5th Circuit Sex Toys Case Inches Closer to Supreme Court

The question whether state laws criminalizing the sale or distribution of sex toys are constitutional drew a step closer to Supreme Court review on August 1 when the 5^th Circuit Court of Appeals denied a petition for rehearing en banc of a panel decision issued on February 12, which had stricken the Texas criminal sex toys statute. Reliable Consultants, Inc. v. Earle, 2008 Westlaw 2941355.

The 2-1 panel ruling in Reliable Consultants, 517 F.3d 738 (5th Cir.2008), was based on an expansive reading of the Supreme Court’s 2003 decision in Lawrence v. Texas, 539 U.S. 558, which had declared that the Texas Homosexual Conduct Act violated the liberty interest of same-sex couples by imposing criminal penalties on private, adult consensual sexual activity. In Lawrence, the Supreme Court said that this "vital liberty interest" could not be abridged based solely on moral disapproval of homosexuality by the Texas legislature, the only justification argued by the state in defense of the statute.

The precedential scope of Lawrence is much contested, and there are widely differing views among the lower federal courts on whether Lawrence was a narrow ruling to be confined to the specific facts of that case, or whether it was a broad ruling establishing a "new" doctrine broadly protecting private consensual sexual activity. In the five years since Lawrence was decided, the Supreme Court has declined every opportunity presented to revisit the question of its precedential scope.

The 3-judge panel in Reliable Consultants found that the state’s stated justification for the criminal penalties on sale or distribution of sex toys was moral disapproval, the ground disapproved in Lawrence for imposition of criminal penalties that burden private consensual sexual acts. The Reliable panel found the analogy of the two cases convincing, pointing to the contraception cases, in which the Court struck down laws criminalizing sale or distribution of contraceptives on the ground that they substantially burdened the ability of individuals to make highly personal decisions about their reproductive activities, while the dissenter argued strongly against that conclusion. The Reliable decision criticized and directly conflicted with a relatively recent ruling by the 11^th Circuit, Williams v. Attorney General of Alabama, 378 F.3d 1232, 1236 (11th Cir.2004), rejecting a similar constitutional attack on an almost-identically-worded Alabama sex toys prohibition.

The petition by Texas for en banc review was treated by the original panel as a petition for rehearing an/or for en banc reconsideration. After first voting to deny rehearing, the panel polled the active judges of the circuit, and determined that there was no majority in support of granting en banc review, but there were several dissenters.

Chief Judge Edith H. Jones, joined by four of her colleagues, issued a brief dissent, noting, among other things, that 5th ircuit rules forbid a panel from overruling a prior decision of the circuit, and that way back in the 1980s the circuit had rejected a constitutional challenge to this very Texas statute. The circuit rule is that unless the Supreme Court has issued a decision that compels a change in the circuit precedent, 3-judge panels of the circuit are bound to abide by the precedent. In the view of Judge Jones and her colleagues, Lawrence did not compel the result urged by the panel majority. Exhibit A for this, of course, was the 11^th Circuit decision holding the other way.

Judge Emilio Garza wrote a separate dissent, much lengthier, in which he took on the whole concept of substantive due process, sharply criticized Lawrence and the abortion decisions, and basically pursued the far-right doctrinal agenda for which he is noted. No surprise to anybody. However, he did make an interesting point in distinguishing the contraception cases from this case, pointing out that under the Texas statute, only sale or distribution are condemned. Texas are free to possess and use sex toys, but they just can’t obtain them in the state. He didn’t think this was such a big burden on their private sexual liberty. What I found particularly annoying, but characteristic of right-wing lower federal court judges, was his assertion without discussion that Lawrence basically means no more than what Justice Scalia said it meant in his dissent. I’m getting very tired of judges relying on Scalia’s hyperbolic characterizations in his Lawrence and Romer dissents as if they were authoritative statements, when they are merely overheated dicta of no precedential weight whatsoever.

Finally, there was an additional very brief dissenting opinion by Judge Jennifer W. Elrod, who, in addition to agreeing with Judge Jones that the panel had violated an established circuit rule for dealing with precedent, also seemed in her cryptic statement to be taking the position that panels should not create circuit splits by contradicting decisions by other circuits. That’s a rather odd idea, given the way precedent and stare decisis work in the federal system and the way the Supreme Court decides whether to take cases for review. If there were no circuit splits, it would be much more difficult to obtain review of an issue. For example, it has proved impossible up to now to get the Supreme Court to review the issue of gays in the military, because so far there has been no circuit split, as all courts of appeals have ultimately concluded that the policy is constitutional. The only exception there is the very recent Witt decision by a 9^th Circuit panel, and it seems highly unlikely that the circuit won’t grant en banc review of that if the government requests it. And, so long as all the circuits are lined up in one direction, it’s unlikely that the Supreme Court will grant review on a controversial and divisive issue.

So, now there is a definite circuit split about the constitutionality of these sex toys laws, leaving it up to the state of Texas to decide whether they want to cling to this ridiculous law so badly that they are willing to chance a Supreme Court review. And, if the Court grants review, it may prove the first opportunity to consider the precedential scope of Lawrence, unless the military case gets there first.

Comments

[Sex Toy Addict]

That's a big problem for sex toy lovers.

[Jaesica Keiwan]

this article is all over the web hoping they'll find other problems aside hating sex toys

[The Sex Toy Guy]

I believe this law was repealed, having been deamed unconstitutional. Although who knows if Texas will appeal. I hope not, they need to put their money in education.

[Art Leonard]

My understanding is that the state decided not to appeal the case further, so the law is presently unenforceable in Texas. I had not heard anything about the legislature actually repealing it.

[sex toys]

This case can be sensitive for other people. I hope this would settle and keep the stores in a more private place.

[Adult Products]

In all honesty, teenage pregnancy and the proliferation of sexually transmitted diseases are of much bigger threat. I just hope that lawmakers would pay more time and attention on them before trying to outlaw sex toys which are only intended to spice up a couple's sexual relationship, or an individual's private pleasuring.

[Art Leonard]

I agree. To my way of thinking, government has no business intervening in the sex trade other than for genuine reasons of public health. For example, if it was shown that a particular sex toy posed a serious threat to the health or safety of its users, I can see a consumer protection role. But apart from that, I think moralistically-based regulations are inconsistent with our dedication to liberty and "the pursuit of happiness" articulated as an inalienable human right in the Declaration of Independence. And I bet that if they had the chance, Ben Franklin and Thomas Jefferson, from the committee that drafted the Declaration, would have happily and eagerly used sex toys! (I have my doubts about one of the other committee members, John Adams, who had a reputation as being very priggish in sexual matters.)