A Circuit Split on Sex Toys - 5th vs. 11th

The 11th Circuit's position that the liberty interest recognized by the Supreme Court in Lawrence v. Texas does not encompass the right of consenting adults to use sex toys has now been challenged by the 5th Circuit in Reliable Consultants, Inc. v. Earle, issued on February 12.  Addressing a statute essentially the same as the Alabama statute upheld by the 11th Circuit in Williams v. Attorney General of Alabama, 378 F.3d 1232 (2004), which the Supreme Court refused to review, the 5th Circuit panel voted 2-1 that the Texas law, which forbids selling, advertising, giving or lending a device marketed for sexual stimulation (unless defendant proves the device was sold, advertised, given or lent for a statutorily approved purpose), impermissibly burdens individual liberty protected by the 14th Amendment.

The important thing about this circuit split is that the 5th Circuit panel actively engages with the 11th Circuit in arguing over the scope of the precedent in Lawrence.  According to the 11th Circuit, Lawrence was a narrow, particularistic holding that the state may not impose criminal penalties on consenting adults for private acts of anal or oral sex, and that the case could not be used to protect a "right to use sex toys."  According to the 5th Circuit, Lawrence is a rather broader holding, that the state may not use the criminal law to interfere with the private sexual activities of adults by depriving them of the ability to sell devices useful in that endeavor. 

In a footnote, Judge Reavley writes for the 5th Circuit:  "The State narrowly describes the right as the court did in Williams v. Attorney General (describing the right as the right to use sex toys).  But this would concoct a right contrary to the holding in Lawrence and evade the Court's ruling."  Reavley cites Judge Barkett's dissenting opinion in Williams on this point.  "Because of Lawrence," wrote Reavley, "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.  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."  [Carey and Griswold were cases involving the distribution of contraceptives.]

Another split between the 11th and 5th Circuits is over the standard of review and the state justification for the statute.  The 11th Circuit held in Williams that the rational basis test would be used to evaluate the statute, and that moral disapproval of sex toys could serve as a rational basis for the statute.  The 5th Circuit, while refusing to take a position on whether Lawrence mandates a higher standard of review, insists that "interests in 'public morality' cannot constitutionally sustain the statute after Lawrence.  To uphold the statute would be to ignore the holding in Lawrence and allow the government to burden consensual private intimate conduct simply by deeming it morally offensive."  After reviewing the Lawrence court's quotation from and reliance upon Justice Stevens' dissent in Bowers v. Hardwick, Reavley wrote, "Thus, 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."

In yet another footnote taking on the 11th Circuit, Reavley writes of that court's use of morality to uphold the Alabama sex toys law as follows: "That fails to recognize the Lawrence holding that public morality cannot justify a law that regulates an individual's private sexual conduct and does not relate to prostitution, the potential for injury or coercion, or public conduct."

The court also rejects the state's alternative justification of protection for children or non-consenting adults.  The court was unwilling to entertain the argument that such a "heavy-handed" criminal statute is needed to protect children from getting hold of sex toys, or to protect adults from unwanted exposure to them.  The court also rejected the argument that commerce in sex toys is somehow akin to prostitution or the "sale of sex," pointing out that the same argument could be made about contraceptives, since they facilitate non-reproductive sex.

"Just as in Lawrence," wrote Reavley, "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."

The dissenter, Judge Rhesa Hawkins Barksdale, argues that the 11th Circuit is correct, but does not expend very much time on the matter.  Barksdale's bottom line is that what the Texas statute regulates is the conduct of selling sexual devices and, "Obviously, such conduct is both public and commercial."

The plaintiffs had also attacked the prohibition on advertising sex toys on First Amendment grounds.  The court refrained from ruling on the First Amendment point, sending it back to the district court.  So the issue for the District Court will be whether, in light of the invalidation of the prohibition on distribution, the prohibition on advertising of a now-lawful product can stand.

If the state of Texas was willing to expend resources on defending this statute in court rather than repealing it, one presumes they will seek en banc rehearing and possibly Supreme Court review.  The court points out that only a handful of states have laws like this on the books - Alabama, Mississippi and Virginia, in addition to Texas.  The Mississippi Supreme Court rejected a challenge to their law.  The 11th Circuit, of course, rejected a challenge to the Alabama law (although it actually struck down a rather less carefully constructed Georgia law).  The court points out that state courts have struck down similar laws in Louisiana, Kansas and Colorado on 14th Amendment grounds.

While the question of sale of sex toys does not loom large as an issue of burning national importance for the Supreme Court to address, a circuit split over the meaning of Lawrence v. Texas as a precedent is significant, since it may bear on other pending controversies, not least the right to marry and the right to serve in the military, currently denied to gay people and under challenge in the courts.

Comments

[WOLFGANG HIRCZY DE MINO]

Very informative and insightful commentary. One nonsubstantive point, though:
Barksdale is a he, not a she, not to mention a West Point graduate.
See: http://www.lb5.uscourts.gov/judgebio/FifthCircuit/

His reference to the other panel members by sex ("my brothers") seems odd. It's not all brethren on the Fifth Circuit now, not to mention the chief judge being female.

("For the foregoing reasons, I concur in vacating the dismissal of the First
Amendment commercial-speech claim (advertising); the dismissal, however, of
the Fourteenth Amendment substantive-due-process claim (sale) should be
upheld. Therefore, I must respectfully dissent from my BROTHERS’
invalidation of the statute on that basis.")(capitalization in the original)

[Art Leonard]

Thanks for the clarification. I couldn't tell that from the name! And since the full name was given, and it struck me as likely female, I hadn't bothered to check the court's website, where I assume the judges' pictures are posted.