Texas Overturns Ban on Sex Toys

The Fifth Circuit Court of Appeals has tossed a law that made it illegal to sell for promote sex toys.

The 5th U.S. Circuit Court of Appeals ruled that the Texas law making it illegal to sell or promote obscene devices, punishable by as many as two years in jail, violated the right to privacy guaranteed by the 14th Amendment.

The Court's reasoning:

In its decision Tuesday, the appeals court cited Lawrence and Garner v. Texas, the U.S. Supreme Court's 2003 opinion that struck down bans on consensual sex between same-sex couples.

"Just as in Lawrence, the state here wants to use its laws to enforce a public moral code by restricting private intimate conduct," the appeals judges wrote. "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. This is an insufficient justification after Lawrence."

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    It's amazing.... (5.00 / 1) (#6)
    by A DC Wonk on Thu Feb 14, 2008 at 08:39:50 AM EST
    ... that it took a case like Lawrence to finally lead to this one.  Lawrence was the hot-button issue of homosexual sex . . . but here it's merely "a toy" that, presumably, could be used among a husband and wife, or even a person by him/herself.

    (I.e., one would have thought that a case like this would be overturned before a case like Lawrence occurred)

    While I'm a bit hestitant to bring hot-button politics here (and I hope I don't regret this) -- this proves the point that no matter what happens, we have to unite behind whoever the Dem candidate will be.

    Not surprisingly: Scalia, Rehnquist, and Thomas dissented in Lawrence.  No doubt Alito would join them (Roberts taking the place of Rehnquist), and one more GOP appointment, and we can kiss our privacy freedoms goodbye.

    (And I really really hate to mention this, but, Justice Stevens will be close to 89 when the next president takes his/her oath)

    Heh (none / 0) (#7)
    by Steve M on Thu Feb 14, 2008 at 08:46:53 AM EST
    Scalia didn't merely dissent in Lawrence, he acted like it was the worst decision since Dred Scott.

    Then again, when I took Con Law in law school, the decision that repulsed me more than any other was Bowers v. Hardwick.  I guess it just seemed like such a no-brainer.


    same here! (none / 0) (#9)
    by A DC Wonk on Thu Feb 14, 2008 at 09:36:18 AM EST
    I also was blown away by the (to me) obvious wrongheadedness of Bowers, and couldn't understand how anyone but the most biased person, arguing illogically, could come up with that

    Haha (5.00 / 1) (#11)
    by Claw on Thu Feb 14, 2008 at 10:53:00 AM EST
    What I love is the delicious possibility that ConLaw profs in Texas (and elsewhere) may have to discuss this in class.  My poor prof barely got through the obscenity/pornography cases with a straight face.  

    Finally!! (none / 0) (#1)
    by Jgarza on Thu Feb 14, 2008 at 12:56:47 AM EST
    It's funny because they still sell them but they are for "educational" purposes.  Crazy people

    Under the right circumstances (none / 0) (#2)
    by Nowonmai on Thu Feb 14, 2008 at 03:56:42 AM EST
    Just about anything could be a 'sex toy'. The only reason I mention this is I don't feel 'the law' should regulate sexual activities between consenting adults.

    Now we just have to wait for Alabama to follow suit.

    Anything? (none / 0) (#3)
    by Deconstructionist on Thu Feb 14, 2008 at 06:43:47 AM EST
      Please don't elaborate.

    The fruit and vegetable stands.... (none / 0) (#5)
    by kdog on Thu Feb 14, 2008 at 08:33:34 AM EST
    can start selling cucumbers again...that's a relief.

    Funny, kdog.... (none / 0) (#8)
    by dutchfox on Thu Feb 14, 2008 at 09:01:39 AM EST
    I thought that, too. The ER's will have a field day; you'll never want to have marmalade again! smirk

    No. Vegetables are sensual. People are sensuous.  

    Right. "Sensual." That's what l meant. My name is Eric Stratton. They call me Otter.

    My name is Marion. They call me Mrs. Wormer.


    actually, (none / 0) (#4)
    by cpinva on Thu Feb 14, 2008 at 07:14:55 AM EST
    This is an insufficient justification after Lawrence."

    it should have been an insufficient justification well before lawrence.

    nowhere in the federal or any state constitution is the state authorized to regulate the morals of its citizens. that it takes a state or the federal SC to get this point across tells you something of the level of arrogance on display in congress and the state legislatures.

    decon, you'll never look at that gag gift pencil the same way again! :)

    What about hex toys? (none / 0) (#10)
    by Dadler on Thu Feb 14, 2008 at 10:45:22 AM EST
    Is witchcraft still looked down on in Texas?

    Dadler (none / 0) (#14)
    by auntmo on Thu Feb 14, 2008 at 10:59:26 AM EST
    In   Tom  Delay's  ex-district,  probably.   lol

    Thank God (none / 0) (#12)
    by auntmo on Thu Feb 14, 2008 at 10:57:29 AM EST
    This  was quite  embarassing  as   a  longtime  Texan.    

    But  try  to understand:  the   legislature  at  the  time  was  controlled  by  Rove/Delay  Republicans ,  and  the  courts/judges  were quite   rightwing  radical.   Rove  helped  get  most of  them  elected.  

    Don't  forget,   Alberto  Gonzales    was  elected  to   be  on  the  Texas  Supreme  Court  by  the  same  Bush/Rove  political  machine  that  brought him in  as   AG.    He  ALWAYS  ruled  on behalf  of  wingnut  causes  and corporations.   That's  why  they   supported him.  

    Anyway...   this  is  quite  a relief  for  Texans  who  thought  the   wignut  legislature  was  completely  nuts.    

    Sanity   returns.   :)

    Can't win 'em all auntmo.... (none / 0) (#13)
    by kdog on Thu Feb 14, 2008 at 10:59:23 AM EST
    Texas is the only state where peyote is sold legally...so you got that going for ya on the freedom front:)

    kdog (none / 0) (#15)
    by auntmo on Thu Feb 14, 2008 at 11:02:30 AM EST
    LOL    Some  of  us   considered   peyote  just  to  survive  the nutty  Bush/Rove/Gonzales/Enron  years.    But even   my  moderate  Repub  friends, after 8   years  of   President  Flightsuit,  are in  the  "throw  the  bast*ards  out" mode.  

    We're  getting there.......     :)


    Nutty years indeed.... (none / 0) (#18)
    by kdog on Thu Feb 14, 2008 at 12:55:29 PM EST
    I've known the Republicans are no good all my life, took me a little longer to realize the Democrats are no good either, just slightly less repugnant while governing in an equally crooked manner.

    When both parties are either abolished or combined to make room for new ones...then we'll be getting there.  Till then we ain't accomplishing d*ck, imo.


    kdog (none / 0) (#22)
    by auntmo on Thu Feb 14, 2008 at 03:08:25 PM EST
    Fair  enough.   After  19  Dems  in the  Senate    joined  the  Republicans  to give  Bush  everything  he  wanted  in  the FISA  law,   I'm   feeling  the  same  way.  

    And some of  those  guys  were  what  I thought  were  our new  "progressives:"   Jim  Webb, McCaskill,  Whitehouse,  Landrieu.  

    Stunning  wimpiness.


    And you know those guys (Rove, et al) (none / 0) (#16)
    by BernieO on Thu Feb 14, 2008 at 11:21:19 AM EST
    could not have cared less about sex toys. They played the religious right like a fiddle, just like Reagan did. Now the tables have turned and the RR has the Republicans by the balls. Poetic justice?

    Bernie (none / 0) (#17)
    by auntmo on Thu Feb 14, 2008 at 11:34:11 AM EST
    Here's  the  real  irony,  Bernie:   Had  they  been the  least  bit  COMPETENT  in  actually   running  the government,  they wouldn't  be  where  they  are  now.  

    But yes.....quite  the  poetic  justice.  

    As  a  former  English  teacher,   I find  the  last  8  years   QUITE  Shakesperean.  

    There   is  nothing  new  under  the  sun, eh?


    everyone dies at the end? (none / 0) (#20)
    by cpinva on Thu Feb 14, 2008 at 01:31:18 PM EST
    As  a  former  English  teacher,   I find  the  last  8  years   QUITE  Shakesperean.

    in truth, i don't think shakespeare could have conceived the bizarrness that is the texas state government and judiciary.

    maybe if there were ghosts involved................

    Ghosts (none / 0) (#23)
    by auntmo on Thu Feb 14, 2008 at 03:12:35 PM EST
    No  kidding....the only  difference  between  Hamlet's  father  and  Dubya's father,  in terms  of  haunting   each  younger  man,  is  that  Hamlet's   father    WAS  a  ghost.  

    Well,  and  Hamlet    died  before  he  could  trash  his  country.     :):)


    Just in time... (none / 0) (#21)
    by desertswine on Thu Feb 14, 2008 at 03:03:12 PM EST
    for Valentine's Day.

    about damn time (none / 0) (#24)
    by txpublicdefender on Thu Feb 14, 2008 at 04:00:11 PM EST
    I defended a couple of these cases where they prosecuted poor store clerks from stores like "Comdoms to Go" for what?  Not for selling the thing.  They sell them openly.  But, for being honest with the "customer" (who was actually a law enforcement officer with nothing better to do than run a sting on a sex shop in a city with the highest crime rate in the country!) about the fact that the thing was for sex and not just a "novelty" item.  It's basically never been illegal to sell sex toys in Texas, just to have honest discussion about the fact that they're sex toys and not practical jokes.

    long overdue... (none / 0) (#26)
    by pinkmenace on Wed Oct 15, 2008 at 05:34:59 AM EST
    guess this is a long overdue news....and banning sex toys in Texas is now close....