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"This case assesses the constitutionality of a Texas statute making it a crime to promote or sell sexual devices."

"This case assesses the constitutionality of a Texas statute making it a crime to promote or sell sexual devices." So begins a ruling that a partially divided three-judge panel of the U.S. Court of Appeals for the Fifth Circuit issued today. And, by a vote of 2-1, the appellate court holds that "the statute has provisions that violate the Fourteenth Amendment of the U.S. Constitution."

According to the majority opinion:

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. 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.

In so ruling, the Fifth Circuit's majority opinion reaches a result in conflict with a February 2007 ruling of the U.S. Court of Appeals for the Eleventh Circuit upholding a similar Alabama law. I wrote about that Eleventh Circuit ruling in the March 5, 2007 installment of my "On Appeal" column for law.com, headlined "'Lawrence' Fails to Open Floodgates to Unfettered Sexual Freedom."

Full post as published by How Appealing on February 12, 2008 (boomark / email).