It is doubtful that the Fifth Circuit timed the opinion to coincide with Valentine’s Day, but the court has issued a very interesting opinion striking down a Texas law prohibiting the promotion and sale of sex toys. It represents an extension of the precedent in Lawrence v. Texas, striking down a criminal prohibition on homosexual relations.
The 35-year-old state law in question banned promotion or sale of sex toys. The panel ruled that the law violates the privacy protections of the 14th Amendment, making passing reference to the Lawrence decision.
“Just as in Lawrence, the state here wants to use its law 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 of consensual private intimate conduct.”
It is astonishing that the state would spend money to defend these laws, which seek to force citizens to live by the morals of the majority. For conservatives who claim to believe in individual rights and limited government, it is a betrayal of the most basic principles of liberty.
The ruling could throw similar laws in Mississippi, Alabama and Virginia into question. For full disclosure, I have previously criticized moral laws in columns here and here
For the Fifth Circuit ruling, click here