The Volokh Conspiracy - Banana split:

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.

***

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.

	[Dale Carpenter, August 2, 2008 at 1:00pm] Trackbacks Banana split: 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. *** 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. Related Posts (on one page): Devices "Useful Primarily for the Stimulation of Human Genital Organs" Going to the Supreme Court? Banana split: Dildoes Going to the Supreme Court? The Fifth Circuit Ban on Sex Devices: Dildoes Going to the Supreme Court?