Earlier this year, I noted that the Texas ban on dildoes — yes, it expressly mentions "dildo" — was struck down by the U.S. Court of Appeals for the Fifth Circuit (and just in time for Valentine's Day). The law, the court held, violates Lawrence v. Texas right of "adult consensual sexual intimacy in the home."
On this, the Fifth Circuit panel disagreed with the Eleventh Circuit, which upheld a similar Alabama law last year. I noted that there was a solid split, so there's a decent chance that the U.S. Supreme Court will step in to resolve this (though there's of course no guarantee).
Today, the Fifth Circuit denied rehearing en banc, over the dissent of seven judges; six of them sharply disagreed with the panel decision on the merits, and all seven noted the circuit split. My sense is that this increases still further the chances that the Supreme Court will decide the split is important and worth addressing. The Justices might still see this as a case that's too unimportant practically (as opposed to symbolically and jurisprudentially) and too undignified-sounding factually to hear. But I think that seven circuit judges' belief that this case is jurisprudentially important enough to merit a written dissent from denial of en banc rehearing will increase the chances that the Court will think it's important enough to justify a place on the docket.
So I'll go out on a limb and predict:
(1) The Supreme Court will agree to hear the case.
(2) The Supreme Court will reverse the panel decision and conclude the statute is constitutional.
(3) The vote will be at least 6-3, because even some of the liberals on the Court — I particularly have in mind Justice Breyer — and moderate conservative Justice Kennedy will think that the courts' power to recognize unenumerated rights should be saved for rights (e.g., abortion, contraception, sexual intimacy, parental rights, right to refuse medical treatment, right to live with close family members, and the like) that are more important in most of their exercisers' lives. And this is so even though the government's arguments for the practical benefits of the law seem comparatively weak, or as to the supposed immorality of the conduct, largely conclusory. I think the majority on the Court will conclude that such conclusory moral arguments are adequate except when something more important to most people's lives is at stake (since probably no Justice accepts the libertarian constitutionalist notion that a broadranging liberty to do what one pleases so long as it doesn't directly enough hurt others is itself so important that it should be recognized as a constitutional right).
None of this is to endorse either a narrow or broad view of unenumerated rights; I'm simply trying out my crystal ball here. Please note that it's been notoriously unreliable in the past.
Thanks to How Appealing for the pointer.
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