Promoting Intimacy and Positive, Healthy, Consenting Adult Sexuality

February 2008
5th Circuit UPHOLDS Lawrence vs. Texas regarding sale of sex toys but may be appealed and result in a major Lawrence case fight.

This could set the stage for a new Lawrence vs. Texas Supreme Court battle on in private consenting adult privacy rights.
Lawrence vs. Texas arguments are now in jeopardy with the new "Bush" court and if McCain gets to appoint new Justices it will be the end of hope for fighting current laws on a Constitutional basis for the sexual freedoms we are denied in the U.S., that most of the rest of the world enjoys. As I have written extensively about the landmark Lawrence vs Texas case is our hope for in private individual sexual freedoms in the U.S.

In my opinion Lawrence vs. Texas is just as important in the sexwork industry as the Row v Wade where abortion is the right of a women to decide up until about 28 weeks when the fetus becomes "viable". McCain and Huck, of course have stated they want to see this right taken away and will either appoint Supreme's that will overturn it or pass the "Human Life" Amendment to force women to have unwanted children and us to pay for it via welfare.

Biblically of course their is no soul till birth and nothing biblically wrong about abortion - the typical ignorance of Christians imposing their non biblical morality just as they do with prostitution which was never wrong (common prostitutes) in the bible.

But for sexwork the key issue to argue their is no compelling government issue requiring limits on commercial sex for in private consenting adults. But sadly most when they think of "prostitution" or "commercial sex" only think of the drugged out public nuisance street hooker. But Lawrence vs Texas is only about PRIVATE sexuality but many folks argue all sexwork is exploitive and no women would choose it if she has free will - the typical feminist anti sex crap that of course is foolish and just wrong.

The current case coming out of Texas is about sex toys but it could wind up being an individual right case using Lawrence vs Texas arguments. But one key argument is if Lawrence vs Texas applies to commercial sex acts (such as selling sex toys...which would also seem to apply to private consenting adult prostitution.

If Lawrence vs. Texas is upheld in this regard and that "morality is not a legitimate basis for laws" this could invalidate all in private consenting adult prostitution laws in the U.S. But of course the "Bush" Supreme's could change result of the prior victory and of course McCain type judges would probably end all hope.

Court overturns Texas ban on sex toys
Federal appeals court says law violates constitutional right to privacy.

AMERICAN-STATESMAN Thursday, February 14, 2008
A federal appeals court has struck down a Texas law that makes it a crime to promote or sell sex toys. "Whatever one might think or believe about the use of these devices," said an opinion written by Justice Thomas M. Reavley of the 5th U.S. Circuit Court of Appeals in New Orleans, "government interference with their personal and private use violates the Constitution."

Under Texas law it is illegal to sell, advertise, give or lend obscene devices, defined as a device used primarily for sexual stimulation. Anyone in possession of six or more sexual devices is considered to be promoting them.

The Texas law dates back to the 1970s and is seldom enforced. Travis County prosecutors say that they haven't charged anyone with a sexual device-related crime in at least the past seven years, and probably much longer. In 2003, a woman in the Fort Worth suburb of Burleson drew nationwide attention when she was arrested for selling erotic toys at a Tupperware-type party. The charges against Joanne Webb were later dropped.

In addition to Texas, whose law has survived previous state court challenges, three other states have a similar sex toys statute: Mississippi, Alabama and Virginia. Laws in Louisiana, Kansas, Colorado and Georgia have been thrown out by courts in recent years.

The 2-1 opinion by a panel of the 5th Circuit was based heavily on the U.S. Supreme Court's 2003 decision in Lawrence and Garner v. Texas, which struck down a Texas law prohibiting private consensual sex among people of the same sex. That case established a broad constitutional right to sexual privacy.

On the heels of that landmark ruling, Reliable Consultants Inc. sued Travis County District Attorney Ronnie Earle and Texas Attorney General Greg Abbott in 2004 in U.S. District Court in Austin. They sought a declaratory judgment prohibiting the enforcement of the statute. Reliable Consultants at the time operated adult-oriented stores in Texas including two Dreamers stores and Le Rouge Boutique in Austin. The plaintiffs were later joined by PHE Inc., which operates an online and mail order adult store called Adam and Eve. The plaintiffs were never prosecuted but argued that because of the law their business was hindered and their customers were deprived of buying sex toys.

U.S. District Judge Lee Yeakel in Austin dismissed the lawsuit after finding that there is no constitutionally protected right to publicly promote obscene devices.

On appeal, lawyers for the State of Texas, which had replaced Abbott as a defendant, argued that the Lawrence case invalidates laws that target private conduct but not laws prohibiting any commercial conduct. Justice Rhesa H. Barksdale agreed with that logic in his dissent.

The state also argued in a brief that Texas has legitimate "morality based" reasons for the laws, which include "discouraging prurient interests in autonomous sex and the pursuit of sexual gratification unrelated to procreation."

A spokesman for Abbott, who filed the brief for the state and for Earle in court, declined to comment. They can ask for review of the case by the entire court, appeal to the U.S. Supreme Court or allow the case to return to Austin, where Yeakel would likely enter an order that would end enforcement of the law.

Jennifer Kinsley, a Cincinnati-based lawyer for Reliable Consultants, whose firm represents adult businesses nationwide, applauded the court's ruling and said it would aid her clients and their customers. "We believe that the rights of ordinary people are being violated by this law, and we are very happy this no longer is valid," Kinsley said.
Dave comments - in U.S. Court of Appeals appeal however the State tries to make a distinction between selling sex toys and selling sex:

The State argues that if this statute, which proscribes the distribution of
sexual devices, is struck down, it is equivalent to extending substantive due
process protection to the “commercial sale of sex.” Not so. The sale of a device
that an individual may choose to use during intimate conduct with a partner in
the home is not the “sale of sex” (prostitution). Following the State’s logic, the
sale of contraceptives would be equivalent to the sale of sex because
contraceptives are intended to be used for the pursuit of sexual gratification
unrelated to procreation. This argument cannot be accepted as a justification
to limit the sale of contraceptives. The comparison highlights why the focus of
our analysis is on the burden the statute puts on the individual’s right to make
private decisions about consensual intimate conduct. Furthermore, there are
justifications for criminalizing prostitution other than public morality, including
promoting public safety and preventing injury and coercion.

Just as in Lawrence, the State here wants to use its laws to enforce a
public moral code by restricting private intimate conduct. The case is not about
public sex. (again thinking prostitution is about public street hookers) It is not
about controlling commerce in sex. It is about controlling
what people do in the privacy of their own homes (as is private prostitution) because the State is morally
opposed to a certain type of consensual private intimate conduct. This is an
insufficient justification for the statute after Lawrence.

Dave notes - Street hookers vs. private prostitution
As usual this confuses street hookers with private consenting adult prostitution. I would argue this is NOT a legitimate reason to continue the criminalization of private consenting adult prostitution! Their are plenty of laws against kidnapping, "extreme trafficking" and sex crimes to adequately deal with this issue without criminalizing the 90% who are in private consenting adult "prostitutes".

The States argument goes on to say that it is not about public sex like in prostitution as most see it. Again confusing public nuisance street hookers with private sexwork.

The full 22 page Appeal is at
Good Discussion Board comments:
Finally, a judge with some common sense!
There was another recent case concerning a challenge to a Minnesota law that prohibited massage therapists from dating former clients for 2 years after the end of the professional relationship.
I think these cases will eventually lead to a case ruling that laws banning private consensual pay for play between two adults are unconstitutional.
Yeah, but it was the 5th Circuit, so it was 2-1 (Judge Barksdale dissenting) and as it conflicts with an opinion with the 11th Circuit, the S. Ct. could take the case up. And while this would be a reach, they could use it to overrule Lawrence v. Texas. No tellin' what those assholes in DC will do now with Alito and Roberts on the Court.
Tex, I'm not familiar enough with the cases involved so could you briefly explain how the Supreme Court could use this case to overrule Lawrence v. Texas? The way I read it, it only strengthens Lawrence v. Texas. Thanks.

Also, it seems to me that the trend is heading towards prostitution laws someday being held unconstitutional under Lawrence v. Texas?

Quoting part of the news on the Mn Case:
The ACLU-MN believes that the statute violates the constitutional right to engage in intimate associations. In Lawrence v. Texas, the U.S. Supreme Court re-affirmed the notion that adults have a due process liberty interest in "deciding how to conduct their private lives in matters pertaining to sex", 539 U.S. 558, at 572. A governmental deprivation of this fundamental right is only permissible if it serves a compelling government interest. Although the Lawrence court recognized that the government has a stronger interest in intimate associations involving "persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused", the Minnesota law at issue goes too far by imposing a two-year ban on consensual relationships between alternative health care practitioners and their former clients. The law does not impose the same two-year ban on physicians, physician assistants, physical therapists, acupuncture practitioners, or midwives. It is unclear what compelling state interest justifies holding alternative healthcare practitioners to a much higher standard than applies to these other healthcare professionals."
I won't speak for Hon. TexTushHog, but I'll speculate his concern is not that this case would provide any precedential value for overturning Lawrence v, Texas but might itself be a vehicle for the newly consituted Supreme Court of the United States with Roberts, Scalia, Alito, Thomas, and Kennedy to review Lawrence - and that hardly bodes well.
Personally, I cannot see the Supremes wanting to re-open the obvious can of worms on sexual privacy among and between consenting adults. They do read the newspapers... and "civil unions" are the coin's flip side.
I can see and truly appreciate TTH's concerns here.....It's kinda the same way that the Warren Court of the 60s and 70s granted a whole lot of personal freedoms and then the friggen Rehnquist Court of the 80s and 90s were doing everything they could to remove them from us.....

I never did know too much about Alito's allegiance, figured he was a conservative though, but I know for a fact that Roberts, Scalia-Thomas (since Thomas always has his head up Scalia's ass there's really no sense in naming them separately) and Kennedy would simply jump at the chance to review and/or overrule the Lawrence decision.....

I still think that they'll want to give the entire 5th Crt a chance to decide this en banc before it gets appealled to the SCT so let's just enjoy the victory while it lasts.....
The composition of the Court has changed since Lawrence, and Alito and Roberts have shown little respect for precedent, and what little that Roberts has shown has resulted in chiding from Scalia about not moving fast enough to dismantle the past pillars of the Court's jurisprudence. As Justice Bryer noted in his dissent in the School desegregation opinions that sub rosa overruled Brown v. Board, "It is not often in law that so few have so quickly changed so much."

Lawrence, of course, overruled Bowers v. Hardwick, which was decided in 1986. It's pretty rare Constitutional to have a case overruled in 17 years. I could see the majority just saying that, "Yeah, it's only been five years, but Bowers was right to start with and Lawrence was wrong, let's go back to Bowers." These fools are crazy enough to do that. Uncle Clarence has no respect for president as a matter of doctrine and formally admits as much. Scalia has very little respect for it and has come close to admitting it in writing. Alito has shown himself to be a reactionary, and Roberts isn't far behind. All that might save it is that Lawrence was 6 - 3, not 5 - 4. But if McCain gets the next appointment, rather than a Democrat, who knows.
Lawrence v. Texas was indeed the basis for Judge Reavley's panel opinion, reading that Supreme Court case very broadly to create a "substantive due process" right to sexual privacy among consenting adults that the Texas statute was held to infringe upon.

The odds are pretty decent -- I'd say at least 50/50 -- that the full Fifth Circuit, sitting en banc, will vacate this ruling and agree to rehear the appeal, in which case they would probably ultimately reach the opposite outcome and affirm the constitutionality of the Texas law. As noted above, it was only a 2/1 decision by the three-judge panel, with a well-written dissenting opinion by Judge Rhesa Barksdale. Assuming the State files a motion for rehearing en banc -- and that's a safe bet -- then Judge Barksdale can be expected to push for re-hearing en banc to be granted. In the discussion among the Fifth Circuit judges about how to vote on that motion, the judge who actually wrote the majority opinion for the panel, Judge Tom Reavley, won't be able to vote, nor even to participate in the discussion, because he's "senior status" (basically, "semi-retired"). That will give Judge Barksdale a serious advantage.

This is also the kind of case likely to attract the involvement of the fairly new (since 2006) Chief Judge of the Fifth Circuit, Edith Jones of Houston. She's technically only first among equals and her vote counts the same as all of the other active-status judges' votes. But she presides over en banc oral arguments and has the power to make the opinion-drafting assignment if she's in the tentative majority at the post-argument secret conference when the judge cast their provisional votes. And either Chief Judge Jones or Judge Barksdale might well write a new opinion reversing the panel opinion's decision in a way that so obviously end-runs Lawrence v. Texas that it would be a virtual slap in the Supreme Court's face, making it more likely for the Supreme Court to then take up the case.

(Substantive due process is an extremely controversial constitutional theory with very thin precedent for it and no real bounds beyond the individual judges' gut hunches about what's right and wrong. It's the poster child about which conservatives are complaining when they're talking about judges "making laws from the bench" to overrule state legislatures and Congress.)

So it's indeed possible that the Supreme Court could reconsider -- and possibly reverse or weaken -- Lawrence through further proceedings in this dildo case once the Fifth Circuit proceedings are concluded. I think that's very, very unlikely, however.

The key "swing vote" for Lawrence was Anthony Kennedy, who wrote the opinion. He's still on the Court and unlikely to change his mind on this issue. Nor are Justices Stevens, Breyer, Ginsburg, or Souter, who (together with Kennedy) made up the 5-judge majority for Lawrence. Current Chief Justice Roberts would likely vote the same way his predecessor, the late Chief Justice Rehnquist, did (against Lawrence), so Roberts' presence on the Court isn't going to prompt any different result this time around. Scalia and Thomas would uphold the dildo law, but they already voted against Lawrence too. And Justice Alito's predecessor, Justice O'Connor, concurred in the result in Lawrence, but on much narrower grounds (unlawful class-based discrimination against homosexual sodomy, in violation of the Equal Protection clause), without joining in Judge Kennedy's substantive due process analysis. Justice O'Connor's vote wasn't needed for Lawrence, and Justice Alito's vote wouldn't be necessary to strike down the Texas dildo law either.

So, bottom line: The Texas dildo case would be more likely to result in Lawrence being re-affirmed, again on a 5/4 vote, than in Lawrence being overruled -- assuming that the Supreme Court actually grants certiorari and agrees to review the dildo case at all.

If, however, the Fifth Circuit doesn't grant rehearing en banc and permits the panel opinion striking down the Texas statute to stand, the Supreme Court would probably just refuse to hear the case, leaving that result in place.

Putting it another way: Both Lawrence and this new decision striking down the Texas dildo statute are unlikely to be changed unless and until one of the four liberal Supreme Court Justices (Stevens, Ginsburg, Breyer, and Souter) retires and is replaced by a conservative president.
unless composition of the sitting Supremes changes - unlikely given the prevailing winds in the populace they'd re-open the can of worms. But as I recall, it takes five justices to agree to hear any appeal.

imho (and very imho) although many citizens (just like on abortion) may not like or approve of what happens in others' bedrooms, the majority nonetheless likely supports adults' right to do as they please with their bodies in these instances.

Applying that philosophy to the hobby, however, I think would be a far stretch.

And, agreeing with public opinion or not, the Supremes do seem to pay some attention to public opinion, fwiw.
I think Lawrence is safe unless McCain gets the next appointment and its to replace one of the five remaining members of the Lawrence majority. And I largely agree with Shark's analysis other than his gratuitously biased comments on the 14th Amendment. And Lawrence cites Griswold very early in the opinion so it also sounds not just in substantive due process, but in the right to privacy, with all the attendant issues of where that is found. One can still argue, as I think is more proper -- but not particularly supported by case law -- than the right to privacy is not necessarily found on the 14th amendment but in the penumbras of the Constitution as was held in Griswald, or even in the 9th Amendment as Meyer v. Nebraska and Pierce v. Society of Sisters.

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