Texas Overturns Ban on Sex Toys

By Jeralyn, Section Court Decisions
Posted on Thu Feb 14, 2008 at 01:22:00 AM EST
Tags: sex toys (all tags)

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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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Texas Overturns Ban on Sex Toys | 24 comments (24 topical)

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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

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

: Vegetables can be really sensuous, don't you think (none / 0) (#19)
by sarcastic unnamed one on Thu Feb 14, 2008 at 01:08:44 PM EST

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....

http://sextoys.us