U.S. Supreme Court may have the opportunity to consider sex toys ban
On August 1st, the U.S. Court of Appeals for the 5th Circuit issued a ruling in Reliable Consultants v. Abbott, No. 06-51067 (5th Cir. Aug. 1, 2008) denying rehearing en banc and thereby upholding its previous ruling which found a Texas ban on the promotion or sale of “sex toys” to be unconstitutional. (Via How Appealing).
As we noted at the time, the February ruling created a circuit split between the 5th and 11th circuits. In Williams v. Morgan 478 F.3d 1316 (11th Cir. 2007) the 11th Circuit upheld an Alabama law “prohibiting the commercial distribution of devices primarily for the stimulation of human genital organs.” In the February Community Defense Reporter, we wrote:
The 5th Circuit finds itself in opposition to the 11th Circuit over the application of Lawrence v. Texas 539 U.S. 558 (2003). The basic question is whether Lawrence found a fundamental constitutional right of “private intimate sexual conduct” and, subsequently, whether regulations on the sale of “sex toys” constitute an impermissible burden on that right. According to the 5th Circuit, Lawrence describes the “contours of the substantial due process right to sexual intimacy,” regulation of which must survive the standard of strict scrutiny. (…)
However, according to the 11th Circuit opinion in Williams v. Morgan, 378 F.3d 1232 (2004) no such analysis was performed in Lawrence and, therefore, the fundamental question regarding the sale of “sex toys” is whether such a commercial enterprise (advertising for which could be viewed by children) violates a substantial state interest
According to Eugene Volokh, there’s a good chance the U.S. Supreme Court will step in to resolve split:
My sense is that this increases still further the chances that the Supreme Court will decide the split is important and worth addressing. The Justices might still see this as a case that’s too unimportant practically (as opposed to symbolically and jurisprudentially) and too undignified-sounding factually to hear. But I think that seven circuit judges’ belief that this case is jurisprudentially important enough to merit a written dissent from denial of en banc rehearing will increase the chances that the Court will think it’s important enough to justify a place on the docket.
Related Posts (Alliance Alert):
5th Circuit strikes Texas law prohibiting sale of sexual devices, ruling may create circuit conflict
Texas Ban on Sex Toy Sales Is Overturned
(CDR):
Williams v. Morgan No. 06-11892 (11th Cir. Feb. 14, 2007)
Reliable Consultants v. Earle 2008 WL 383034 (5th Cir. Feb. 12, 2008)
Williams v. Attorney General of Ala., No. 02-16135 (11th Cir. July 28, 2004) (pdf)
Banana Split - The Volokh Conspiracy, Dale Carpenter, 8.2.08
Fifth Circuit Strikes Down Texas Sex Toy Ban - The Volokh Conpsiracy, Ilya Somin, 2.17.08
The Fifth Circuit Ban on Sex Devices - The Volokh Conspiracy, David Kopel, 2.13.08
Law Reviews:
Substantive Due Process: Sex Toys After Lawrence
Michael J. Hooi, 60 Fla. L. Rev. 507 (2008)
UPDATE:
More from the Split Circuits blog