Monday, August 4, 2008

Sexual device ban to Supreme Court?

Back in February, a panel of the Fifth Circuit invalidated Texas's criminal ban on the sale of sexual devices (PDF). On August 1, a majority of the Fifth Circuit's 17 active judges voted not to rehear the case en banc (PDF), over the votes of seven dissenters. (One of these, Bush appointee Emilio Garza, called into question not only Lawrence v. Texas but forty years of privacy jurisprudence. Garza has often appeared on conservative Supreme Court shortlists.) The decision stands, in direct conflict to a decision of the Eleventh Circuit upholding a similar Alabama law. Given this split, a Supreme Court petition is likely. Will the Court hear the case? And if so, how will it decide?

The case turns, of course, on the scope of the Court's holding in Lawrence v. Texas. Lawrence was 6-3, and five of those six remain on the Court. O'Connor was of course replaced by Alito, who (I think it's safe to say) could be expected to vote to uphold the Texas law. Eugene Volokh has predicted that the Court will take the case and reverse, upholding the law. Dale Carpenter has a different take, noting that the Court may "simply believe the case is beneath its dignity, or is embarrassing, or does not involve an issue of sufficient importance," but guessing that if it took the case it would affirm 5-4. Both note possible grounds for distinguishing Lawrence: the relative importance of the implicated activity in people's lives, and in particular its role in intimate relationships. Assuming Kennedy's vote would decide the case, these certainly sound to me like they could be central factors.

On that basis, I'd suggest that both the likelihood of a grant of certiorari and the likelihood of affirmance would be significantly enhanced to the extent that the case can be framed as being about the right of persons with disabilities to achieve sexual intimacy with their partners, rather than about "the right to sex toys." There is a very strong case to be made that access to sexual devices is of great importance to people with a wide variety of disabilities -- from erectile dysfunction to limited mobility -- in achieving sexual intimacy in relationships. Framing the case in this way makes it very difficult to distinguish from Lawrence. (Indeed, the only relevant distinction noted by the judges who have favored upholding these laws is the commercial element- that it is selling the devices that is illegal, not using them - and the Court has already rejected a similar approach in the area of birth control.)

This concern was part of the Fifth Circuit's reasoning, as it was in state supreme court decisions striking down similar laws, but these decisions mainly focused on the general interest in sexual privacy, the degree of protection granted to that general right, and the state's interest in banning sex toys. While these broad principles should be sufficient, Lawrence strongly suggests that a focus on intimate relationships makes the strongest case, particularly for Kennedy. The right to use sex toys, in and of itself, seems to some as frivolous, and beneath the dignity of constitutional protection, as a "fundamental right to homosexual sodomy." The advantage of the device case is that since the law regulates and is challenged by sellers, who are asserting the rights of their buyers, focused arguments about the special harms to a class of affected persons can readily be made by any vendor; there is no need to find the factually perfect case.

To the extent possible on the existing record, the plaintiffs in this case should attempt to focus their case before the Supreme Court on the rights of persons with disabilities in the context of intimate relationships. Perhaps more importantly, the case could be helped by amici representing persons with various kinds of disabilities, or perhaps by medical associations.

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