February 13th, 2008


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.
    "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.