The Volokh Conspiracy - <i>Lawrence v. Texas</i> and Sex Toys:

Jeff Rosen writes in the New Republic about sex laws, and among other things says this:

Kennedy's opinion in Lawrence v. Texas, of course, caused Scalia's head to explode and provoked his alarmist warnings about the impending demise of morals legislation.... [Discussion of the continued upholding of prostitution laws omitted.-EV] Other civil libertarians tried to challenge an Alabama ban on the distribution of sex toys. If there is a constitutional right to engage in private sexual conduct, they argued, there should be a right to use (and buy) sex toys. But, in 2001, a federal appeals court rejected their argument, holding that the state has a legitimate interest in promoting "public morality" — even if that only involves being offended by someone else's private conduct. [I think Rosen is talking about the 2007 decision in the Alabama lawsuit, not the pre-Lawrence 2001 decision.-EV]

It's now obvious, in short, that Scalia's predictions were alarmist. Morals legislation is alive and well.

It struck me as odd, though, that the article omitted the 2008 federal appeals court decision that did strike down a Texas sex toy ban precisely on Lawrence v. Texas grounds. This decision suggests that Scalia's factual predictions "about the impending demise of morals legislation" are not quite as "alarmist" as the article suggests (at least to those who, like Scalia, would find such a demise to be normatively alarming).

Perhaps the Texas decision might be eventually reversed by the appeals court sitting en banc, or by the Supreme Court. But it seems to me it would have been worth mentioning alongside the contrary Alabama decision.

	[Eugene Volokh, April 4, 2008 at 5:35pm] Trackbacks Lawrence v. Texas and Sex Toys: Jeff Rosen writes in the New Republic about sex laws, and among other things says this: Kennedy's opinion in Lawrence v. Texas, of course, caused Scalia's head to explode and provoked his alarmist warnings about the impending demise of morals legislation.... [Discussion of the continued upholding of prostitution laws omitted.-EV] Other civil libertarians tried to challenge an Alabama ban on the distribution of sex toys. If there is a constitutional right to engage in private sexual conduct, they argued, there should be a right to use (and buy) sex toys. But, in 2001, a federal appeals court rejected their argument, holding that the state has a legitimate interest in promoting "public morality" — even if that only involves being offended by someone else's private conduct. [I think Rosen is talking about the 2007 decision in the Alabama lawsuit, not the pre-Lawrence 2001 decision.-EV] It's now obvious, in short, that Scalia's predictions were alarmist. Morals legislation is alive and well. It struck me as odd, though, that the article omitted the 2008 federal appeals court decision that did strike down a Texas sex toy ban precisely on Lawrence v. Texas grounds. This decision suggests that Scalia's factual predictions "about the impending demise of morals legislation" are not quite as "alarmist" as the article suggests (at least to those who, like Scalia, would find such a demise to be normatively alarming). Perhaps the Texas decision might be eventually reversed by the appeals court sitting en banc, or by the Supreme Court. But it seems to me it would have been worth mentioning alongside the contrary Alabama decision.