Fifth Circuit holds sex device law unconstitutional

In a 2-1 decision yesterday, a panel of the Fifth Circuit Court of Appeals held that Texas's criminal ban on the distribution of sexual devices violates the Fourteenth Amendment's guarantee of personal liberty and privacy. The law defined any device "designed or marketed as useful primarily for the stimulation of human genital organs" as "obscene," and made selling, advertising, giving or lending such devices a crime. Persons who owned six or more such items were presumed to be distributors.

As Howard Bashman notes, the Fifth Circuit's decision directly conflicts with a decision by the Eleventh Circuit a year ago that upheld a very similar Alabama law, which the Supreme Court declined to review. The two decisions, of course, turned on the courts' interpretations of Lawrence v. Texas, and there were two main points of disagreements.

First, the Fifth Circuit rejected the Eleventh Circuit's view that these laws are bans on "commercial sex" -- something the Lawrence majority specifically said its reasoning did not apply to. The Fifth Circuit looked to precedents involving pornography and contraception, where the Supreme Court has repeatedly held that bans on commercial transactions can unconstitutionally burden private, non-commercial use of those products, and that merchants of those products have standing to assert the rights of the consumers. Moreover, the Fifth Circuit noted that the Texas statute could apply to noncommercial exchanges, i.e. lending or gifting.

Second, the Fifth Circuit rejected the Eleventh Circuit's view that it had court's must apply either "strict scrutiny if Lawrence established [the sexual conduct at issue] as a fundamental right or rational basis review if Lawrence did not." The Eleventh Circuit held that no fundamental right was at issue and that the law passed rational-basis review. By contrast, the Fifth Circuit noted that the Lawrence decision did not focus on such a distinction, but instead on "the types of governmental interests that are constitutionally insufficient to sustain a law that infringes on" private sexual conduct. Finding the "morality" interests asserted by the State indistinguishable from those assert in Lawrence -- and rejecting as not rationally related concerns about protecting children and unwilling adults from exposure to sexual devices -- the court held the law invalid.

The en banc Fifth Circuit could reverse this ruling on rehearing -- but if it does not, this circuit split would seem to be headed for the Supreme Court. To date, the Court has studiously avoided taking cases raising the scope of Lawrence. This should be exciting.

In the meantime, as one blogger has put it, it's "Dildos 1, Texas 0." To celebrate the decision, one retailer of "all the best in sexual technology" has announced a "Texas Independence Sale" (Need I say this link is NSFW?).