Five years after the U.S. Supreme Court struck down Texas's anti-sodomy law, a federal appeals court has taken another step toward bringing the state into the 21st century by ruling that it cannot prohibit the sale of sex toys.

An 86-year-old senior judge and a judge appointed by George W. Bush formed perhaps the surprising 2-1 majority of the 5th Circuit Court of Appeals which found the sex toy ban does not meet the constitutional test established in the sodomy statute case.

The state's interest in public morality “cannot constitutionally sustain” the ban after Lawrence v. Texas, Senior Judge Thomas M. Reavley wrote in the majority opinion. “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.”

The decision conflicts with the 11th Circuit, which last year upheld Alabama's equally archaic prohibition on sex toy distribution. “[T]o the extent Lawrence rejects public morality as a legitimate government interest, it invalidates only those laws that target conduct that is both private and non-commercial,” the court said in Williams v. Morgan, 478 F.3d 1316.

But an attorney for the adult novelty store operator that challenged the Texas law was positively euphoric. “It's absolutely everything that we could have ever wanted to develop from Lawrence,” H. Lee Sirkin told Adult Video News.

Reliable Consultants, which owns two Dreamers stores and Le Rouge Boutique in Austin, filed a declaratory relief action in 2004 -– eight months after the Supreme Court decided Lawrence. The Texas law, enacted in 1979, bars the promotion of any device “designed or marketed as useful primarily for the stimulation of human genital organs.”

A trial court judge dismissed the case in March 2006, finding “no constitutionally protected right to promote” sex toys. But in reversing that ruling, Reavley said the right at stake was the same as in Lawrence -- “the individual’s substantive due process right to engage in private intimate conduct of his or her choosing.”

The sex toy law, he concluded, is a burden on that right which the state cannot justify by invoking public morality or the 11th Circuit's distinction between “private sexual conduct” and “public, commercial activity.”

“The case is not about ... controlling commerce in sex,” Reavley, who was joined by Bush appointee Judge Edward C. Prado, wrote. “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.”

In a dissent, Judge Rhesa H. Barksdale clung to the Williams precedent. “The Texas statute regulates, inter alia, the sale of what it defines as obscene devices,” she said. “Obviously, such conduct is both public and commercial.”

By Matthew Heller
2/14/08