A major circuit split has arisen over so-called ‘sex toy bans.’

To review: An Alabama statute banning the sale (but not the possession) of sex toys survived a long and arduous challenge in the Eleventh Circuit Court of Appeals.*^PDF A key holding in that case was that sexual privacy of the kind guaranteed after Lawrence v. Texas* did not extend to commercial transactions. A ‘right to private consensual sodomy,’ the Eleventh Circuit eventually ruled, does not imply a ‘right to buy or sell a dildo.’

Reviewing a Texas statute imposing essentially the same ban, the Fifth Circuit reaches the exact opposite conclusion:

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 court is using a reductio ad absurdum argument: What good is a ‘right to own a sex toy’ if the government makes it impossible, or unduly burdensome, to actually acquire one? The court draws a direct analogy to Griswold v. Connecticut*, the landmark predecessor to Lawrence that held that a ‘right to contraception’ must also imply a ‘right to sell contraception.’

A clear circuit split on a major constitutional question such as substantive due process is an express lane to Supreme Court review. Stay tuned.

Two more hasty stitches:

1. The majority expressly rejected Texas' argument that ‘sexual gratification unrelated to procreation’ somehow enjoys less substantive due process protection than ‘morality based’ (i.e., procreative) sex. The read-through to gay marriage bans — which have been repeatedly upheld recently on this specious ‘procreation is different’ rationalization — is clear.

2. Wouldn't it be nice if, rather than perpetually litigating, re-litigating, appealing, re-appealing, circuit-splitting and certiorari-petitioning the question of what the right to privacy (i.e., sexual substantive due process) does and does not mean, we instead recognized the right of property and simply allowed individuals to buy or rent a plot of land, build or rent a store on it, and sell whatever he pleased, at least to competent consenting adults (i.e., economic substantive due process)?”

“Police raided a novelty gift shop inside the Layton Hills Mall, seizing 15 boxes of items they said were sexually explicit. The raid happened Tuesday morning just as Spencer Gifts was opening for business. Police said a search warrant was drafted, seeking numerous items that may violate Utah laws on dealing materials harmful to a minor.

On the heels of that landmark ruling, Reliable Consultants Inc. sued Travis County District Attorney Ronnie Earle and Texas Attorney General Greg Abbott in 2004 in U.S. District Court in Austin.

They sought a declaratory judgment prohibiting the enforcement of the statute. Reliable Consultants at the time operated adult-oriented stores in Texas including two Dreamers stores and Le Rouge Boutique in Austin. The plaintiffs were later joined by PHE Inc., which operates an online and mail order adult store called Adam and Eve. The plaintiffs were never prosecuted but argued that because of the law their business was hindered and their customers were deprived of buying sex toys.

Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.

"So what will our august Supreme Court...make of the legality of dildo sales and advertisements? [If this issue makes it to the Supreme Court], "...we say it goes 6 to 3 in favor of dildos."

“The 5th U.S. Circuit Court of Appeals ruled that the Texas law making it illegal to sell or promote obscene devices, punishable by up to two years in jail, violated the Constitution's 14th Amendment on the right to privacy....In its decision Tuesday, the appeals court cited Lawrence and Garner v. Texas, the U.S. Supreme Court's 2003 opinion that struck down bans on consensual sex between gay couples.

‘Just as in Lawrence, the state here wants to use its laws to enforce a public moral code by restricting private intimate conduct,’ the appeals judges wrote. ‘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 after Lawrence.’

The Texas Attorney General's Office, which represented the Travis County district attorney in the case, has not decided whether to appeal, said agency spokesman Tom Kelley.

Phil Harvey, president of Adam & Eve Inc., said the 5th Circuit Court's decision was a big step forward. He said his business plans to expand to sell in stores and at home parties, something company consultants had been fearful to do because of the Texas law.

‘I think it's wonderful, but it does seem to me that since Texas was one of three states in the country -- along with Mississippi and Alabama -- that continued to outlaw the sale of sex toys and vibrators, that it was probably past time,’ Harvey said Wednesday.

Alabama is in the 11th Circuit. But Mississippi, which also is in the 5th Circuit, essentially will have its ban overturned as well, some legal experts said.

Virginia's law barring obscene items is different from other state laws and does not seem to apply to sex toy sales, said Harvey, whose company distributes nationwide. Louisiana, Kansas, Colorado and Georgia had laws barring obscene devices, but courts have since struck them down.

The 5th Circuit Court's decision is encouraging for Sherri Williams, who has been fighting the issue in Alabama for a decade. Williams, who owns Pleasures stores in Alabama, sued in 1998 after state lawmakers banned the sale of sex toys there. A year ago, she lost her fight again when the U.S. Supreme Court refused to consider a lower court decision upholding the Alabama law as constitutional.

Williams hopes that lawmakers will take notice of the recent Texas case and support a newly filed bill in the Alabama Legislature to overturn the ban on adult toy sales.

‘I think the courts are finally listening to the people,’ Williams said Wednesday. ‘You have 'Sex and the City,' 'Desperate Housewives' and other shows promoting what society is doing. I think the courts have finally opened their eyes and looked around, which is a miracle in the South.’”