In 1979, Texas passed an obscenity law that a recent ruling by the Fifth Circuit Court of Appeals described as "prohibit[ing] the 'promotion' and 'wholesale promotion' of 'obscene devices,' which includes selling, giving, lending, distributing, or advertising for them" (Reliable Consultants v Earle # 06-51067). A 1985 decision by a Texas court upheld the law because they found there was no constitutional right to “stimulate . . . another’s genitals with an object designed or marketed as useful primarily for that purpose.” Lest you think that this is just a Texas problem, Mississippi, Alabama, Virginia, Louisiana, Kansas and Colorado have all dealt with this issue.

While that doesn't mean such a law is coming to your state, it is important to take a look at what's going on - esp since since our right to privacy includes sexual privacy. Michael Dorf, writing at Findlaw.com on the Alabama case noted "Patrick Henry never said "give me dildos or give me death," but he did speak of liberty, as does the Constitution. And not surprisingly, how the courts go about defining that "liberty" has ramifications far beyond the legality of vibrator sales in Mobile." As BoingBoing put it, One could stroll down Alabama's southern streets selling semiautomatic rifles and dildos, and be arrested for the dildos.

In the Alabama case, "the appeals court suggested that the case posed the question whether there is an absurdly narrow (and vulgar) fundamental right to use 'vibrators, dildos, anal beads, and artificial vaginas'." The majority there also rejected the idea of a generalized right of sexual privacy " because (among other reasons) it would encompass pederasty, prostitution and incest -- which the judges believed were clearly proscribable consistent with the Constitution."

What other rights of your do you think could be put in such a way as to make them sound absurd to conservatives who talk about freedom but are all in favor of government intruding on the parts of your life that offend them?

Back to the Texas case:

According to the Fifth Circuit, the district court upheld the law because "there is no constitutionally protected right to publicly promote obscene devices." Those challenging the law [the businesses selling sex toys] "claim that the right at stake is the individual’s substantive due process right to engage in private intimate conduct free from government intrusion." Texas itself proposes that the case is about “the right to stimulate one’s genitals for non-medical purposes unrelated to procreation or outside of an interpersonal relationship.” (See Dorf's Findlaw.com column which discusses the importance of the level of generality in phrasing rights.)

The Fifth Circuit uses Lawrence v Texas as its guide. Lawrence struck down a(nother) Texas law that made it a crime to engage in consensual homosexual intercourse and struck down Bowers v Hardwick (a 1986 case that upheld a similar law). The Fifth Circuit quotes Lawrence:

To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse. The laws involved in Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home.

They emphasize [conservative get-government-off-our-back types take note]: "The right the Court recognized was not simply a right to engage in the sexual act itself, but instead a right to be free from governmental intrusion regarding 'the most private human contact, sexual behavior'." The Fifth Circuit notes that in Lawrence, the Supreme Court "expressly held that 'individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of ‘liberty’ protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons'.” (It took the law a while to recognize that privacy attached to individuals, not marriages, as the right to privacy grew out of a 1965 case Griswold v Conn. involving the right of married couples to use contraceptives.)

What's important Lawrence and this ruling is the precedence given to individual liberty over the state's interest in "public morality laws" (badly named because the act is done in private). Texas asserts an interest in "discouraging prurient interests in autonomous sex and the pursuit of sexual gratification unrelated to procreation and prohibiting
the commercial sale of sex." The Fifth Circuit notes:

In Lawrence, Texas’s only argument was that the anti-sodomy law reflected the moral judgment of the legislature. The Court expressly rejected the State’s rationale by adopting Justice Stevens’ view in Bowers as “controlling” and quoting Justice Stevens’ statement that “‘the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.’”

The Fifth Circuit also notes that the "commercial sale of sex" is a problematic formulation:

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.

Frankly, I'm skeptical that prostitution laws uphold public safety - prostitutes are harmed all the time partly because they cannot go to the police and report injuries. That's a different story, but see the decision by a New York court striking down the prostitution law and Stanford Encyclopedia of Philosophy entry on Feminist Perspectives on Sex Markets.

[Hat tip to Health Law Blog] 

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