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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.

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The Fifth Circuit Ban on Sex Devices:

The 2-1 Circuit Court of Appeals decision against the Texas ban was rightly decided, at least according to an article that Glenn Harlan Reynolds and I wrote for the Hastings Constitutional Law Quarterly. The 5th Circuit decision relies, reasonably, on Lawrence v. Texas. Although our article is pre-Lawrence, we suggest that such cases amount to a judicial re-invigoration of traditional understandings of the police power--and a rejection of view that state authority is a limitless ocean in which a few islands of rights may be found. Rather, the police power is itself finite, and simply is not broad enough to reach conduct such as that banned by the Texas statute.

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Dildoes Going to the Supreme Court?

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.

40 Comments

Banana split:

I have some of the same reactions as Eugene to the Fifth Circuit's denial of rehearing en banc in the sexual-devices case. The fact that there is now a split between the Fifth Circuit and the Eleventh Circuit on whether a state can ban the commercial promotion of sexual devices (including, without limitation, "dildos" and "artificial vaginas") increases the likelihood the Court will hear the case. Likewise, the fact that seven judges on the Fifth Circuit saw fit to dissent in writing from the denial increases the likelihood cert will be granted. Such a review could be the occasion for some much-needed clarification of Lawrence.

On the other hand, I take more seriously than Eugene the possibility that the Court will simply believe the case is beneath its dignity, or is embarrassing, or does not involve an issue of sufficient importance. Add to that the fact that the circuit split is unlikely to grow since I'm unaware of comparable laws outside the jurisdictions of these two circuit courts (correct me if I'm wrong, I haven't researched the issue). This may simply be an issue for future law school exams.

If the Court does take the case, how might the Court decide it? Lawrence seems to be the main precedent, though the dissents in the Fifth Circuit missed a few others that would have some bearing on the Court's decision. Here are some possibilities for an outcome. These are very preliminary thoughts.

(1) Broad fundamental right; Texas law unconstitutional. The Court could clarify that Lawrence was indeed a fundamental-rights case, contra Judge Garza's views in dissent on the Fifth Circuit. It could then hold that the use of sexual devices by adults in the privacy of the home partakes of that fundamental right: broadly defined, perhaps a right to "adult sexual autonomy." The next step would be to address Judge Garza's argument that the Texas law is untroubling because it does not ban private use or possession, but only "commercial promotion." That distinction, the Court could hold, makes no difference in the Court's case law. It's inconceivable under Griswold, for example, that the Court would uphold a total ban on the sale of contraceptives, while striking down the ban on use. In Eisenstadt v. Baird, which Judge Garza did not cite, the Court struck down a ban on the distribution of contraceptives to unmarried people. By analogy, the Court would not uphold a ban on the sale of newspapers, magazines, films, and books that contain material protected by the First Amendment. Having gotten past the commercial aspect of the case, the Court would then hold that the state's asserted interest in morality is insufficient to sustain a law infringing on the exercise of a fundamental right.

(2) Narrow fundamental right; Texas law constitutional. The Court could hold that while Lawrence recognized a fundamental right, it is a narrow right, a "relational right" (not a general right to adult sexual autonomy) in the sense that it is based on protecting intimate sexual activity that may lead to a more enduring bond between two people. Purchasing a sexual device, which the couple then uses, may enhance sexual pleasure but is too peripheral to the core of the right. The law would then have to be analyzed as a rational-basis case (see #4 below).

(3) Rational-basis review; Texas law unconstitutional. The Court could hold either that Lawrence was a rational-basis case, or was a narrow fundamental rights case (see #2). Either way, a ban on commercial promotion of a sexual device need only be rationally related to a legitimate state interest. But does the state of Texas have a legitimate interest in a total ban on commercial promotion of sexual devices? Justice Scalia, whom lower court judges (including Judge Garza) love to cite as the authority on the meaning of Lawrence, argued that the one unequivocal holding of the decision was that all morals legislation was at an end. No longer could a state walk into court to defend a law, say that "morality" was the only reason for the law, and expect to win. If he's right about that, and even if only rational-basis review applies, then the Texas law should be unconstitutional since the state's only defense of the ban on commercial promotion was morality.

(4) Rational-basis review; Texas law constitutional. The Court could hold that only rational-basis review applies (for the reasons given in #3), but that a morality-based justification is sufficient to uphold the law. The Court could reach this conclusion under an analysis like the one Eugene suggests, whereby the Court holds that some "liberty interests" are more equal than others, that is, more important in the lives of those who exercise them, and that buying and selling sexual devices just isn't very important. For these low-level liberty interests, a morality-based state interest is sufficient.

(5) Sliding scale; Texas law constitutional. The Court could avoid, once again, any definitive application of its usual bifurcated approach to rights in substantive due process cases, and thus avoid clarifying Lawrence. Instead, the Could could engage frankly in the kind of sliding-scale analysis that Eugene suggests it might use: the "importance" of a liberty is "weighed" against the "strength" of the state interests. The analysis could go something like this: Having sex with another consenting adult in the privacy of your home is an important liberty, just like using contraceptives or getting an abortion, which a conclusory morality interest could not outweigh. However, buying and selling (as opposed to using) sexual devices is not a very important interest in the intimate lives of individuals, so even a conclusory morality interest is good enough to sustain a ban.

(6) Sliding scale; Texas law unconstitutional. On the other hand, the Court could say that commercial sale is often a necessary precursor to use, as with contraceptives. And use of sexual devices, like use of contraceptives, is an important aspect of sexual intimacy for some people (especially those with sexual dysfunctions). Given the importance of the personal interest, a mere morality concern by the state is not enough to justify a total ban on commercial promotion.

(7) Or something else entirely.

***

Of these, I think #1 and #3 are the most likely outcomes. I doubt the Court will opt for #2 because, while Lawrence does discuss the importance of the conduct to relationships, I doubt that's a substantive limit on the right. It would be very difficult for the Court to decide in future cases what aspects of sexuality do and do not help build relationships. #5 and #6 seem unlikely, but certainly possible, to me. Justice Scalia's recent opinion in Heller, joined by Justice Kennedy, explicitly rejected a balancing approach to protection of Second Amendment rights because such approaches are unusually malleable. #4 looks a lot like #5 and #6, but at least would fit closer to the established framework, and so may be a more likely vehicle for the kind of analysis Eugene predicts.

In any event, if the Court takes the case I'd expect a 5-4 decision, with Justice Kennedy again casting the deciding vote. Maybe that alone makes #7 the most likely outcome of all.

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Devices "Useful Primarily for the Stimulation of Human Genital Organs" Going to the Supreme Court?

Friday, the Alabama Supreme Court upheld (by a 7-2 vote, in 1568 Montgomery Highway, Inc. v. City of Hoover) a state statute that criminalizes, among other things, "knowingly distribut[ing] ... any device designed or marketed as useful primarily for the stimulation of human genital organs for any thing of pecuniary value." (The "for any thing of pecuniary value," I take it, modifies "knowingly distribut[ing].")

It's quite possible that the issue will now go to the Supreme Court. There was already a split on whether such statutes are constitutional in the wake of Lawrence v. Texas. The Eleventh Circuit upheld the Alabama statute in Williams v. Morgan (2007), but last year the Fifth Circuit struck down a similar Texas statute in Reliable Consultants, Inc. v. Earle. Texas decided not to ask the U.S. Supreme Court to review the Fifth Circuit decision, despite the circuit split. But presumably the losers in the Alabama case will likely ask for review, and the split creates a decent chance of the Court's agreeing to hear the case. Last year, when I was assuming that Texas would indeed ask the Court to review the Reliable Consultants decision, I predicted that:

(1) The Supreme Court will agree to hear the case.

(2) The Supreme Court will conclude the statute is constitutional.

(3) The vote will be at least 6-3, because even some of the liberals on the Court — especially 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. The majority on the Court will likely 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).

I think the chances for cert (i.e., the Supreme Court's granting certiorari and thereby agreeing to hear the case) are less here, because there's no decision of a state legislature being struck down by a federal court -- a sort of inter-governmental-entity split that I think the Court itself sees as a pointer towards review. True, the Texas law remains invalidated, but Texas itself chose not to fight that battle. Moreover, here as before the case is both of comparatively minor practical importance and the sort of thing that some Justices might see as beneath the Court's dignity. Still, there seems to be a decent chance of cert here.

Related Posts (on one page):

  1. Devices "Useful Primarily for the Stimulation of Human Genital Organs" Going to the Supreme Court?
  2. Banana split:
  3. Dildoes Going to the Supreme Court?
  4. The Fifth Circuit Ban on Sex Devices:
  5. Dildoes Going to the Supreme Court?
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