A federal appeals court has struck down a seldom-enforced Texas law making it a crime to promote or sell sex toys.
The 5th U.S. Circuit Court of Appeals, ruling in a case originally filed in federal court in Austin, found that the ban in the Texas penal code on selling or promoting obscene devices violates the right to privacy under the 14th Amendment of the U.S. Constitution.
“Whatever one might think or believe about the use of these devices, government interference with their personal and private use violates the Constitution,” said the opinion in the case considered by a three-judge panel of the New Orleans-based court.
The opinion relied 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 members of the same sex. That case established a broad constitutional right to sexual privacy.
The sex toys lawsuit arose in 2004 when Reliable Consultants Inc., which operates four retail stores in Texas under the names Dreamer’s and Le Rouge Boutique, sued Travis County District Attorney Ronnie Earle challenging his right to prosecute under the law, a state jail felony punishable by up to two years in jail. PHE Inc., doing business as Adam and Eve, Inc., intervened on behalf of the plaintiffs and the State of Texas, represented by Attorney General Greg Abbott, entered the suit as a defendant.
U.S. District Judge Lee Yeakel dismissed the suit after finding that there is no constitutionally protected right to publicly promote obscene devices. The plaintiffs then appealed.
The Texas statute criminalizes the selling, advertising, giving or lending of a device designed or marked for sexual stimulation, according to the opinion. In addition to Texas, three other states have a similar obscene-devices statute :Mississippi, Alabama and Virginia. Obscene-devices statutes in Louisiana, Kansas, Colorado and Georgia have been struck down by courts.
The case is Reliable Consultants v. Earle and the opinion is available here.