For mature audiences only

Just imagining a staid, stodgy 5th U.S. Circuit Court of Appeals judge pondering this vital question -- Do Texans have a constitutional right to buy sex toys? --- is enough to make a person cringe or giggle. But that’s exactly the subject matter addressed in the 5th Circuit’s opinion in Reliable Consultants Inc., et al. v. Ronnie Earle, et al. Decades ago, the Texas Legislature decided to make it a crime when it forbid the sale an “obscene device” in §43.21 of the Texas Penal Code. This dastardly crime carries a two-year jail sentence as a maximum punishment. Texas is only one of three states that has such a law. But a Texas business that sells sexual devices challenged that law in a declaratory judgment action in a U.S. District Court in the Western District of Texas. Reliable Consultants alleged the statute violated the substantive liberty rights protected by the 14th Amendment and the commercial free speech rights protected by the First Amendment. But a trial court judge disagreed, finding the law was constitutional. The business appealed the ruling to the 5th Circuit. On Feb. 12, the 5th Circuit reversed and remanded the case to the trial court in a 2-1 decision, finding that the sex toy law violated the 14th Amendment. The 5th Circuit based its decision on the U.S. Supreme Court’s 2003 opinion in Lawrence, et al. v. Texas. That decision overturned another Texas law banning sodomy after a majority on the court found that intimate sexual activity between consenting adults was a liberty protected by substantive due process by the 14th Amendment. “Contrary to the district court’s conclusion, we hold that the Texas law burdens this constitutional right,’’ 5th Circuit Judge Thomas Reavley wrote in an opinion joined by Judge Edward Prado. “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.” Judge Rhesa Barksdale wrote in his concurrence/dissent that he would have granted the plaintiff relief on the First Amendment claim, but not on the 14th Amendment claim. Then Barksdale had to work blue by reciting the exact devices covered by §43.21, which “include, but are not limited to ‘a dildo or artificial vagina.’ ” Those reading this opinion may long for the 5th Circuit to turn its attention back to ERISA disputes and Board of Immigration appeals.
-- John Council