Constitutional Law
Appeals Court Overturns Sex Toy Ban, Setting Up Circuit Conflict
Posted Feb 14, 2008, 07:31 am CDT
By Debra Cassens Weiss
A federal appeals court decision overturning a Texas ban on the sale of sex toys wasn't issued in time for retailers' lucrative Valentine’s Day season.
The decision will take effect when the New Orleans-based 5th U.S. Circuit Court of Appeals issues its mandate in March, the Houston Chronicle reports.
In 2-1 decision (PDF), the appeals court ruled Tuesday that the law violates privacy protections of the 14th Amendment, setting up a conflict with a 2007 Valentine’s Day ruling (PDF) by the Atlanta-based 11th U.S. Circuit Court of Appeals, How Appealing reports. The 11th Circuit upheld a ban.
The 5th Circuit cited the U.S. Supreme Court’s 2003 ruling Lawrence v. Texas, which struck down a ban on consensual gay sex, the Associated Press reports.
"Just as in Lawrence, the state here wants to use its law to enforce a public moral code by restricting private intimate conduct," the 5th Circuit majority wrote. "This 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."
A decision has not been made on whether to appeal, said Tom Kelley, a spokesman for the Texas Attorney General's Office.
The 5th Circuit ruling is Reliable Consultants Inc. v. Earle.
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