Legal Commentary

Just in time for Valentine’s Day, a 2-1 majority of the Fifth U.S. Circuit Court of Appeals has struck down a Texas law that banned sales of vibrators and other sex toys. The court found that the law violated the Fourteenth Amendment “substantive due process” rights of Texans “to engage in private intimate conduct without government intrusion.”

The one dissenter, Circuit Judge Rhesa Hawkins Barksdale, wrote that invalidating the statute was unnecessarily “friction-producing” for state-federal relations. Both opinions are available here.

Only three other states have similar laws in force — Mississippi, Alabama and Virginia — and Mississippi’s will evidently be nullified by Tuesday’s ruling since it also falls within the Fifth Circuit. State supreme courts had previously struck down such laws in Louisiana, Kansas, and Colorado.

On the other hand, the neighboring Eleventh U.S. Circuit Court of Appeals upheld Alabama’s law in 2004, even as it related to plaintiffs who had been prescribed such devices by their doctors for health reasons. Tuesday’s ruling therefore creates an arguable conflict among the circuits, at least theoretically teeing up a possible U.S. Supreme Court case.

Since the issue does not appear to have arisen in confirmation hearings, it is unclear where the High Court’s newest members, Chief Justice John Roberts and Associate Justice Samuel Alito, would come down on vibrators. So to speak.