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
http://alt.coxnewsweb.com/statesman/pdf/02/021408sextoy_opinion.pdf
---
Good ASPD.net 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.