the right to consensual sex

[cos]

Texas is one of four states that still has a law banning the sale of sex toys.* Or was. This week the 5th Circuit US Court of Appeals struck it down.

"This case assesses the constitutionality of a Texas statute making it a crime to promote or sell sexual devices. The district court upheld the statute's constitutionality [...] We reverse the judgment and hold that the statute has provisions that violate the 14th Amendment of the U.S. Constitution."

* Actually, the law is much worse than that. It bans promotion or possession with intent to promote sex toys, and then defines: "Promote" means to manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmit, publish, distribute, circulate, disseminate, present, exhibit, or advertise, or to offer or agree to do the same.

They rely heavily on two of the most important sex rights cases the Supreme Court has decided:

• Lawrence v. Texas (2003), which legalized consensual private sex, including sodomy and BDSM and gay sex and group sex - anything consenting adults choose to do without intending for it to be public (IOW, a peeping tom doesn't make it "not private").


• Griswold v. Connecticut (1965), which legalized the pill, and the sale & use of contraceptives in general.

They used Lawrence to evaluate the consitutional right in question, and the state's supposed interest in suppressing it, and concluded that "the asserted governmental interests for the law do not meet the applicable constitutional standard announced in 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."

Several times in the ruling, they use the phrase "an insufficient justification for the statute after Lawrence" when referring to each of Texas' justifications for the law, implying that before Lawrence, courts might have given weight to those supposed justifications, but that's all settled now and those justifications (like "morality") no longer fly in suppressing a basic right.

They used Griswold to establish that a ban on public commercial transactions can violate individuals' private rights, and that those who wish to engage in those commercial transactions do have standing to go to court on behalf of their potential customers.

In the landmark 1965 case of Griswold v. Connecticut, which invalidated a ban on the use of contraceptives, the Court recognized that the plaintiff pharmacists "have standing to raise the constitutional rights of the married people with whom they had a professional relationship."

... Griswold, where the Court held that restricting commercial transactions unconstitutionally burdened the exercise of individual rights.

So, Because of Griswold, "the statute must be scrutinized for impermissible burdens on the constitutional rights of those who wish to use sexual devices" - rather than merely the constitutional rights of those who wish to sell them.

Both Griswold and Lawrence were decided based on the Constitutional right to "privacy", a right which is not specifically mentioned in the Constitution but which the Supreme Court has held is implied. It's based on the 9th amendment, which states that just because a right isn't specifically mentioned should never be held to mean that the right does not exist or is not protected, and the 14th Amendment's "due process" clause, which extends most of the Bill of Rights to state governments. We hear a lot about the right to privacy as being associated with the right to end a pregnancy, but it's not just abortion, it's also about the right to have sex. Without a Constitutional right to privacy, we wouldn't have the legal right to:

• Buy, sell, or use condoms or the pill


• Buy, sell, or use vibrators or dildos


• Have oral sex

... and state laws could criminalize any of those things if they chose to.

Texas, Alabama, Mississippi, and Virginia were the only remaining states with laws against selling sex toys. Several other states had such laws but they were struck down by their own state courts. Since Mississippi is also in the 5th Circuit, this decision striking down Texas' probably also invalidates the Mississippi law, leaving just Alabama and Virginia.

Thanks to ratatosk for pointing out this decision.

Comments

[cinnabarine.livejournal.com]

It's pretty ridiculous that this is something that is even brought up in courts and that there are laws regarding. Sheesh.

[cos]

Most sex that people regularly have was technically illegal in many states until Lawrence, just five years ago. In Massachusetts, for example, the only unquestionably legal sex before Lawrence was a married heterosexual couple having intercourse in missionary position. Most of these laws have not been enforced much in recent years, but in some states they were occasionally used selectively, for example to harrass gay people.

[hugh-mannity.livejournal.com]

IIRC, it wasn't all that long ago that it was illegal for a divorced woman to remarry (and then have sex) in Massachusetts.

[eirias.livejournal.com]

This is unrelated, but I love your socks! :)

Uh, just to keep the thread on topic I will chime in: sex toys = good, dumb laws = bad. Yeah.

[cinnabarine.livejournal.com]

I'm probably just propagating an urban legend here, but isn't it possible to commit mutual rape according to Massachusetts law (if both people involved are intoxicated)? Crazy, crazy sex laws.

[kengr]

In many states it's *still* possible if you are underage.
But they'll rarely prosecute the girl.

[cos]

Statutory rape law is a whole other set of weirdness. In most (all?) states, the law is written such that you don't need intent or even knowledge to commit the felony. You could honestly believe that your partner is old enough, and it if they're not, that doesn't matter. Heck, even if *they* are honestly mistaken about their own ago (adopted, with poor records? parent lied?) and it turns out they were underage without knowing it, you've still committed the felony.

disclaimer: I'm not a lawyer. I've read & heard this from lawyers, though.

[sauergeek.livejournal.com]

The MA SJC had severely circumscribed the existing MA laws even before Lawrence. See the entire case history behind Commonwealth v. Ferguson, 384 Mass. 13 (1981). No, I can't find a copy of it freely available online, but the gist of this case and its predecessors is that the MA laws prohibiting various forms of sexual conduct do not apply to that conduct in private, and (now we're specifically dealing with Ferguson) "private" has a rather broader definition than you might think.

[entrope.livejournal.com]

I lived in Texas from 1999 - 1004. During that time, it was fairly easy to find sex toys that were not anatomically correct (i.e., things shaped like bananas or dolphins).

After 2003, even anatomically correct toys started showing up with small labels that said "for medical use only, do not use with unexplained calf pain." Some other stickers in common use said that they were for safe sex demonstration purposes only.

I ordered most of my toys from toys in babeland during that era. Whenever I called and gave them my shipping address, they murmured sympathetically.

Strange but true. You never know what people will manage to do in order to work within the letter-but-not-spirit of the law.

(Very glad to hear that this is finally over. I was always appalled that more people weren't appalled by Texas' weird and draconian sex laws.)

[cos]

I've heard that people buying sex toys at stores in Texas had to sign something saying they were going to use them for approved medical purposes, or something like that?

In this case, the plaintiffs "Reliable and PHE desire to increase their sale of, and advertising for, sexual
devices in Texas, and they fear prosecution under the statute if they do so." So while there were ways to get around the law, it seems it did get in the way by making businesses nervous about expanding or advertising, not knowing how inconspicuous they needed to remain to avoid prosecution.

[yehoshua.livejournal.com]

Educational or medical purposes. e.g., it was legal to own a dildo so one could show an audience how to apply a condom, but if you enjoyed it you were a felon.

I assume you've seen the Molly Ivins joke on youtube, but in case you haven't, it's ten and a half minutes to set up a twenty second long joke. But it makes fun of my favorite Bible-thumping dwarf from Pampa, so it's all good.

[cos]

I heard her tell that one in person, but this video has a lot more fun in it! Thanks.

[jes5199.livejournal.com]

I worked in an adult video + novelty store in Alabama in 2002. We sold sex toys during the ban: the laws were enforced sporadically enough that the owners were willing to risk it.
Still, I want freedom to come to my home state. What has to happen, legally, to make these Texas precedents become universal?

[cos]

The 11th Circuit upheld Alabama's law, so now there's a conflict between the circuits, which means the Supreme Court ought to take it up. I think the 5th is obviously right and the 11th wrong, but Scalia and Thomas were dissenters in Lawrence so if Roberts and Alito really are "in the mold of Scalia" like W promised, that's 4 anti-Lawrence votes on today's court. Too close for comfort.

[marphod.livejournal.com]

By law, the statue in Mississippi is now unenforceable, as well.

Mississippi is in the 5th Circuit as well, so the judgment will apply to their law as well, unless there is a provable fundamental difference in the law.

(That is, until and unless the Supreme Court takes the case. Or the 5th circuit hears the case again, en banc.)

For what its worth, the senior judge was a Carter appointee, and the other 2 sitting judges were Bush appointees, one GWB and one GHWB.

[pseydtonne.livejournal.com]

I am juiced about this decision. Strap one on for great justice!

Griswold v CT is my favorite example of how far we've come yet how far we have to go. Oh, and swear words on juke boxes.

[cinnabarine.livejournal.com]

Strap one on for great justice!

:D Awesome.

[novapsyche.livejournal.com]

The word "privacy", during the time the Constitution was written, denoted a toilet. That is why the term "the right to privacy" never enters that instrument.

[cos]

That wouldn't have stopped them from finding the right words to say it if they'd thought of it. It's not the specific wording of the term that matters.

[novapsyche.livejournal.com]

Oh, I'm not disagreeing with you. I'm just pointing out the fact that documents are themselves beholden to the culture and language at the time they are written, and that those who hold to "literal interpretations" of the Constitution (instead of viewing it as a living document) are mistaken.

[nebel.livejournal.com]

In november, i was in a sex shop in texas. Right off a major highway.... with a sign proclaiming that it existed and that the next exit should be taken for LOVE! it looked just like a sex shop in new jersey... unless i'm going quite mad they sold porn and sex toys and everything else.

Was this blatantly illegal? Or was I just completely hallucinating?

[cos]

I don't know how blatant it was :) Did they ask you to sign anything saying what you were buying was for medical or educational use? Did they decline to directly discuss the use of vibrators and dildos on actual genitals, and instead talk about using them for demos or as massagers?

[nebel.livejournal.com]

I wasn't purchasing them so it didn't come up. We were in for a bachelor party and just bought some porn and other random stuff...so i didn't get a speech during the check out process :) But interesting! i had no idea.

[crista.livejournal.com]

Hi, totally random person who was linked here.

I am the manager and buyer for what is referred to here in Dallas as an 'Adult Novelty Store'. Of course in most other states you'd call it a sex shop, and maybe tomorrow I can as well.

Some items we cannot get in Texas, but for the most part we sell what everyone else would. My guess is, as cos said, they never mentioned the words 'vibrator' or the like, either made you sign a document about how this is needed medically, or at some point used the hated words 'cake topper' or 'novelty massager'.

My store is located in a suburb of Dallas and the ban is not actively enforced unless there is a community complaint. I've been doing this a number of years and have never been so much as ticketed, though that is mostly luck I believe. The store you mention is prolly much like mine. We dance around the edges of the law, but the only people running any real risk are the poor people behind the counter. There is a store I know of not too far from me where when hired you are instructed about how your eventual arrest will go down.

[drstein.livejournal.com]

I was just going to say... I moved to the DFW from the SF Bay Area and I have seen more porn shops and 'adult boutiques' here than I ever did in California. (They were chased out of much of the SF Bay Area for being 'offensive to children' and stuff)

I've also seen billboards advocating breastfeeding here, something I never saw in CA.

Paint me confused...

[cos]

Hi! Thanks for telling us about it. I've been to Texas a few times but never shopped for sex toys there.

How'd you get linked here? *curious*

[crista.livejournal.com]

I'm not from Texas, been here about 3 and a half years and I've got to say I like this place a whole lot more tonight than I did this morning. cumaeansibyl sent me a link earlier.

*phew* I cannot properly express how amazing it is going to be to go into the store in the morning without the worry I was getting arrested by the end of the day.

[leiacat.livejournal.com]

Hi - I'm yet another randomly linked person, and my brain just exploded.

If I may ask, just what manner of items in question did the state of Texas advocate putting on top of cake, please?

[crista.livejournal.com]

Items like this (http://www.adulttoyweb.com/proddetail.asp?prod=DJ027004&cat=107).

I'd LOVE to see the cake that could stand up to that baby.

[cos]

Hi, other randomly linked person! How'd you find your way here?
-- curious Cos

[leiacat.livejournal.com]

Hi, and lovely to meet you!

That is not an easy question. Someone on my flist linked to this post by way of announcing the good news. Since we have a number of people in common and I have a mind like a steel sieve, I'm not actually sure who, but I can try to dig it up if you wish. Or, you can just count me a fellow susboid, which in my experience accounts for just about anyone meeting/knowing just about anyone. (I do not believe we've ever met, but I'm not wholly discounting it, either.)

[cos]

This is when I wish for userpics that'd let me know definitively whether you look familiar to me or not :)

[leiacat.livejournal.com]

I suspect the answer is "no, but we know all the same people" unless you tend to go to cons outside of Boston (because I at least occasionally go to a number of other regional ones but am yet to make it to Arisia), in which case I'm fairly sure we're unlikely to have actually interacted even if we met.

[leiacat.livejournal.com]

The mystery is solved. Despite several far more direct connections, I followed the link from griffen, who in turn found you via supergee whom I don't know, who quotes you via netmouse whom I believe I do vaguely know but not read, who in turn links to you directly.

[cos]

Wow, glad I asked! That was a fun trail to follow.

[folzgold.livejournal.com]

Off topic question:

When you commented over at Conventioneers that you would rather things not be linked off-blog, do you mean that you'd click on an in-blog link, or that you want to see the whole text in the post?

I just want to clarify so that Lindsay, Dan, and I can establish a cohesive, easy to use style.

[cos]

Neither exactly. I meant that even if I like to read something, I'm less likely to read it if it doesn't appear in the main blog. She seemed to imply that she had so many dreams to write that it wouldn't make sense to post all of them on the main blog, so I was just suggesting she'd occasionally post one there.