I have some of the same reactions as Eugene to the Fifth Circuit's denial of rehearing en banc in the sexual-devices case. The fact that there is now a split between the Fifth Circuit and the Eleventh Circuit on whether a state can ban the commercial promotion of sexual devices (including, without limitation, "dildos" and "artificial vaginas") increases the likelihood the Court will hear the case. Likewise, the fact that seven judges on the Fifth Circuit saw fit to dissent in writing from the denial increases the likelihood cert will be granted. Such a review could be the occasion for some much-needed clarification of Lawrence.
On the other hand, I take more seriously than Eugene the possibility that the Court will simply believe the case is beneath its dignity, or is embarrassing, or does not involve an issue of sufficient importance. Add to that the fact that the circuit split is unlikely to grow since I'm unaware of comparable laws outside the jurisdictions of these two circuit courts (correct me if I'm wrong, I haven't researched the issue). This may simply be an issue for future law school exams.
If the Court does take the case, how might the Court decide it? Lawrence seems to be the main precedent, though the dissents in the Fifth Circuit missed a few others that would have some bearing on the Court's decision. Here are some possibilities for an outcome. These are very preliminary thoughts.
(1) Broad fundamental right; Texas law unconstitutional. The Court could clarify that Lawrence was indeed a fundamental-rights case, contra Judge Garza's views in dissent on the Fifth Circuit. It could then hold that the use of sexual devices by adults in the privacy of the home partakes of that fundamental right: broadly defined, perhaps a right to "adult sexual autonomy." The next step would be to address Judge Garza's argument that the Texas law is untroubling because it does not ban private use or possession, but only "commercial promotion." That distinction, the Court could hold, makes no difference in the Court's case law. It's inconceivable under Griswold, for example, that the Court would uphold a total ban on the sale of contraceptives, while striking down the ban on use. In Eisenstadt v. Baird, which Judge Garza did not cite, the Court struck down a ban on the distribution of contraceptives to unmarried people. By analogy, the Court would not uphold a ban on the sale of newspapers, magazines, films, and books that contain material protected by the First Amendment. Having gotten past the commercial aspect of the case, the Court would then hold that the state's asserted interest in morality is insufficient to sustain a law infringing on the exercise of a fundamental right.
(2) Narrow fundamental right; Texas law constitutional. The Court could hold that while Lawrence recognized a fundamental right, it is a narrow right, a "relational right" (not a general right to adult sexual autonomy) in the sense that it is based on protecting intimate sexual activity that may lead to a more enduring bond between two people. Purchasing a sexual device, which the couple then uses, may enhance sexual pleasure but is too peripheral to the core of the right. The law would then have to be analyzed as a rational-basis case (see #4 below).
(3) Rational-basis review; Texas law unconstitutional. The Court could hold either that Lawrence was a rational-basis case, or was a narrow fundamental rights case (see #2). Either way, a ban on commercial promotion of a sexual device need only be rationally related to a legitimate state interest. But does the state of Texas have a legitimate interest in a total ban on commercial promotion of sexual devices? Justice Scalia, whom lower court judges (including Judge Garza) love to cite as the authority on the meaning of Lawrence, argued that the one unequivocal holding of the decision was that all morals legislation was at an end. No longer could a state walk into court to defend a law, say that "morality" was the only reason for the law, and expect to win. If he's right about that, and even if only rational-basis review applies, then the Texas law should be unconstitutional since the state's only defense of the ban on commercial promotion was morality.
(4) Rational-basis review; Texas law constitutional. The Court could hold that only rational-basis review applies (for the reasons given in #3), but that a morality-based justification is sufficient to uphold the law. The Court could reach this conclusion under an analysis like the one Eugene suggests, whereby the Court holds that some "liberty interests" are more equal than others, that is, more important in the lives of those who exercise them, and that buying and selling sexual devices just isn't very important. For these low-level liberty interests, a morality-based state interest is sufficient.
(5) Sliding scale; Texas law constitutional. The Court could avoid, once again, any definitive application of its usual bifurcated approach to rights in substantive due process cases, and thus avoid clarifying Lawrence. Instead, the Could could engage frankly in the kind of sliding-scale analysis that Eugene suggests it might use: the "importance" of a liberty is "weighed" against the "strength" of the state interests. The analysis could go something like this: Having sex with another consenting adult in the privacy of your home is an important liberty, just like using contraceptives or getting an abortion, which a conclusory morality interest could not outweigh. However, buying and selling (as opposed to using) sexual devices is not a very important interest in the intimate lives of individuals, so even a conclusory morality interest is good enough to sustain a ban.
(6) Sliding scale; Texas law unconstitutional. On the other hand, the Court could say that commercial sale is often a necessary precursor to use, as with contraceptives. And use of sexual devices, like use of contraceptives, is an important aspect of sexual intimacy for some people (especially those with sexual dysfunctions). Given the importance of the personal interest, a mere morality concern by the state is not enough to justify a total ban on commercial promotion.
(7) Or something else entirely.
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Of these, I think #1 and #3 are the most likely outcomes. I doubt the Court will opt for #2 because, while Lawrence does discuss the importance of the conduct to relationships, I doubt that's a substantive limit on the right. It would be very difficult for the Court to decide in future cases what aspects of sexuality do and do not help build relationships. #5 and #6 seem unlikely, but certainly possible, to me. Justice Scalia's recent opinion in Heller, joined by Justice Kennedy, explicitly rejected a balancing approach to protection of Second Amendment rights because such approaches are unusually malleable. #4 looks a lot like #5 and #6, but at least would fit closer to the established framework, and so may be a more likely vehicle for the kind of analysis Eugene predicts.
In any event, if the Court takes the case I'd expect a 5-4 decision, with Justice Kennedy again casting the deciding vote. Maybe that alone makes #7 the most likely outcome of all.
The Court need not opine on the extent to which the use of sexual devices is "an important aspect of sexual intimacy for some people," nor would it have to opine broadly that all morals legislation is impermissible:
It's enough simply to say that there is some liberty interest here, and that the principal state interest -- deterring masturbation and sexual pleasure outside the context of procreation -- is preposterous, an interest unbecoming of a 21st Century state. No need to fit it into any doctrinal box.
(To the extent the state's true interest is, on the other hand, protecting children from exposure to sex-aids advertisements, there are far narrower ways to address that concern.)
Wouldn't Roberts et al be in the same position here? If you're Roberts, Scalia, Thomas, and Alito, do you really believe Kennedy is a reliable vote to reverse and ostensibly narrow Lawrence? If not, why would you risk creating a potentially far reaching precedent to try and save archaic laws that aren't exactly prevalent (or widely enforced) across the country?
If "Bong Hits for Jesus" doesn't stop them, will "Dildoes for Jesus"? Maybe!
Nick
A court finding any otherwise justiciable issue beneath its dignity or too embarrassing would prove empty all those platitudes that proponents of the rule of law have spouted for generations.
Now the law becomes a seamless garment with no flaw unworthy of repair, unless we find it embarrassing. The law is no respecter of persons, except those whose otherwise legitimate controversies we find beneath our dignity or unimportant. Justice must be done though the heavens fall, or we find the subject matter embarrassing.
Shouldn't judges be even more embarrassed to admit that they are so personally squeamish that they can't bear to apply their vaunted principles to cases they feel are yucky? Are they adults, or children?
Maybe putting giant dildoes on highway billboards with language like "most satisfying!" and "strong orgamsic action!" isn't the best thing for family roadtrips. Just a thought.
Alert: Anyone supporting the current restrictions on tobacco advertising might want to take this oppurtunity to avoid embarrassing themselves by stepping away from the keyboard.
Proper result, based on current case law, should probably really be to strike down the sell ban, but not the advertising ban.
The great thing about superficial historicism is that you don't have to make any real argument for your view.
For this argument to work, does there not need to be some sort of freedom of contract, a la Lochner, that is enforced under a Lawrence "rationality with teeth" standard instead of the Footnote Four "anything the legislature does is rational" standard?
I've always thought that freedom of contract was necessary to properly arrive at most of the abortion and contraception decisions, and that these decisions implicitly overturned Footnote Four. After all in our modern economy with its extensive division of labor, if you put an undue burden on making contracts for X, you've probably put an undue burden on the right to X. Most of the abortion and contraception decisions involve sellers of these goods and services, not just the individuals directly partaking of these goods and services to whom these rights are directly attributed. Via some implicit reasoning, which is really just freedom of contract, a constitutional right to X was extended by these cases to include a constitutional right to freely contract for X. The same goes here, unless you think there's no constitutional right involved or you think that making people carve their own dildoes out of wood is not an undue burden.
By the same reasoning, and much more importantly, the right to life under the 5th and 14th Amendments necessarily involves the right to freely contract for medical services.
Does anyone really believe that the FD&C act could be found unconstitutional simply for not covering personal possession/use of small amounts of prescription drugs other than as prescribed, or that the National Bank Act is unconstitutional for not applying to children's penny piggybanks? The law makes a distinction between commerical and non-commercial all the time. Indeed, Lawrence itself made this distinction. What's the constitutional difference between sex toys and prostitution, which Lawrence explicitly found constitutional?
Lawrence made prostition constitutional? I think that would be news to anyone.
But no one has articulated why dildos are immoral or why any state would even want to restrict their sale. I don't believe the bible has anything to say about dildos. Any other basis?
While in some sense I'm sympathetic with your sentiment I don't think you are understanding "beneath its dignity" or "does not involve an issue of sufficient importance" in the relevant manner for this issue. Sure, if the justices refused to take a case because they found dildos too personally embarrassing the think about or were too snooty to hear a case involving certain kinds or people/issues that would be an indefensible breach of their duty.
However, the court has institutional dignity that is distinct from any personal embarassment it's members might face and this institutional dignity is of great importance. Ultimately the court's authority derives solely from the reverence and respect the public grants it. If people were more mature we might not be influenced by what the justices wore or what sort of decorum they kept as long as they took their responsibility seriously. However, as a matter of actual fact people grant respect to those institutions which maintain a certain dignity and tone. If the supreme court justices showed up in jeans and ratty T-shirts for cases the influence of the court would radicly fade to the detriment of the country.
Thus it's reasonable for the Justices to consider how the public will react to a case like this. If the net effect will be to harm the standing of the court by associating it with bad dildo jokes on late night TV that's a valid concern. Similarly if the supreme court doesn't carefully weigh and balance the cases it does take the deciscion it does make won't have the same influence.
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Having said this I think people are overestimating the effect dildos will have on cert being granted. Justices don't think of themselves as different people because they put on black robes. These people all joked in college about sex and maybe even still tell a risque joke or two. I don't think they will be that intimidated by the sex aspect.
However, what they may be dissuaded by is the risk of setting the wrong kind of precedent. Likely no justice is interested in creating a narrow right to sex so many justices might want to wait till they hear a similar case focusing on a somewhat different area.
I know this statute deals with commercial activity only. And if a state can't ban the receipt of cigarettes via UPS, it can't ban the receipt of sexual devices. But if I recall correctly, we had a holding this year or last that it was not enough to have alternative means of exercising a right, each restriction had to be justified on its own. The restrictions on commercial activity relating to pornography arise from its contraband nature; since Lawrence, dildoes are no longer "instrumentalities of crime". Dildo stores can be zoned into submission, but the sales themselves cannot be banned.
If they take it, expect more jokes about Justice Thomas and Coke cans, which will remain legal.
If these kinds of laws are merely "silly," as Thomas suggested, why do states put them on the books or fight to the Supreme Court to protect them? In reality, these laws are only "silly" until you are arrested for violating them and find yourself labeled as a "sex offender."
A glib statement that means nothing.
Traffic laws are hardly moral issues. We could just as easily require people to drive on the left side of the road as the right -- it's an arbitrary decision, albeit a decision that creates order out of chaos. Lying is clearly immoral, but unless done under oath or other specific circumstances, it isn't against the law. Gossiping about another person, showing disrespect to an older person, being a racist, taking off your hat in the presence of a woman, all these are indicators of morals, yet are not regulated by law.
Personal morality are something very different from respecting contracts or regulating the safety of consumer goods. Sexual morals are very different from that as well.
But again, Scipio, I've asked an no one has answered -- what is *immoral* about using dildos or other sex toys? And if nothing is immoral about it, why is it singled out for restriction? There must be some rational basis for restricting their sale, and so far, no one -- not one person -- has come up with a reason why they MUST be restricted by the state. and without a rational basis, the law is unconstitutional. We have the right to buy and sell anything we want -- that is the constitutional presumption.
To turn your argument on its head: just because you like a law isn't a reason to make it constitutional.
One could equally ask what's immoral about feeling happier and more productive when one is working among people of ones own gender, or what's immoral about wearing fur, or (much closer I think to this case) gambling. The fact that you or a judge don't happen either to agree with the ideas or to share either the the emotional attachments a moral decision reflects doesn't make that decision wrong or irrational.
It's understandable that libertarians would oppose morals legislation, but in my view the debate is a political one. The only views judges cn bring to the table are personal beliefs and values which aren't necessarily any better or worse than those of any other citizen. Judges may think their moral views self-evidently right and different views self-evidently wrong, but they are no different in this respect than anyone else. The fact that emotions are felt by a judge doesn't make them more rational than anyone else's.
but you still haven't answered my question: What is it about dildos or other sex toys that is immoral? And how does it help *anyone* to have their sale restricted?
I can even see if a certain sex toy is harmful, but no one has argued that at all. Arguably, anything is harmfull if used too often or incorrectly, so even that argument fails.
Everyone keeps dancing around the question and says, well, morals are subjective, morals are everything, morals can be put into law, who'se morals should prevail -- all questions issues, but none of which address the issue of how sex toys are immoral per se, or in their use.
In the absence of anyone else, I will venture there: There is a vague notion that people who use sex toys are somehow immoral. they are kinky. *Good* people, *nice* people don't use sex toys. Therefore, they should be restricted.
If that's the best you can come up with, then this law is unconstitutional.
That last basis has long precedent, by which English sovereigns banned various leisure activities because they distracted people from martial arts, which were valuable to the state.
Evidence is starting to pile up that internet addiction is s serious problem and hurts social morals -- just look at the NYT internet trolling article.
Accordingly, it's not irrational for a decide to decide that it has a legitimate interest in preventing these types of addictions and, just like anti-gambling legislation, assoicate sexual behavior with ends considered productive. Lawrence held that personal relationships involved transcendal nature etc., but this is a machine, not a personal relationship.
States can enact legislation perceived to deal with small effects that build up cumulatively over time. Otherwise, laws designed to prevent flooding could be struck down on grounds that no specific individual's discharge of water causes any flood. One of the weaknesses of libertarianism, in my view, is their tendency to regard society as simply sum of individual parts, and to conclude that if something can't be shown to affect a specific individual tree, it can have no rational impact on the forest.
This is not to offer an opinion on whether this type of legislation is wise or foolish. But constitutionality is a different matter.
We cannot live in a society whereby a majority of legislators just decide, for no reason at all, that some object cannot be bought, sold or obtained. Such arbitrariness is unconstitutional. If Texas voted that the sale of hats is forbidden for no other reason than the fact that some people like hats a little too much for their taste, such a law would be void for arbitrariness, no?
The ban isn't against the possession or use of sex toys, so trying to make people tell you why the possession or use of them is immoral is kind of beside the point.
Oh, I dunno. Griswold was based on the supposed right of privacy (see, e.g., the Court's invocation of "the sacred precincts of marital bedrooms"). Very few contraceptives are sold in marital bedrooms. When the Court, a few years after Griswold, held in Stanley v. Georgia that the right of privacy included the right to private possession of obscene materials, it still allowed the state to ban the sale, purchase, or distribution of such materials. (Justice Marshall's decision ostensibly was based on the First Amendment, but the overwhelming bulk of his discussion was about privacy, so Stanley is best read as a right-to-privacy decision.)
(Yeah, yeah, I know. All that talk about "sacred precincts of marital bedrooms" was just a pretext Justice Douglas use to get to the result he wanted. I'm arguing as if the words of the opinion, rather than the justices' real objectives, were meant to be taken seriously.)