Texas is one of the few states that continues to prohibit the sale of sex toys. The Texas legislature, in its infinite wisdom, enacted a broad prohibition on the “selling, giving, lending, distributing, or advertising” of “obscene devices.” The law defined “obscene device” as any device “designed or marketed as useful primarily for the stimulation of human genital organs.”

I am happy to report that just in time for Valentine’s Day the Fifth Circuit Court of Appeals struck a blow for individual freedom and struck down the Texas obscene device law! See Reliable Consultants v. Ronnie Earl 517 F.3d 738 (5th Cir. 2008). In doing so, the Fifth applied the much-neglected rule of law laid down by Lawrence v. Texas.

Because of Lawrence, the issue before us is whether the Texas statute impermissibly burdens the individual’s substantive due process right to engage in private intimate conduct of his or her choosing. Contrary to the district court’s conclusion, we hold that the Texas law burdens this constitutional right. An individual who wants to legally use a safe sexual device during private intimate moments alone or with another is unable to legally purchase a device in Texas, which heavily burdens a constitutional right.

Unbelievable! The Fifth really sent Texas to school.

[I]f in Lawrence public morality was an insufficient justification for a law that restricted “adult consensual intimacy in the home,” then public morality also cannot serve as a rational basis for Texas’s statute, which also regulates private sexual intimacy.

The Fifth didn’t even buy the ethically and logically bankrupt “what about the children?” argument.

Perhaps recognizing that public morality is an insufficient justification for the statute after Lawrence, the State asserts that an interest the statute serves is the “protection of minors and unwilling adults from exposure to sexual devices and their advertisement.” It is undeniable that the government has a compelling interest in protecting children from improper sexual expression. However, the State’s generalized concern for children does not justify such a heavy-handed restriction on the exercise of a constitutionally protected individual right. Ultimately, because we can divine no rational connection between the statute and the protection of children, and because the State offers none, we cannot sustain the law under this justification.

It gets better. They trash another common anti-freedom argument:

The alleged governmental interest in protecting “unwilling adults” from exposure to sexual devices is even less convincing. The Court has consistently refused to burden individual rights out of concern for the protection of “unwilling recipients.” Furthermore, this asserted interest bears no rational relation to the restriction on sales of sexual devices because an adult cannot buy a sexual device without making the affirmative decision to visit a store and make the purchase.

Ready for the crescendo?

Just as in Lawrence, the State here wants to use its laws to enforce a public moral code by restricting private intimate conduct. 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.

Sometimes the courts get it right and remind us that we still live in a free country.

Here is a video of Molly Ivins discussing the now defunct Texas law and its absurd results.

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