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5th Cir. Strikes Down Texas Law Banning Sale of Sex Toys

A divided federal appeals court has struck down as unconstitutional a Texas obscenity law prohibiting the sale of sex toys.

A panel of the U.S. Court of Appeals for the 5th Circuit ruled 2-1 that the law "impermissibly burdens" a person's substantive due-process right to engage in private intimate conduct without government intrusion.

The majority rejected the state's "morality-based" justification for the statute, saying "these interests in 'public morality' cannot constitutionally sustain the statute."

The government cannot burden consensual, private, intimate conduct "simply by deeming it morally offensive," the panel said.

The dispute involves a 1979 criminal statute banning the sale or promotion of sexual devices. Conviction under the law could result in two years in prison.

Reliable Consultants Inc. operates four retail stores in Texas that sell sexual devices. The company filed suit in the U.S. District Court for the Western District of Texas to enjoin the state from enforcing the law.

Reliable argued that the law violated substantive liberty rights guaranteed by the 14th Amendment and the commercial free-speech rights protected by the First Amendment.

The District Court upheld the law as constitutional and granted the state's motion to dismiss for failure to state a claim.

It said the statute passes muster under the 14th Amendment because citizens have no constitutionally protected right to publicly promote obscene devices. The court also dismissed Reliable's free-speech claim.

On appeal the 5th Circuit rejected the state's argument that the law was designed to protect children and "unwilling adults" from exposure to sexual devices.

"It is undeniable that the government has a compelling interest in protecting children from improper sexual expression," the majority said. "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."

The panel majority, consisting of Judges Thomas Reavley and Edward Prado, faulted the state for attempting to use its own 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," the majority said.

The 5th Circuit declined to rule on the First Amendment issue, saying it might be premature. However, the panel vacated the District Court's dismissal of the claim and said the parties can pursue it on remand.

Judge Rhesa Hawkins Barksdale filed a partial dissent, taking issue with the majority's decision to reinstate the 14th Amendment substantive due-process claim.

She said the standard the majority used in addressing the Texas law's constitutionality was incorrect based on previous cases that dealt with the same issue.

While the earlier decisions had invalidated laws targeting conduct that is both private and noncommercial, the Texas law regulates the sale of what it defines as obscene devices, conduct that is both public and commercial, she said.

Because the law is rationally related to a legitimate state interest, the plaintiff failed to state a substantive due-process claim, she said.

To comment, ask questions or contribute articles, contact West.Andrews.Editor@Thomson.com.

Reliable is represented by H. Louis Sirkin and Jennifer Kinsley of Sirkin, Pinales & Schwartz in Cincinnati.Counsel for the state are Elaine Casas, Jennifer Kraber and Bill Davis in Austin, Texas.