BY ARTHUR S. LEONARD | The Houston-based US 5th Circuit Court of Appeals ruled on February 12 that a Texas statute, making it a crime to distribute sex toys in that state, violates the federal Constitution. Relying heavily on the Supreme Court's 2003 decision in Lawrence v. Texas, striking down that state's anti-gay sodomy law, the court stated specific disagreement with contrary rulings by the Atlanta-based 11th Circuit Court of Appeals, which upheld a similar Alabama law.
The split of opinion between the circuit courts enhances the possibility that the US Supreme Court will have to take up the question whether Lawrence recognized broad protection for the private sex lives of adults that cannot be burdened by such criminal provisions.
Appellate split over sale bans makes Supremes Court review more likely
The appellate panel's 2-1 decision in Reliable Consultants, Inc. v. Earle approved the challenge to the Texas statute that forbids “selling, advertising, giving or lending a device marketed for sexual stimulation” unless the defendant proves the device was distributed for purposes approved by law. The panel found that the law impermissibly burdens individual liberty protected by the 14th Amendment's due process clause.
The law being challenged does not forbid private use of sex toys.
“Because of Lawrence, the issue before us is whether the Texas statute impermissibly burdens the individual's substantive due process right to engage in private intimate conduct of his or her choosing,” wrote Judge Thomas M. Reavley for the majority. “Contrary to the district court's conclusion, we hold that the Texas law burdens this constitutional right. An individual who wants to legally use a safe sexual device during private intimate moments alone or with another is unable to legally purchase a device in Texas, which heavily burdens a constitutional right.”
Reavley then cited US Supreme Court rulings in Carey and Griswold, involving the sale of contraceptives and dating to 1977 and 1965, respectively: “This conclusion is consistent with the decisions in Carey and Griswold, where the Court held that restricting commercial transactions unconstitutionally burdened the exercise of individual rights.”
In coming to different conclusions, the two circuit courts are also split over the appropriate standard to use in reviewing the states' justification for their statutes. The 11th Circuit applied the relatively undemanding “rational basis test,” finding that the Legislature's moral disapproval of sex toys provided such a rational defense of the law.
The 5th Circuit took no position on whether the 2003 sodomy ruling requires states to provide a more compelling rationale, but insisted that “interests in 'public morality' cannot constitutionally sustain the statute after Lawrence,” which specifically ruled out moral offense as legitimate grounds for banning private intimate consensual conduct.
“If in Lawrence public morality was an insufficient justification for a law that restricted 'adult consensual intimacy in the home,' then public morality also cannot serve as a rational basis for Texas's statute, which also regulates private sexual intimacy,” Reavley wrote.
On this point, Reavley appended one of several footnotes in which he specifically challenged the 11th Circuit ruling out of Atlanta.
The Houston court also rejected the state's alternative arguments that the law was needed to protect children from getting their hands on sex toys and shield adults from unwanted exposure to them. The panel's majority also dismissed the claim that distributing such toys was akin to prostitution, in that it involved the “sale of sex,” noting that the same could be said of commerce in contraceptives.
The dissenting judge, Rhesa Hawkins Barksdale, argued that Atlanta's 11th Circuit was correct, but his bottom line was that the Texas law focused on the sale of sex toys, conduct that he said was “obviously… both public and commercial.” He did not address the majority's thrust that the law unconstitutionally burdened libertyinterests indirectly by penalizing private conduct.
The court did not rule on the plaintiff 's challenge to the bar on advertising sex toys, and the district court must now decide whether that ban can stand regarding a product whose sale has now been found constitutionally protected.
The Supreme Court last year refused to review the Alabama sex toys case, but with a split between circuits, an appeal by Texas could bring the matter before it. As Reavley noted, only Alabama, Mississippi, and Virginia, in addition to Texas, still have sex toy sale bans on their books. The Mississippi Supreme Court recently rejected a challenge to the law there, but the 11th Circuit, which upheld the Alabama law, struck down a less carefully constructed statute in Georgia. Reavley also pointed out thatstate courts have recently voided similar laws in Louisiana, Kansas, and Colorado on the same 14th Amendment liberty grounds.
The sale of sex toys is clearly not a burning issue, but if the matter goes to the Supreme Court, it is not without potential significance, since the precedential meaning of Lawrence v. Texas bears on other pending controversies, not least the right to marry, the constitutionality of the Defense of Marriage Act, and the right to serve in the military.
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