Earlier this year, I noted that the Texas ban on dildoes — yes, it expressly mentions "dildo" — was struck down by the U.S. Court of Appeals for the Fifth Circuit (and just in time for Valentine's Day). The law, the court held, violates Lawrence v. Texas right of "adult consensual sexual intimacy in the home."
On this, the Fifth Circuit panel disagreed with the Eleventh Circuit, which upheld a similar Alabama law last year. I noted that there was 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).
Today, the Fifth Circuit denied rehearing en banc, over the dissent of seven judges; six of them sharply disagreed with the panel decision on the merits, and all seven noted the circuit split. My sense is that this increases still further the chances that the Supreme Court will decide the split is important and worth addressing. The Justices might still see this as a case that's too unimportant practically (as opposed to symbolically and jurisprudentially) and too undignified-sounding factually to hear. But I think that seven circuit judges' belief that this case is jurisprudentially important enough to merit a written dissent from denial of en banc rehearing will increase the chances that the Court will think it's important enough to justify a place on the docket.
So I'll go out on a limb and predict:
(1) The Supreme Court will agree to hear the case.
(2) The Supreme Court will reverse the panel decision and conclude the statute is constitutional.
(3) The vote will be at least 6-3, because even some of the liberals on the Court — I particularly have in mind Justice Breyer — and moderate conservative Justice Kennedy will think that the courts' power to recognize unenumerated rights should be saved for rights (e.g., abortion, contraception, sexual intimacy, parental rights, right to refuse medical treatment, right to live with close family members, and the like) that are more important in most of their exercisers' lives. And this is so even though the government's arguments for the practical benefits of the law seem comparatively weak, or as to the supposed immorality of the conduct, largely conclusory. I think the majority on the Court will conclude that such conclusory moral arguments are adequate except when something more important to most people's lives is at stake (since probably no Justice accepts the libertarian constitutionalist notion that a broadranging liberty to do what one pleases so long as it doesn't directly enough hurt others is itself so important that it should be recognized as a constitutional right).
None of this is to endorse either a narrow or broad view of unenumerated rights; I'm simply trying out my crystal ball here. Please note that it's been notoriously unreliable in the past.
Thanks to How Appealing for the pointer.
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The en banc dissents are the rantings of petulant children. Most of their arguments are silly. Their main argument seems to be this idea that the right to make decisions about private, consenual sexual conduct does not extend to the right to sell sex devices. But the Supreme Court has already rejected this argument in the context of birth control: the right to use birth control would be fairly meaningless if the state could simply ban the sale. The dissenters never even address this. Moreover, regardless of whether the law bans the sale or bans the use of sex toys, the lone state interest at stake is the state interest in morally opposing sexual conduct. Lawrence made it quite clear that sexual morality is not a legitimate state interest and so the Supreme Court would have to overrule that portion of Lawrence to disagree with the Fifth Circuit’s panel decision. Finally, the en banc dissenters make an odd argument that this case implicates the Supreme Court’s obscenity jurisprudence. Unless I’m missing something obvious, sexual devices are not obscene, as that is understood in Supreme Court decisions starting with Miller.
Perhaps the ban could be challenged on 1st amendment religious free exercise grounds. Talk about "slouching towards Gomorrah."
What about Long Dong Thomas? DuPont Circle Souter?
So Eugene, you are stating that the Supremes believe that butt fucking is a significant enough part of people's lives to be given special constitutional protection but the free trade of goods and services between consenting adults (without which people would die) is not important enough.
I would guess that if you took a survey people would find commerce to be a much more important part of their lives than anal intercourse.
huh?
Not that there's anything wrong with that.
Bahama Passage
Garza tries to make much of the fact that the law is not a ban on the use of devices, but instead "only" a ban on the selling, advertising, giving, or lending of such devices -- a ban on conduct that is mostly commercial (although that label doesn't necessarily describe lending or giving). In this sense, the Garza opinion recalls the Stanley v. Georgia distinction between bans on the sale and transfer of obscenity (constitutionally permissible), and bans on the use of such obscenity in one's home (impermissible).
But I think the Justices will simply conclude that the state's primary interest here is not a legitimate one in the modern age, no matter the standard of review, and regardless of whether the law reaches directly into the home. Although the statute is aimed at the transaction of the devices, the state's interest is concedely on the downstream uses, namely, in "discouraging prurient interests in autonomous sex and the pursuit of sexual gratification unrelated to procreation."
In other words, deterring masturbation and (non-procreative) orgasm: a state "interest" that is both futile and absurd -- archaic, in a word. The Court wouldn't even have to reach the broad question Garza fixates upon -- whether and when a "morality"-based interest can ever justify regulation of liberty. It would suffice simply to conclude that this particular "morality"-based interest is not entitled to any solicitude.
To paraphrase the bad guys in a Scooby Doo episode, "Texas would have gotten away with it if it weren't for that pesky Ninth Amendment".
At least the puritans all *admitted* to having guns.
I don't see 5 Justices on the Court right now who'd be interested in adding to the number of cases striking down legislation on the basis of the simple illegitimacy of a state's reason for passing the legislation. The Cleburne - Moreno - Romer - Lawrence line has the Court out at the shank end of its own claim to legitimacy, and while I myself think that line of cases is grounded in something quite right, I don't see five on the Court right now who'd be interested in pushing that line further, especially on a matter so easily ridiculed as the use of sex toys.
OTOH, if Marty is right, then this will produce a Scalia dissent that will truly be suitable for framing.
If the Texas legislature forbade all heterosexual copulation other than the missionary position, on the grounds that any other position was unnatural and degrading, would that be legitimate? I think obviously not, because the intrusion on quintessentially private conduct is so patently unjustified by any legitimate state interest.
Ditto vibrators.
I highly doubt that. Sex is far more important to most people than most other things. In any case, Duncan, you make the mistake of thinking that dildos are used only for, as you put, 'buttfuckers.' However, plenty of heterosexual men and women use dildos, as well. Plus, the law isn't against the USE of dildos, but rather sale of them.
Apparently, Texas has decided that the sale of dildos is immoral. How exactly is it immoral? That seems to be something that no one ever explains, and yet to me it seems rather central to this case.
The distinction between sale and use is a makeweight. Could Texas ban the sale of lubricants like Vaseline on the ground that they make anal intercourse easier?
Obviously, precedent moves downstream, not upstream, but does anyone know the judicial politics between the DC Circuit and SC?
The difficulty is that you appear to be getting your notion of what Lawrence clearly holds from what Justice Scalia says it must mean in his dissent. Of course, what Justice Scalia says a majority opinion means in a dissent is not necessarily the same as what an opinion means.
I don't know how this affects the cert possibilities, but the Court will face a lot of jokes like that (and much better-written ones) if it takes the case.
I can see it now... the first person to bring their vibrator into the police station for registration will be denied because the batteries are loaded from the bottom and as a result it's classified as a machine gun...
A principled approach would flatly say that all consensual conduct among people over 18 is unconditionally protected; it seems to me anything less would be judicial lawmaking.
That *is* interesting; I'd like to think Southwick is too smart to want to fool w/ such stuff. N.b. that Southwick, tho on the bench from Mississippi, is a Texan originally.
Spelling the word with an "e" seems to be an acceptable variant, which Dan Quayle would no doubt endorse.
Fair point -- I had forgotten that passage. I guess I don't take it too literally, though; there is a lot more going on in Lawrence than that, even though that is in fact in the majority.
First, the issue is likely to discomfit the Justices - it's just too undignified. So I think the Justices will be open to any plausible reason to deny cert. A simple one is that the case is not important, and importance too is one of the criteria for granting review. The lack of importance stems not just from the lack of gravitas, but also from the extremely limited nature of the facts, specifically the point that only two states other than Texas and Alabama have these statutes to begin with (Mississippi and Virginia). 517 F.3d at 741. So especially for a court that likes to limit its docket to cases truly worthy of its attention, the question of statutory validity here is unlikely to seem weighty enough to merit review.
The doctrinally significant question raised by the sex toys litigation is whether the Court in Lawrence v. Texas intended to limit the impact of a protected liberty interest to relationships between individuals (which, given the actual facts of Lawrence, would have to include a one-night stand), as some commenters have suggested. Alternatively, more in line with the text of the decision, the Court's ruling in Lawrence could be read more broadly as a prohibition against a state criminalizing harmless consensual adult sexual behavior based on the invocation of "morality" and as giving the individual's interest in sexual autonomy or privacy heftier weight, requiring that a state have more than a minimally rational basis for abridging (even assuming that "morality" without harm would constitute a rational basis). This is essentially what the circuit split is about.
Because the Fifth Circuit has now adopted the broader, in my view correct, reading of the meaning of Lawrence, a grant of cert to possibly overrule it would have to come from the conservative wing of the Court. In other words, a minimum of four conservative Justices would have to agree that the Court should use the sex toys case as the vehicle for revisiting this classic morality-versus-harm question. Scalia? Maybe. Thomas? He thought the Texas sodomy law was silly; hard to believe he would want to spend time on this one. The new Chief Justice? Alito? There is no way to know about these two, since neither was a member of the Court when Lawrence was decided. But my bet is no.
So, although we don't know yet whether Texas will even file a cert petition in this case, I'm going out on a limb and predicting that even if they do, the Court will decline to grant it.