Decision Was A Little Late for Valentine’s Day

A Texas statute that prohibits the advertising or sale of sexual devices was declared a violation of the Fourteenth Amendment by a federal appeals court. The decision reversed the trial court’s finding that the plaintiffs, who marketed and sold sexual devices, had failed to state a cause of action.

The Texas statute criminalized the selling, advertising, giving or lending of a device designed or marketed for sexual stimulation. The plaintiffs consisted of owners of stores in Texas who sold such devices and another company that marketed and sold devices on the Internet but had no facilities in Texas. The trial court had found that the statute did not violate the Fourteenth Amendment because there is no constitutionally protected right to publicly promote obscene devices.

The appellate court rejected this argument, finding, instead, that “the issue before us is whether the Texas statute impermissibly burdens the individual’s substantive due process right to engage in private intimate conduct of his or her choosing. Contrary to the district court’s conclusion, we hold that the Texas law burdens this constitutional right,” the appellate court wrote. “An individual who wants to legally use a safe sexual device during private intimate moments alone or with another is unable to legally purchase a device in Texas, which heavily burdens a constitutional right.”

Additionally, the court found that Texas “wants to use its laws to enforce a public moral code by restricting private intimate conduct. 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. This is an insufficient justification for the statute.”

Reliable Consultants, Inc. and PHE, Inc. v. Ronnie Earle, Fifth Cir. No. 06-51067, issued February 12, 2008.