“Rabbit” Hunting in the Supreme Court: The Constitutionality of State Prohibitions of Sex Toy Sales Following Lawrence v. Texas
William Charles Hayes, 44 Ga. L. Rev. 245 (2009)
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This Note, through an analysis of the circuit split between the Fifth and Eleventh Circuits, aims to answer some of the broader questions concerning the role of courts in policing state regulations of sexual conduct. It argues that, despite the broad language of the Lawrence opinion, the Fifth Circuit inappropriately expanded Lawrence in holding unconstitutional the Texas statute banning the sale and distribution of sex toys. In doing so, the Fifth Circuit not only misconstrues the intent and purpose of the Lawrence opinion, but also perpetuates an unsustainable approach to substantive due process that invites constitutionally untenable levels of judicial discretion and policy making. This Note instead supports the Eleventh Circuit’s interpretation of Lawrence in Williams v. Attorney General of Alabama as a means of limiting the Lawrence decision and preserving traditional state authority to democratically police the borders of accepted sexual behavior in preservation of public morality.
