ADF Alliance Alert

Yesterday, a panel issued a 2-1 ruling in Reliable Consultants v. Abbott, No. 06-51067 (5th Cir. Feb. 12, 2008). The opinion is also here.  Excerpts follow:

This case assesses the constitutionality of a Texas statute making it a constitutionality and granted the State’s motion to dismiss for failure to state a claim.  The district court upheld the statute’s constitutionality and granted the State’s motion to dismiss for failure to state a claim. We reverse the judgment and hold that the statute has provisions that violate the Fourteenth Amendment of the U.S. Constitution. crime to promote or sell sexual devices . . .

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. Contrary to the district court’s conclusion, we hold that the Texas law burdens this constitutional right.
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. This conclusion is consistent with the decisions in Carey and Griswold, where the Court held that restricting commercial transactions unconstitutionally burdened the exercise of individual rights. Indeed, under this statute it is even illegal to “lend” or “give” Indeed, under this statute it is even illegal to “lend” or “give” a sexual device to another person.29 This further restricts the exercise of the constitutional right to engage in private intimate conduct in the home free from government intrusion. It also undercuts any argument that the statute only affects public conduct . . .

The State’s primary justifications for the statute are “morality based.” The asserted interests include “discouraging prurient interests in autonomous sex and the pursuit of sexual gratification unrelated to procreation and prohibiting the commercial sale of sex.” These interests in “public morality” cannot constitutionally sustain the statute after Lawrence. [emphasis added] To uphold the statute would be to ignore the holding in Lawrence and allow the government to burden consensual private intimate conduct simply by deeming it morally offensive.

In footnote 33 of the ruling, the 5th circuit expressly rejects a conflicting 11th circuit ruling:

The Eleventh Circuit disagreed in Williams v. Morgan, 478 F.3d 1316 (11th Cir. 2007), cert. denied, Williams v. King, 128 S. Ct. 77 (2007). There, the court held that Alabama’s interest in “public morality” was a constitutional justification for the state’s obscene devices statute. Id. at 1321–24. That fails to recognize the Lawrence holding that public morality cannot justify a law that regulates an individual’s private sexual conduct and does not relate to prostitution, the potential for injury or coercion, or public conduct.

Judge Rhesa Hawkins Barksdale dissent:

For starters, and contrary to the majority’s position, Maj. Opn. at 12-13, the proscribed conduct is not private sexual conduct. Instead, for obscene devices, the statute proscribes only the sale or other promotion (such as advertising) of those devices, including, but not limited to, a dildo or artificial
vagina …

The majority avoids determining what level of scrutiny to apply to the substantive-due-process claim . . . For the reasons stated by the Eleventh Circuit in its analysis of a statute materially identical to the one in issue, I conclude Lawrence declined to employ a fundamental-rights analysis, choosing instead to apply rational-basis review.

The How Appealing blog offers additional commentary on the issue.

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