Federal Judiciary

Fifth Circuit Strikes Down Texas Sex Toy Ban

By Robert Loblaw

Reliable Consultants, Inc. v. Earle, 06-51067 (5^th Cir., Feb. 12, 2008)

In a major Fourteenth Amendment ruling, a divided panel of the Fifth Circuit has struck down portions of a Texas statute that makes it a crime to sell “obscene devices.” You know what I?m talking about. The majority of Judges Reavley and Prado concludes that the statute suffers the same constitutional infirmities as the Texas anti-sodomy statute, which the Supreme Court struck down in Lawrence v. Texas. Judge Reavley writes:

Just as in Lawrence, the State here wants to use its laws to enforce a public moral code by restricting private intimate conduct. The case is not about public sex. It is not about controlling commerce in sex. It is about controlling what people do in the privacy of their own homes because the State is morally opposed to a certain type of consensual private intimate conduct. This is an insufficient justification for the statute after Lawrence.

Judge Barksdale dissents, arguing that Lawrence addresses purely private behavior, whereas the obscene devices statute targets commercial activity. Drawing on an Eleventh Circuit decision uphoding a similar ban in Alabama, he argues that the statute should only be subject to rational basis review, which it easily passes. Accordingly, he sees no Fourteenth Amendment issue

Full post as published by Decision of the Day on February 12, 2008 (boomark / email).