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Fifth Circuit Strikes Down Texas Sex Toy Ban:

The US Court of Appeals for the Fifth Circuit recently struck down Texas' law banning the sale, lending, or giving away of sex toys. I think that the court was right to conclude that the sex toy ban is unconstitutional under the Supreme Court's decisions in Lawrence v. Texas (which invalidated laws banning both homosexual and heterosexual sodomy), and Griswold v. Connecticut (striking down bans on the sale of contraceptives).

There is an obvious distinction between Lawrence and the sex toys case in so far as anti-sodomy laws are often motivated by hostility to gays; anti-sex toy laws aren't backed by a comparable invidious hostility to a particular social group. However, as the Fifth Circuit opinion notes (pg. 8), the Lawrence decision was deliberately written to avoid basing its reasoning on the anti-homosexual motives behind anti-sodomy laws. Instead, "the [Lawrence] Court explicitly rested its holding on substantive due process, not equal protection. ... [T]he Court concluded that the sodomy law violated the substantive due process right to engage in consensual intimate conduct in the home free from government intrusion."

The Fifth Circuit majority also adds some additional reasons why this case falls under the Lawrence-Griswold paradigm. As it points out, all three cases involve state intrusion on intimate sexual conduct primarily on the grounds of enforcing public "morality." Judge Barksdale in his dissent does a solid job of presenting the opposing view; but I am not convinced. To the majority's arguments, I would only add that the "public health" rationale advanced by the state in Lawrence was actually stronger than that put forward here. Anal sex creates considerably greater risk of STD transmission than does the use of sex toys.

This case creates a circuit split over the issue, since the 11th Circuit upheld Alabama's sex toy ban in Williams v. Attorney General of Alabama, 378 F.3d 1232 (11th Cir. 2004). It will be interesting to see if the Supreme Court takes the case in order to resolve the split.In the meantime, the Fifth Circuit has struck down two of the last four remaining sex toy bans in the country (Texas and Mississippi, both of which are within the Circuit's jurisdiction). Only Alabama and (I am ashamed to say) my own state of Virginia continue to engage in this particularly benighted form of "morals" regulation.

CONFLICT OF INTEREST WATCH: I clerked on the Fifth Circuit back in 2001-2002. However, this case arose long after I left, and my judge was not on the panel.

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