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the right to consensual sex
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.
They rely heavily on two of the most important sex rights cases the Supreme Court has decided:
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."
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.
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:
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.
- "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."
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
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 ![[livejournal.com profile]](https://www.dreamwidth.org/img/external/lj-userinfo.gif){kind=small}
ratatosk for pointing out this decision.
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Uh, just to keep the thread on topic I will chime in: sex toys = good, dumb laws = bad. Yeah.
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But they'll rarely prosecute the girl.
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disclaimer: I'm not a lawyer. I've read & heard this from lawyers, though.
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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.)
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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.
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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.
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Still, I want freedom to come to my home state. What has to happen, legally, to make these Texas precedents become universal?
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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.
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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.
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:D Awesome.
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Was this blatantly illegal? Or was I just completely hallucinating?
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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
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.
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I've also seen billboards advocating breastfeeding here, something I never saw in CA.
Paint me confused...
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How'd you get linked here? *curious*
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*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.
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If I may ask, just what manner of items in question did the state of Texas advocate putting on top of cake, please?
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I'd LOVE to see the cake that could stand up to that baby.
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-- curious Cos
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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.)
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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.
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