Texas Strikes Down Ban on Sex Toys
U.S. Court Says 35-Year Law Against Sex Devices is Unconstitutional
On Thursday, February 14, the 5th U.S. Circuit Court of Appeals, a federal court with jurisdiction over district courts in three southern states, overturned a Texas law prohibiting the sale or promotion of “sexual devices.” It had been one of the last states to enforce laws prohibiting the sale or marketing of adult novelties. The three-judge panel overruled the ban 2-1 on the basis that it violates an individual’s right to privacy guaranteed by the 14th Amendment of the U.S. Constitution.
A Precedent for Censorship
Trends to regulate public morality began in the late nineteenth century and continued during the twentieth; in the early 1970’s, alarmed legislators reacted to the sexual revolution then sweeping the country by enacting numerous anti-obscenity statutes. Texas’ law at first referred only to banning “obscene material,” but in 1979, legislators honed the language to prohibit selling, distributing, promoting or lending “obscene devices,” defined as those “designed or marketed as useful primarily for the stimulation of human genital organs.”
Do Regional Laws Still Apply?
With today’s instant access to products and information via the Internet, regional laws against selling materials thought to be immoral seem virtually obsolete; the Texas statute seemed ripe for a legal challenge. Reliable Consultants, Inc., the owner of four sex toys stores in Texas, and the online sex toy distributor Adam & Eve brought the suit to overturn the law and begin selling sex toys in Texas without fear of prosecution. The plaintiffs argued that “many people in Texas, both married and unmarried, use sexual devices as an aspect of their sexual experiences” as well as for therapeutic reasons.
The prosecution, led by District Attorney Ronnie Earle, argued that sex shops that “distribute sexual devices for profit cannot assert the individual rights of their customers” and are not protected by the 14th Amendment. In a brief filed with the court, Earle also claimed the state had an interest in the morality of its citizens. As a governing body of the people of Texas, the law is necessary for “discouraging prurient interests in autonomous sex and the pursuit of sexual gratification unrelated to procreation.” In other words, it was Texas’ duty to prevent masturbation and sex outside of marriage.
The Court disagreed, citing the landmark 2003 Supreme Court case Lawrence v. Texas. In that case, the U.S. Supreme Court overturned a Texas law against consensual sodomy citing an individual’s right to engage in private sexual activity in one’s own home free from government intrusion. “The fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice,” wrote Justice John Paul Stevens in the majority opinion.
Writing for the 5th Circuit Court, the judges concurred. “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.”
Now, only three states have a similar sex toy statute on the books: Mississippi, Alabama, and Virginia. As the 5th Circuit Court’s jurisdiction also covers Mississippi, that law is likely to suffer the same fate as Texas’.
Sources:
The United States Court of Appeals for the Fifth Circuit, Reliable Consultants Inc. and PHE Inc. v. Earle, February 12, 2008.
Angela K. Brown, “Texas Ban on Sex Toys is Overturned,” Associated Press, February 14, 2008.
Steven Kreytak, “Court Overturns Texas Ban on Sex Toys,” Austin American-Statesman, February 14, 2008.
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