is a fundamental autonomy in being able to engage in the sex acts of your choice in private how is there not a fundamental autonomy to be able to choose the nature of your consciousness?

I mean if the answer relies on some sort of social/cultural acceptance of sexual freedoms vs. the cultural attitude to the ingestion of chemicals then it is self-defeating. I mean after all the very existence of this sort of law is compelling evidence that certain kinds of sexual practices aren't viewed by society as within the bounds of what should be protected. Moreover, it is certainly true that society in general recognizes a strong autonomy interest in being able to determine what medications you do and don't take (society can't tell me I have to take medication for schizophrenia unless I'm a threat to myself or others). It would seem that exactly the same argument applies to illicit narcotics that society frowns upon as it does to sex toys they frown upon.

Most troublingly I fail to see how this sort of autonomy interest can reach out and protect the sale and exchange of these devices outside of the bedroom. I mean how is it that the line is drawn between what is protected by virtue of it being used in the bedroom and what isn't?

I mean should the court strike down the laws outlawing poppers (the good ones not the ones that are still legal) since these drugs are principally used by people (gay men) during sex? What about the fact that some people like to use meth during sex or weed?

Now you might like to say that it's only the laws that are just pretextual attempts to regulate what happens during private intimate association that should be struck down on these grounds but that won't fly either. I mean presumably the texas legislature would say (believably) that they are against all uses of these sort of sex toys whether in private intimate interactions or in public displays, strip clubs, bachelor parties and gag gifts. Yet the same could be said about the ban on marijuana. The government aims to stop all uses of marijuana whether used for sexual pleasure in the bedroom or elsewhere.

Frankly this whole doctrine seems fairly incoherent to me but maybe I'm just missing something.
2.17.2008 11:32pm
Steve2:

I mean presumably the texas legislature would say (believably) that they are against all uses of these sort of sex toys whether in private intimate interactions or in public displays, strip clubs, bachelor parties and gag gifts.


I'd say "public displays" is the only item on that list where the Texas legislature might have legitimate authority for their (probably wrong-headed) opposition to matter.
2.17.2008 11:43pm
Clayton E. Cramer (mail) (www):

Of course the Texas law is stupid, but unconstitutional?
Unfortunately, it is rather difficult to persuade some people that there's a difference between "stupid law" and "unconstitutional." The U.S. Constitution was not, and is not, a libertarian document. At best, it limited federal power in most areas (which the Court has generally ignored since the 1930s), limited state power in a few areas (see Art. I, sec. 10), and pre-empted state power in a few others (see Art. I, sec. 8). But it otherwise left nearly all power to the states, unless the state constitutions protected individual rights.

Significantly, states engaged in all sorts of regulation of sexual morality for many decades after ratification of the Bill of Rights: laws banning adultery, sodomy, premarital sex, prostitution, and obscenity. And oddly enough, I can't seem to find any examples of courts striking down those laws for violating this libertarian Constitution. This is rather like the academics who are convinced that the Second Amendment couldn't possibly protect an individual right, and then spend time trying to twist the historical evidence to suit the public policy conclusion that they want.

Starting with the 14th Amendment, bits and pieces of the first eight amendments have been slowly applied to the states. These at least have some historical basis--although not with the bizarre selective incorporation doctrine that has actually been used.

Sometimes, rights have been plucked out of the behinds of some federal judges that can't be found in either the text, or the historical record of original intent (such as the right to contraceptives). In the case of Griswold, the idiots in charge concluded that there was a Ninth Amendment right there against the states--even though Madison was very clear that this limited only the federal government, and proponents of the 14th Amendment, such as Rep. John Bingham, were also very clear that the 14th Amendment's privileges and immunities clause only imposed the first eight amendments on the states.

No matter. It doesn't matter what the Constitution says, or what everyone understood it to mean in 1789, or in 1868. This attempt to reimagine the Constitution as being a libertarian manifesto is historically inaccurate. Professor Somin's enthusiasm for this approach is profoundly disappointing.
2.17.2008 11:45pm
TruePath (mail) (www):
Also any sort of harmfullness question or legitamate government interest test seems unlikely to work in the case of marijuana. I mean all objects have some ability to cause harm. I'm sure there is some number of documented harms from sex toys every year. Now likely there are even more harms from banning sex toys and letting people make their own but once the court gets into this sort of analysis it would have to make it in the case of marijuanna too (especially if people are smoking it for intimate purposes...and I know plenty who do). However, once the courts starts weighing the harms from banning versus allowing marijuana (second guessing the legislature) then it would probably be justified in concluding that this law doesn't further a legitimate interest either.

Now obviously the distinction that people would try to draw here is that the ban on marijuana is motivated by a concern for the real concrete harms of drugs (deaths, crimes, etc.. etc..) but that's just false. Given the relative safety of marijuana compared to alcohol and the fact that the criminal element is a consequence of the illegality (if there were gangs running sex toys into Texas would it have changed this decision?) it is hard to avoid the conclusion that the illegality of weed is primarily a reflection of our moral disapproval at its use.

In short it seems to me the only way this decision can be justified without sweeping far far too broadly is with some kind of evolving consensus view of constitutional interpretation.
2.17.2008 11:46pm
TruePath (mail) (www):
Steve2:

The point of that remark was to observe that one couldn't distinguish the laws that prevent using weed during sex from those that prevent the sale of sex toys (thus preventing their use during sex) by saying the later is merely a pretext for regulating private intimate behavior while the former is not. In both cases the legislation bars a general activity (selling drugs/selling sex toys) with the aim of stopping both public and private uses of the items.
2.17.2008 11:49pm
TruePath (mail) (www):
Let me add that I think there is a reasonable argument that the government has no legitimate interest in trying to control what substances people put in their bodies (with informed consent). I don't, however, see how to distinguish this issue from the intimate activities issue.
2.17.2008 11:51pm
Clayton E. Cramer (mail) (www):

In the case of Griswold, the idiots in charge concluded that there was a Ninth Amendment right there against the states
My mistake. Justice Douglas's decision concluded that there was a right to privacy hiding somewhere in the Fourth and Fifth Amendments; Justice Goldberg's concurring opinion is the boneheaded one that points to the Ninth Amendment to limit state power.
2.18.2008 12:18am
Oren:
. . . proponents of the 14th Amendment, such as Rep. John Bingham, were also very clear that the 14th Amendment's privileges and immunities clause only imposed the first eight amendments on the states.
That begs the question of why they omitted that important qualification from the text. If they intended it that way, they should have drafted it:
No State shall make or enforce any law which shall abridge the enumerated privileges or immunities of citizens of the United States;
or maybe
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States as set forth in amendments 1-8;
2.18.2008 12:24am
ReaderY:
It should be pointed out that the Civil Rights Laws are every bit as much public morality laws as the sodomy laws.; Atlanta Motel went out of its way to characterize these laws as morality laws and made clear that the Federal Government has that same power to enforce public morality in the sphere of interstate commerce as a state does in the sphere of domestic relations/

Do these laws survive Lawrence? After all, it's been argued in both cases that no-one is hurt by either. In order to claim that one causes more harm than another, one has to believe that personal taste should play less of a role in choosing an employee than in choosing a date or spouse. Such a belief is a moral one.

There are people who spend their entire lives without a date because of others' choices, yet the choices causing this state of affairs are not labeled prejudices, nor do people who are denied sexual opportunities because of this regard themselves as victims of civil rights violations. There really isn't any more or less actual harm in the one case than the other; there's no empirical basis for a difference; the difference is in how we regard the matters morally.

A majority of the Supreme Court believes that sexual choices ought to be more important to people's lives than vocational choices. It feels animosity towards people whose life choices are different from what that body's membership perceives is right or best for them. There is no rational basis for the Supreme Court's preference for "private" as distinct from "commercial" choices. Millions of people, in complete defiance of what the Supreme Court says is best for people, divorce because they find their careers more important than their spouses. The Court makes no attempt to defend its preferences rationally; it writes about them in the sort of prose reserved for religious revelations, as if they were self-evident and so because the Court it was so. The Court's preferences are simple prejudices, as much based on animosity as any legislature's.
2.18.2008 12:31am
ReaderY:
Khalil Gibran wrote "our work is our love made manifest". The Supreme Court disagrees and believes that sex, not work, is the legitimate place for intimate self-expression unencumbered by society's views and laws. There's no rational basis to prefer one to the other. As the Gibran quote makes clear, it's no more inherently rational for society to pass laws based on or demanding some sort of connection between vocational activities and economic output (as distinct from individual transcendental fulfillment) than it is to pass laws connecting sex to procreation. The existence of such a connection is no more society's business in the one case than the other, and opposition to its lack can as accurately be described as pure, irrational animosity and prejudice in the one case as the other.
2.18.2008 12:41am
Albatross (mail) (www):
Here's an important distinction: Texas law has historically banned the sale of sex toys. But the sale of sex-toy-like objects billed as "novelties" and joke items has always been legal.

As such, there has been no shortage of sex shops in Texas. They just sell "novelties" instead of "sex toys."

Get it?
2.18.2008 12:48am
Randy R. (mail):
"anti-sex toy laws aren't backed by a comparable invidious hostility to a particular social group. "

I don't believe this is true. The Texas legislature was motivated by hostility to those who belong to a group who believe that sex can be fun, or at least, can deviate from 'vanilla' sex. Such a group, literally, deviants, is the victim of nothing less than sexual prudery.
2.18.2008 12:57am
Randy R. (mail):
I give credit to the dissent. It is refreshing to see a case like this be free from calls to morals or traditional American values. Although there is a fleeting reference to 'obscene' devices, the dissent pretty much limits itself to matters of law.

However, he couldn't help himself and nonetheless quoted from Scalia's dissent in Lawrence, as if it mattered on anything.
2.18.2008 1:02am
TruePath (mail) (www):
ReaderY:

Hmm, that's an interesting argument but I don't buy it in regards a right to privacy (read autonomy). It's certainly true that people don't feel their personal autonomy (right to control over their own lives) has been infringed anywhere to the same degree when considering laws over who to hire as in laws over who they could date or marry. Also unlike the case of dildos a strong argument could be made that regulating employment discrimination has large benefits to public safety (no race riots), economic benefits (stopping irrational waste) etc.. etc..


Where I have the issue is twofold. First of all it's not clear that people feel the same sense of an infringement of their personal autonomy to be unable to purchase sex toys as they do in the government actually being able to tell them what sort of sex they can have. Secondly it seems people do feel a deep sort of autonomy right in terms of what sorts of medications, foods and additives they put into their bodies. We don't let the law force people to have operations, become vegans, or even to require fat people not to eat fatty foods (the worst proposals have merely governed restaurants). Thus the question about distinguishing drugs (as well as the even harder one about drugs used during sex).
2.18.2008 1:03am
Dave Hardy (mail) (www):
The Texas legislature meets for something like six weeks every two years, to hit the bars and restaurants in Austin, pass a ridiculously low budget, collect a few lobbyist contributions, and then fly home.

Sounds like a great legislature. In six weeks every two years they can't do too much harm. Somehow this legislation got thru notwithstanding that very practical safeguard of liberty. That merely proves that no system designed by mortals is perfect.
2.18.2008 1:24am
Randy R. (mail):
Truepath, I'm not sure I understand your argument, but I will try to respond anyway. People *may* feel the same sense of autonomy about the purchase of sex toys as they do with how they have sex.

It is apparent to me that the Texas legislature isn't so much concerned about the sale of sex toys, but their use. They simply don't want people using them. If they didn't ban their purchase, then one could claim to purchase them as a collector, or sex toy enthusiast, and somewhat plausibly get out from the under the law, when in fact they might actually be using them.

So, they outlaw their purchase, use, sale, donation, whatever, to cover all grounds.

But how a person has sex is profoundly personal, just as personal as with whom one has sex. So -- the state can't prohibit difference races from having sex, or prohibit people of the same sex from having sex, and now, they can't prohibit what specific fun you might have.

I don't see the distinction that you are trying to apply. But I might be reading you wrong....
2.18.2008 1:36am
Randy R. (mail):
Conservatives are strangely silent on this case. This is what I expect them to say:

"I've read the Constitution, and I have yet to see where it says that a person has a right to use sex toys. The Constitutions is silent on sex toys, period. The court just made that up because they are liberal elitist activist judges."

They've use the exact same argument before, notably whenever the issue of gay rights comes up. So why the silence now?
2.18.2008 1:42am
Randy R. (mail):
I got this from a another blog:

"The state also argued in a brief that Texas has legitimate “morality based” reasons for the laws, which include “discouraging prurient interests in autonomous sex and the pursuit of sexual gratification unrelated to procreation.”

Apparently, this is true, since I saw it on other blogs. What business is it of the state to discourage sex unrelated to procreation? Why does the state assume that use of sex toys is a prurient interest? And why is that bad? And what the heck is 'autonomous sex?' And what is that bad?

A search around the internet found no one actually defending the law, which is strange. Where is are the moralists? I know Falwell is dead, but the others are still alive. Why aren't they condeming this deicision by activist judges? This is a campaign year after all!
2.18.2008 1:49am
Mr. Liberal:

Professor Somin's enthusiasm for this approach is profoundly disappointing.


I am sure Somin somehow thinks its all justified based on voter ignorance.
2.18.2008 2:45am
theobromophile (www):
The legislature chose to broadly define “obscene device,” not using the Miller test, but as any device “designed or marketed as useful primarily for the stimulation of human
genital organs.”4In 1985, the Texas Court of Criminal Appeals held that the statute did not violate an individual’s right to privacy, concluding that there was no constitutional right to “stimulate . . . another’s genitals with an object designed or marketed as useful primarily for that purpose.”5


Are certain blue medications (I think they are blue? Thank you to the spam filter - my last attempt at this was blacklisted - harrumph!) considered to be "devices" under the statute? The FDA's regulations would consider them to be drugs and not devices, but it is unlikely that the Texas legislature meant to import such language into their own Act. Would that not be the "primary purpose" of such chemicals?

Randy R., had I not been out of town all day, I would have beaten you to it:

"I've read the Constitution, and I have yet to see where it says that a person has a right to use sex toys. The Constitutions is silent on sex toys, period. The court just made that up because they are liberal elitist activist judges."


Insert "sex-crazed" for "elitist" and that is pretty much my complaint with this decision. :)

As for Virginia - oh, please. It was illegal to have premarital sex here until the Lawrence decision found a mysterious "right of privacy" in the Constitution. (Somehow, I can't see Madison and Jefferson resolving their differences in such a love-fest and then declaring that such acts must be Constitutionally protected....)
2.18.2008 3:06am
Mandatory Vacation (mail) (www):

There is an obvious distinction between Lawrence and the sex toys case in so far as anti-sodomy laws are often motivated by hostility to gays; anti-sex toy laws aren't backed by a comparable invidious hostility to a particular social group.


No particular social group? What about women? Women use sex toys much more frequently than men when masturbating- probably not quite comparable to porn, but only because of improvisation with things they're never going to ban. Massaging shower heads help back problems, right?
2.18.2008 3:15am
TruePath (mail) (www):
Randy R:

Let me distingush two points I was making.

1) In response to Reader Y that there is a difference between intimate sexual acts and employment discrimination. I take it you are not objecting to this one.

2) There is no coherent line you can draw which allows the courts to strike down bans on sex toy sales as pretextual attempts to regulate what people do in their intimate associations without also pulling in a broad swath of laws (like drug laws) into question as well.


Now I agree that regulation of intimate sexual contacts deeply offends our notions of personal autonomy and freedom. However, I take it as a clear empirical matter that people don't have the same direct feeling about the regulations of sex toys, e.g., we don't cry out against product safety laws for sex toys even though we would be horrified at a law that prohibited sex without a condom. Now the question is whether one can reasonably argue that the texas statute ought to be deemed unconstitutional just like a law that merely regulated the sexual behavior itself, on the grounds that it is merely a pretext to regulate that behavior.

For starters I think it is unclear that it is a pretext if we are going to be precise. It is a law that was passed with the desire to have a certain effect on the use of sex toys but if this is enough to call a law unconstitutional then all the various legislative efforts designed to discourage premarital sex would also be unconstitutional because their desired effect would be to inhibit a constitutionally protected intimate association.

Secondly assuming you could make that argument but then I would argue that you would then end up striking down a bunch of other laws. In particular if it is illegal to bar the commerce/trade in objects out of moral outrage just because they are primarily used in intimate sexual acts then how would you distinguish laws on prostitution? I also think similar arguments could be made relative to drugs. Both in general (in terms of our autonomy right to choose what we do/don't put in out bodies) and particularly in respect to the illegal kind of poppers that is primarily used for sexual pleasure.

Much as I think drugs and prostitution should be legal a much more coherent framework would seem to be ruling that while autonomy considerations prevent the government from directly regulating these acts (what you choose to eat/drink, how you choose to have sex) this doesn't extend any protection to the aides you might want to use in these acts.

Also suppose society decided it disapproved of certain kinds of plastic surgery (e.g. voluntary amputations for sexual purposes may be illegal to perform in the states). If that plastic surgery was primarily done to attract sexual partners would that magically be protected as well?
2.18.2008 4:59am
David Schwartz (mail):
This case doesn't compare well to the sodomy cases. In the case of sodomy, it is purely private, intimate behavior that is being prohibited. In this case, it is public, commercial behavior that is being prohibited, arguably as a proxy to prohibit private, intimate behavior.

But if you accept the proxy argument, then banning cocaine would, at least arguably, be a proxy to banning the private, intimate use of cocaine.
2.18.2008 5:16am
Oren:
Cocaine is bad for your health, masturbation is good for your health - how's that for a rational basis?
2.18.2008 7:02am
PersonFromPorlock:
Randy R.:

"I've read the Constitution, and I have yet to see where it says that a person has a right to use sex toys. The Constitutions is silent on sex toys, period. The court just made that up because they are liberal elitist activist judges."

Some who call themselves "conservatives" - but who are really Puritans of the Right, as opposed to the Puritans of the Left who call themselves "progressives" - might say so. But conservatives would say that where the Constitution is silent, We the People have granted the state no power to act in the matter.
2.18.2008 7:45am
Arkady:

Sometimes, rights have been plucked out of the behinds of some federal judges


But they're consenting adults.
2.18.2008 8:03am
Sid (mail) (www):
All,

Please, if you would, briefly explain the states' motivation to implement sex toy laws. I am not finding in any source a motivation to pass legislation. Zoning ordinances I can understand. Requiring age verification for purchases I can understand. What I am not finding is a spark, event, health trend, etc... that prompted the passage of any of the various state laws banning sex toys.
2.18.2008 9:03am
Anderson (mail):
It should be pointed out that the Civil Rights Laws are every bit as much public morality laws as the sodomy laws

Uh, no. Racial discrimination negatively affects other people in ways that should not need explaining to anyone familiar with U.S. history. Sodomy negatively affects no one other than the two persons committing sodomy. (The AIDS arguments are red herrings -- nothing stops someone from wearing a condom, or from being monogamous with an HIV-free partner.)

In this case, it is public, commercial behavior that is being prohibited, arguably as a proxy to prohibit private, intimate behavior.

No. That issue was addressed in the contraceptive cases. The state cannot say, "sure, you can use contraceptives, but you can't buy, sell, or distribute them." Carey v. Population Services.
2.18.2008 10:46am
Randy R. (mail):
Sid, I couldn't find any reason to intiate such a law either. However, I think there is a bigger issue, and that is one of changing attitudes in our society. Back when it was enacted, in 1974, I believe, your average middle class American probably didn't use or even know much about sex toys. That was generally considered weird, perverted, unusual,something only really naughty or adventurous people would use.

So it isn't a stretch to see that some regarded their use as a perversion, and we must outlaw perversion because it's against God's will, harms the children, blah blah blah. And in such a world, passing this law was probably considered a no-brainer for various reasons.

Today, there is hardly a person in the country who defends such a law (excepting the poor guy who had to write the brief for Texas). This is a massive change in attitudes in our country. Today, lots of 'normal' average middle class Americans use sex toys, or at least know about them. We see them used in porn all the time, so the fear that they are used only by perverts is gone.

the same is happening regarding gays -- once the fear of gay people is gone, then the laws used to oppress them make no sense and find no support.
2.18.2008 11:27am
Randy R. (mail):
Thaks, True path, I think I got it now. (I'm slower than most readers, especially on Sundays.) Yes, I understand your concern about how this connects to drug laws.

But I don't have an answer, except perhaps this one. When I was in law school, a prof. once suggested that SCOTUS really reflects prevailing middle class values more than it analyses law. It also tends to follow the changing values, rather than take the lead on the them.

Agree or disagree as you like.
2.18.2008 11:31am
Don Miller (mail) (www):
I can see why there is a Circuit Court split on this issue just reading through the comments.

Since the Texas Law did not prohibit the personal ownership or use of sex toys, but only the sale and distribution, I don't see how this is comparable to Lawrence at all.

Lawrence struck down a law that regulated what happened between two consenting people in private. This law regulated what products could be stocked on store shelves.

It would seem to me, that if this interpretation stands, it would impossible for States to regulate the sale of anything that was designed to be used in the privacy of ones own home.

This is a Commerce clause issue, not a privacy issue.
2.18.2008 12:08pm
JBL:
Drug laws and sex toy laws are distinguishable in that drug laws specifically regulate the substance, not the form.

To apply the same principle to both, the government could declare rubber (or plastic or whatever they're made from) a dangerous substance and regulate its use - automobile parts ok, direct contact with the genitals not.

Alternatively, a cocaine-based weapon would not qualify for Second Amendment protection.

The distinction may be immaterial relative to a coherent doctrine of individual autonomy, but it is a meaningful distinction.

As to the presumption of individual autonomy, I think there is a strong case to be made that the Federal Government is one of enumerated powers, and a weaker but still convincing case that the general presumption of individual autonomy should apply to the State Governments as well. But that interpretation is neither official nor popular.
2.18.2008 12:42pm
Anderson (mail):
Since the Texas Law did not prohibit the personal ownership or use of sex toys, but only the sale and distribution, I don't see how this is comparable to Lawrence at all.

Carey:

The business of manufacturing and selling contraceptives may be regulated in ways that do not infringe protected individual choices. And even a burdensome regulation may be validated by a sufficiently compelling state interest. * * *

Read in light of its progeny, the teaching of Griswold is that the Constitution protects individual decisions in matters of childbearing from unjustified intrusion by the State.

Restrictions on the distribution of contraceptives clearly burden the freedom to make such decisions. A total prohibition against sale of contraceptives, for example, would intrude upon individual decisions in matters of procreation and contraception as harshly as a direct ban on their use. Indeed, in practice, a prohibition against all sales, since more easily and less offensively enforced, might have an even more devastating effect upon the freedom to choose contraception.


Once we get a right to participate in consensual intimate conduct, the ban on sex toys obviously hinders the ability to engage in that conduct in the manner of one's choosing.
2.18.2008 12:44pm
Brian Mac:
"We see them used in porn all the time, so the fear that they are used only by perverts is gone."

Heh.
2.18.2008 12:55pm
Bob from Ohio (mail):
This conservative says that there is no "substantive due process right to engage in consensual intimate conduct in the home free from government intrusion" found anywhere in the United States Constitution. No matter what the Supreme Court says. So, yes, the judges are just making it up.

To find the "substantive due process right to engage in consensual intimate conduct in the home free from government intrusion", you first have to accept the incorporation doctrine. No textual constitutional basis at all for this doctine.

Then you have to accept that the federal constitution bans state morals legislation. I don't see that anywhere either. May not be wise but it is up to the citizens of that state to decide, not federal judges.
2.18.2008 1:23pm
Jon Rowe (mail) (www):
No textual constitutional basis at all for this doctine.

There is a vast amount of scholarship that shows the BOR to be properly incorporated under the privileges or immunities clause of the 14th Amendment. In addition the original meaning of the term "privileges or immunities" includes a general substantive right to liberty.
2.18.2008 1:32pm
Jon Rowe (mail) (www):

I've read the Constitution, and I have yet to see where it says that a person has a right to use sex toys. The Constitutions is silent on sex toys, period. The court just made that up because they are liberal elitist activist judges.


This is really a dumb argument; though it makes for good talking points among the constitutionally illiterate. The Constitution says nothing about states being permitted to ban sex toys either. That the Constitution doesn't mention "sex toys" is nearly irrelevant; the Constitution must answer vast areas of life, only a small fraction of which is detailed in specific terms like the President's age requirement.

The same broad or general language, i.e., 10th Amendment's broad grant of state's rights, might be superseded by likewise broad and general language in the 1st, 9th or 14th Amendments. That you can't find a specific term like "sex toys," or "sodomy" is nearly utterly irrelevant. The Constitution likewise never mentions the word "race."
2.18.2008 1:41pm
aces:
As for Virginia - oh, please. It was illegal to have premarital sex here until the Lawrence decision found a mysterious "right of privacy" in the Constitution. (Somehow, I can't see Madison and Jefferson resolving their differences in such a love-fest and then declaring that such acts must be Constitutionally protected....)

Sally Hemings, call your lawyer...
2.18.2008 1:50pm
Cornellian (mail):
As for Virginia - oh, please. It was illegal to have premarital sex here until the Lawrence decision found a mysterious "right of privacy" in the Constitution.

You think this "mysterious 'right of privacy'" appeared for the first time in Lawrence v. Texas?
2.18.2008 2:21pm
Cornellian (mail):

This is a Commerce clause issue, not a privacy issue.


Does the statute purport to prohibit all sales, even cross-border sales, or only sales occurring within Texas? If the former, then that would certainly seem to be a constitutional problem for a state statute. If the latter, I seem to recall it's got something to do with an "undue burden" on interstate commerce.
2.18.2008 2:23pm
Cornellian (mail):
The Texas legislature meets for something like six weeks every two years, to hit the bars and restaurants in Austin, pass a ridiculously low budget, collect a few lobbyist contributions, and then fly home.

Thus proving that no matter how much you cut back on the amount of time they spend legislating, they'll still manage to do something stupid.
2.18.2008 2:25pm
Frater Plotter:
Since the Texas Law did not prohibit the personal ownership or use of sex toys, but only the sale and distribution, I don't see how this is comparable to Lawrence at all.

Well, if you own more than one ounce of sex toys, that's presumed to be "possession with intent to distribute".
2.18.2008 2:26pm
Anderson (mail):
Well, if you own more than one ounce of sex toys, that's presumed to be "possession with intent to distribute".

And your sentence may end up being years longer if the vibrator is weighed with the batteries installed.
2.18.2008 2:50pm
Bob from Ohio (mail):
Jon: How do these authorities get around the establishment clause of the 1st Amendment? In 1789, several states had established churches, that portion of the First Amendment was a shield to protect the states. Now, due to incorporation, the establishment clause is a weapon used against states.

Further, how come it took 70 years for the incorporation doctrine to be established, if it is so textual? And if the BOR is incorporated, how come parts of it are not?

Not buying incorpoartion. I know the Federal Courts do but that doesn't make it right or justified.
2.18.2008 3:02pm
Anderson (mail):
Further, how come it took 70 years for the incorporation doctrine to be established, if it is so textual?

And another thing -- if all men are really created equal, then why wasn't the 13th Amendment enacted sooner?
2.18.2008 3:30pm
Jon Rowe (mail) (www):
Bob:

Instead of me trying to explain it all, I will just defer to a better, more distinguished and learned authority. Get Akhil Amar's book on the matter. He answers every one of your questions.
2.18.2008 3:32pm
Bob from Ohio (mail):
Anderson: The text of the Declaration of Independence was clear, just not followed. Not the case with the incorporation doctrine, is it?
2.18.2008 3:56pm
loki13 (mail):
Bob from Ohio,

The text of the 14th (privileges or immunities) is clear, and it was to be the people who wrote it and the people who ratified it (original intent + original expected application). Unfortunately, you can thank the Supreme Court (Slaughterhouse) for screwing it up, and later Supreme Courts fol following Slaughterhouse and then:
a) Using SDP to incorporate (because PorI was read out of the Constitution)
b) Doing selective, instead of complete incorporation (as Black, among other, argued for).

This has been well researched, and you can find it in Prof. Amar's book among many other places (and countless Law Reviews... there must be a student note every semester on it). If you choose to ignore it because you don't like it, just say so.
2.18.2008 4:23pm
loki13 (mail):
I should also mention, as has been pointed out before, that Justice Thomas wants to revisit the SDP and base incorporation on PorI. As an aside, I have a few thoughts:

1. I disagree with him on most things, but he is correct on this, as it gives a texturalist basis for enumerated and unenumerated rights. See (e.g.) Charles Black, Unnamed Human Rights in the States, 65 St. John's L. Rev. 17.

2. I still think he has a hidden motive- this might allow expansion of some rights (trial by jury in states), but would also be a backdoor to curtail others. But maybe I'm cynical.
2.18.2008 4:27pm
Sk (mail):
"But I don't have an answer, except perhaps this one. When I was in law school, a prof. once suggested that SCOTUS really reflects prevailing middle class values more than it analyses law. It also tends to follow the changing values, rather than take the lead on the them."

I agree with this. On the previous post on this case (about a week ago), I argued that there is no constitutional difference between banning dildoes and banning lawn darts, leaded gasoline, 3-wheeled ATVs, high energy light bulbs, flammable halloween costumes, high water-use toilets, etc etc ad infinitum. Nevertheless, our government can tell us what halloween costume to wear next October, but cannot tell us whether to use a dildo.

The only reasonable explanation for this is that SCOTUS/judges/lawyers are too sophisticated to take a dildo ban seriously, and thus overthrow it however they can (other than the democratic method of getting enough votes to repeal the law, of course) -they invent a constitutional right to a dildo, sneer at idiot legislatures in Texas, and congratulate themselves on a job well done.

I also stated that while I disagreed with the Texas ban on dildos, I disagree with the idea of 'sophisticated' lawyers deciding what my elected representatives can and cannot do (on such petty manners as the sale of rubber cylinders) even more. I still do (I think the coming ban on incandescent light bulbs is idiotic. I don't want lawyers to overrule my legislatures to get the judgement I want, though). Democracies makes mistakes once in a while. Non-democratic solutions should not be the cure.

Sk
2.18.2008 4:40pm
Spartacus (www):
The Texas legislature meets for something like six weeks every two years

Actually, it's 140 days (see Tex. Const. Art. III, Sec. 24(b), unless the gun'ner decides to call a 30-day "special session," or 5, as Perry did in '05.
2.18.2008 4:46pm
Randy R. (mail):
Jon Rowe: I wasn't making the argument that because sex toys aren't mentioned in the Const, there should be no right to own them. My argument is that whenever the courts find a right that conservatives don't like (such as a right to have gay sex), they trot out this argument.

With regards to the case at hand, no one has yet flammed the blogs with this argument. Now Bob from Ohio raises the point, but at least he does it because it's consistent with his beliefs.

But my point still remains -- where is the outrage from moralists over this case? There simply is none. Yet from 1974 until this year, no one challenged the sex toy law. Why did it take so long? Because of changing views of morality.

My prediction? In twenty years, when SCOTUS finally strikes down all prohibitions to same sex marriage, we will get the same big 'who really cares'? shrug.
2.18.2008 5:25pm
Bob from Ohio (mail):
Loki: I know the justifications. I am familiar with the case law. I am still not persuaded.

If it is so clear from the text, why is not the whole BOR incorporated? The rights to a grand jury and jury trials in civil cases seem just as important as the ones that have been incorporated. I think that is the flaw in the doctrine.

No matter the theory, the supreme court was right to reject incorporation early on, and wrong to accept it later. Just part of the "living constitution" trend and the destruction of federalism.
2.18.2008 6:48pm
Jon Rowe (mail) (www):

If it is so clear from the text, why is not the whole BOR incorporated?


"Privileges or immunities" is a term of art which includes at least the first 8 Amendments to the BOR, plus some other rights, and minus some federalist mechanisms in the BOR. If the Court didn't understand this and improperly incorporates not enough of the BOR through the wrong clause, that's their error, just as they made a big error in gutting the P or I in the Slaughterhouse cases. You really need to read Amar's book before you continue to make these assertions.
2.18.2008 7:17pm
gasman (mail):
I'm certain court watchers everywhere were wondering how each justice would position themselves on a dildoe.
2.18.2008 7:57pm
Harriet Miers's Law Partner:
It is illegal for Texas legislators to accept political contributions 30 days before the regular session, during the 140-day regular session for 20 days thereafter (the veto period). Tex. Elec. Code Sec. 253.034(a). There are some exceptions, but it's pretty much a flat out ban.

As the video points out, this was done by a right-winger (who was a Democrat at the time) who gained roughly 15 minutes at the front mike and got it on because nobody wants a mail piece saying "Ilya Somin Voted For Sodomy."

And let's not forget it was the Democrats in the Texas House that drew the first real national attention to Tom "I am the Government" DeLay's thuggery and heavy-handedness. He showed his true colors to the nation when he called out Homeland Security when the Killer Ds went to Ardmore.
2.18.2008 7:59pm
PaulK (mail):
The core problem seems to be not what the moral, social, epistemological, or any other nature of sex toys is, but whether the court's reasoning and premises actually give rise to the conclusions it is drawing. Both this case and Griswold involved the prosecution of individuals for selling certain products. (Unless I have the facts of this case quite wrong.) Yet the decisions in both cases act as if the prosecution were for the use of certain products in a sexually intimate setting.

Now, say whatever you like about markets and the freedom of individuals to buy and sell (or otherwise convey) what they please — but with a sole exception not at issue here, a commercial transaction simply is not a consensual sexual act between adults, and it has been the privacy of that act on which the court has based this jurisprudence. And determining the constitutional parameters surrounding the latter tells you nothing about the capacity of the state to deploy its police powers in regulation of the former. The acts are inherently dissimilar, and the procedural steps necessary to investigate them differ so much so as to border on hilarity (imagine a warrant request proceeding in which the police attempt to describe the time and place at which they have reasonable grounds to believe a sex toy will be used). And simply because use is purportedly protected doesn't mean that sale has to be in protection thereof — a statute prohibiting sale and transfer does not prohibit manufacture or importation. Maybe the Constitution protects the whole kit and kaboodle — but the court should at least keep straight what it's talking about.
2.18.2008 8:15pm
Bill Dyer (mail) (www):
As Prof. Somin notes, there was a solid dissent by Circuit Judge Rhesa Barksdale. The author of the panel opinion, Senior Circuit Judge (and former Texas Supreme Court Justice) Thomas M. Reavley, while a very experienced and well-respected jurist, can't vote in en-banc proceedings. When the author of a panel opinion can't participate in actively defending it during discussions about rehearing en banc, that often gives a dissenting judge a real advantage. My guess is that there will be serious consideration given by the Fifth Circuit to rehearing the case en banc. And this is the exact kind of case in which current Fifth Circuit Chief Judge Edith H. Jones might become very actively involved in trying to reverse the panel ruling.

I would agree that Lawrence v. Texas supports this result, and further agree with Prof. Somin's comment that that's precisely because Lawrence is based on substantive due process grounds. "Substantive due process," however, is an illegitimate constitutional doctrine which translates pretty directly to "Which side of the bed Mr. Justice Anthony ("Sweet Mysteries of Life") Kennedy got out of bed on today."

As Prof. Somin notes, the Texas law doesn't ban possession as such, but "wholesale promotion" of them. There's a statutory presumption in § 43.23(f) that possession of six or more indicates an intention to promote them. This became known in Texas as the "five-dildo safe-harbor rule." (The late Molly Ivins wasn't the only Texan with a sense of humor.)

Prosecutions, even of local stores, were extremely rare. However, Texas state appellate courts had routinely upheld the statute against constitutional challenges, albeit without showing much enthusiasm for their task, as evidenced by this opinion from Judge Bea Ann Smith in Webber v. State, 21 S.W.3d 726, 732 (Tex. App. -- Austin 2000, pet. ref'd) (Smith, J., concurring):

I do not understand why Texas law criminalizes the sale of dildos. As Justice Brown so aptly noted, "Here we go raising the price of dildos again." Regalado v. State, 872 S.W.2d 7, 11 (Tex. App. -- Houston [14th Dist.] 1994, pet. ref'd) (Brown, J., concurring). Even less do I understand why law enforcement officers and prosecutors expend limited resources to prosecute such activity. Because this is the law, I reluctantly concur [in affirming the conviction of the guy selling them].
2.18.2008 8:23pm
Randy R. (mail):
Not long ago, we had a debate about judicial review of legislation -- is it right in a democratic society?

Here, I'm glad the issue came down firmly that, sometimes, the majority is idiotic.
2.19.2008 12:18am
Serendipity:
Ilya,

I'd like to see some sort of proof that "anal sex creates considerably greater risk of STD transmission than does the use of sex toys." Suppose one shares sex toys with another without washing them or using condoms on the sex toys? How could the risk of infection be considerably different from unprotected anal sex, or unprotected vaginal sex for that matter? That is all course is based on the assumption that one of the partners happens to be infected with something in the first place. Moreover, in Georgia at least, when the sodomy laws were still on the books, oral sex was also considered sodomy. While I'm sure people have become infected from oral sex, I think the risk of infection is pretty negligible, particularly with HIV.

I guess the point is that I'm always very weary of basing law or policy on something as illusory as perceived risk of infection. It's been said that circumcising all males, particularly in African countries ravaged by HIV and AIDS, could lead to reduction of HIV infection among all people and cervical cancer in women. Perhaps this is true, but could almost guarantee that the castration of any male found to be HIV positive would eventually eradicate the virus. Clearly there is a reason we don't behave that way. The way I see it, citing public health concerns is really just a way of "medicalizing" sin and holding on to our Puritan sensibilities as other posters have called them.
2.19.2008 12:48am
Asher Steinberg (mail):
Suppose new neurological and psychological research shows that adolescents are capable of giving fully voluntary and informed consent to engage in sex acts with adults. Does it then become unconstitutional to ban sex between a 15 and 35 year old? This isn't my hypothetical; a constitutional law professor over at prawfsblawg suggested a couple weeks ago that teenagers ought to be allowed to engage in sex with adults if they get what he calls a sex ed license. Putting aside the humorous aspects of his idea, do you really think the state would be acting unconstitutionally if, notwithstanding this hypothetical research that completely puts to rest any worries about consent, it chose to continue its ban on minor-adult sex simply because of the moral revulsion the vast majority of its citizens felt towards pedophilia? Or, what if a species of ape turns out to be capable of giving consent to sex? Does bestiality in those circumstances become constitutionally protected on the grounds that banning it would simply be a regulation of morality instead of a constitutional protection of animal rights? Does anyone honestly think that bestiality is illegal so as to protect animals? I think it's deeply problematic to claim that the state can't regulate morality qua morality in its criminal law when, after all, our system assumes a retributive theory of punishment. When the Court takes an Eighth Amendment case on three-strike laws, it's asking if the punishment is commensurate to the crime, and, in doing so, implicating notions of blameworthiness and morality.
2.19.2008 1:57am
John Howard (eggandsperm.org) (mail) (www):
Griswold was about use, not sale: "The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives, rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship."

And this law regulated sale, not use, so it would seem to be consistent with the Griswold ruling.
2.19.2008 4:54am
KJJ:
How can any obscenity laws be consistant with this ruling?
2.19.2008 1:49pm
Oren:
How can any obscenity laws be consistant [sic] with this ruling?
I don't think any of the votes in the majority of Lawrence are keen on any extension of obscenity laws past Miller. At any rate the internet has mooted that question altogether (unless you want some sort Chinese-style firewall).
2.19.2008 2:39pm
KJJ:
At any rate the internet has mooted that question altogether (unless you want some sort Chinese-style firewall).


How so? Obscenity prosecutions are alive and well.

But again, under this ruling, I don't see how obscenity laws can be valid when they proscribe sex speech, while laws banning sex toys are unconstitutional.
2.19.2008 3:16pm
Oren:
Obscenity prosecutions are alive and well.
[citation needed]
2.19.2008 7:24pm
KJJ:

[citation needed]


Below are several recent and pending obscenity cases.

US v Five Star DVD (2007 ARIZ)
US v JM Productions (2007 ARIZ)
US v Gartman and McDowell (5th Cir. 2007)
US v Croce (2006 Mid FLA)
http://www.usdoj.gov/opa/pr/2006/September/06_crm_599.html

Cases Currently Pending

US V Extreme Associates (W PA)
US V Issacs (Los Angeles CA)
US V Killbride (9th)
US V Harb (Utah)
US V Little (Cent Fla)
US V Fletcher (W PA)
Florida V McCowan
Virginia V Krial
Louisiana V. Le Video Store
2.20.2008 1:19am