A homeowner has filed an unusual free-speech case that pits swingers' rights against the heavy-handed morality of a Dallas suburb which has banned “sex clubs” in private homes even if they are not operated as a business.

The city of Duncanville (population: 36,000) enacted its sex club ordinance last month after receiving complaints from neighbors about the weekend parties at Jim Trulock's split-level home which he hosts for up to 100 members of his “Cherry Pit” swinger's club.

The ordinance declares the “operation and maintenance of a sex club” unlawful and a “public nuisance per se.” Trulock, who has already been cited twice for violations, filed suit last week for a court injunction on enforcement of the law as overbroad, vague and an infringement on the right of adults to engage in private sexual conduct.

“The Ordinance, as written, criminalizes the behavior of a substantial portion of the population of Duncanville who seek to engage in sexual activity,” the petition says.

Duncanville officials insist they are not trying to regulate morality, but a rogue homeowner who is operating a live sex act business. “It's not trying to judge anyone or pass judgment on someone's lifestyle,” spokeswoman Tonya Lewis said.

The ordinance is modeled after a Phoenix law which applies to “any [sexually-oriented] business in which one or more persons may view, or may participate in, a live sex act for a consideration” and which survived a constitutional challenge in State v. Mutschler, 65 P.2d 469 (2003).

Whether "The Cherry Pit” is a business is a matter of dispute. Trulock says he only accepts voluntary “donations” to cover the cost of food and refreshment.

"We are a group of like-minded friends who enjoy living the Swinging Lifestyle," says "The Cherry Pit's" website.

But Duncanville has gone a crucial step further than Phoenix by defining a sex club as

Any premises, person or organization that ... provides permission, an opportunity or an invitation to engage in or to view sexual activity, stimulation or gratification, whether for consideration or not.

Trulock attorney Edward B. Klein of Carrollton, Texas, believes the inclusion of the words “or not” makes the Duncanville law so overbroad that “a husband and wife having consensual sex in their home” could face prosecution.

Phoenix's law specifically targeted licensed sexually-oriented businesses that charged customers to watch live sex acts. The true motivation behind the Duncanville ordinance, Klein says, is to “push Jim Trulock out of Duncanville. They want him out of town.”

Even if Duncanville can defend the scope of its ordinance, it still is unlikely to show that its interest in prohibiting sex clubs outweighs the liberty interest in private sexual conduct established by the U.S. Supreme Court in Lawrence v. Texas, 539 U.S. 558 (2003).

Duncanville promotes itself as “The Perfect Blend of Family, Community and Business.” Another ordinance regulates sexually-oriented businesses, but there are no such businesses in the city.

By Matthew Heller
12/16/07