Fifth Circuit Says Lawrence Extends to Commercial Transactions
A major circuit split has arisen over so-called “sex toy bans.”
To review: An Alabama statute banning the sale (but not the possession) of sex toys survived a long and arduous challenge in the Eleventh Circuit Court of Appeals.* A key holding in that case was that sexual privacy of the kind guaranteed after Lawrence v. Texas** did not extend to commercial transactions. A “right to private consensual sodomy,” the Eleventh Circuit eventually ruled, does not imply a “right to buy or sell a dildo.”
Reviewing a Texas statute imposing essentially the same ban, the Fifth Circuit reaches the exact opposite conclusion:
The case is not about public sex. It is not about controlling commerce in sex. It is about controlling what people do in the privacy of their own homes because the State is morally opposed to a certain type of consensual private intimate conduct. This is an insufficient justification for the statute after Lawrence.
The court is using a reductio ad absurdum argument: What good is a “right to own a sex toy” if the government makes it impossible, or unduly burdensome, to actually acquire one? The court draws a direct analogy to Griswold v. Connecticut***, the landmark predecessor to Lawrence that held that a “right to contraception” must also imply a “right to sell contraception.”
A clear circuit split on a major constitutional question such as substantive due process is an express lane to Supreme Court review. Stay tuned.
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Two more hasty stitches:
1. The majority expressly rejected Texas’ argument that “sexual gratification unrelated to procreation” somehow enjoys less substantive due process protection than “morality based” (i.e., procreative) sex. The read-through to gay marriage bans — which have been repeatedly upheld recently on this specious “procreation is different” rationalization — is clear.
2. Wouldn’t it be nice if, rather than perpetually litigating, re-litigating, appealing, re-appealing, circuit-splitting and certiorari-petitioning the question of what the right to privacy (i.e., sexual substantive due process) does and does not mean, we instead recognized the right of property and simply allowed individuals to buy or rent a plot of land, build or rent a store on it, and sell whatever he pleased, at least to competent consenting adults (i.e., economic substantive due process)?
More thoughts at Rolling Doughnut, Fusionist Libertarian.
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The case is Reliable Consultants v. Earle, No. 06-51067 (5th Cir., February 12, 2008) (PDF – 22 pages).
*Williams v. Morgan, 478 F.3rd 1316 (11th Cir. 2007), cert. denied sub nom Williams v. King, 128 S.Ct. 77 (2007) (PDF – 16 pages). See also Williams v. Pryor, 240 F.3d 944 (11th Cir. 2001) and Williams v. Attorney General, 378 F.3d 1232 (11th Cir. 2004).
**Lawrence v. Texas, 539 U.S. 558 (2003).
***Griswold v. Connecticut, 381 U.S. 479 (1965).
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Police raided a novelty gift shop inside the Layton Hills Mall, seizing 15 boxes of items they said were sexually explicit. The raid happened Tuesday morning just as Spencer Gifts was opening for business. Police said a search warrant was drafted, seeking numerous items that may violate Utah laws on dealing materials harmful to a minor.
…
While none of the items in the shop are illegal, authorities allege Spencer may have run afoul of the state statute by having sexually explicit items available for purchase and display to minors. Police were vague in their descriptions of the items seized but acknowledged seizing games, food items and items that could be described as “sex toys.”
This fact pattern is a bizarre cross between the aforementioned bans on true sex toys and the recent Abercrombie & Fitch faux-obscenity prosecution/persecution — which was also based on an “accessible by juveniles” statute.
The best defense, other than suggesting a revival of economic substantive due process, would be to challenge the Utah statute as unconstitutionally vague: If a reasonable person cannot tell whether edible underwear is criminally “obscene,” then he cannot be prosecuted for displaying it or selling it to minors.
Similar Posts:
- Virginia Case Forces a Revisit of Lawrence
- Does One Incestuous Couple Equal Millions of Gays?
- Another Frivolous State Flag Burning Prosecution
- On Forfeiture and “Positive versus Normative” Contraband
- My Silence is Deafening
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Yeah, it's a high-profile circuit split, but I doubt it's all that likely a cert candidate, legal-realistically. If I recall correctly (I don't have the opinion in front of me right now), the majority said that court-sanctioned or non-court-overruled bans currently only exist in three or four states. Even if you add in the states with bans that have been overturned, you're still not talking about a huge number of potentially questionable statutes. So given the relatively small reach of any decision saying "yes of course we meant what we said in Lawrence" (which would be the correct result), I doubt the Court is likely to wade into this. Especially since there's plenty more cert-worthy non-political circuit splits that the Court doesn't see fit to place on its relatively empty docket. See, e.g., the Booker/Rita/Gall/Kimbrough fall-out.
That said, there's a potentially cert-worthy question on the fed-court-nerdier issue concerning a federal court's invalidation of state statute as facially invalid at the summary judgment stage. That sounds more like the kind of extremely narrow question that might pique the CJ's professed interest in judicial minimalism, if no one else. And which might result in an extremely narrow decision providing little to no guidance to lower courts. Cf. James v. U.S. from last term, which beget Begay (op. forthcoming).
I wonder how vehemently social conservatives will use this to argue about activist judges. I skimmed the conclusion in the ruling, and even to my non-legally-trained mind, it seems the Court rejected an opportunity to explore all the issues raised in the case. Rather than ruling on the First Amendment claim to "make law", the Court said it wasn't necessary because the basic Fourteenth Amendment question settled the dispute. It used the minimum to decide the case properly rather than the maximum.
Hey Kip,
You may or may not get some traffic from this, but I gave you a Hat Tip in my post on the 5th Circuit's decision on the Western Standard's Shotgun blog. You might want to take a look at the discussion. I made the explicit connection between the court's decision to strike down the law and Ron Paul's opinions on Lawrence and the 14th Amendment in general.
'course, the Paulies are going kind of nuts about the post.
Here is a link.
Anyway, just wanted to let you know
. Keep up the good work!
Terrence