That's what Eugene Volokh is thinking about:
Earlier this year, I noted that the Texas ban on dildoes — yes, it expressly mentions "dildo" — was struck down by the U.S. Court of Appeals for the Fifth Circuit (and just in time for Valentine's Day). The law, the court held, violates Lawrence v. Texas right of "adult consensual sexual intimacy in the home."
On this, the Fifth Circuit panel disagreed with the Eleventh Circuit, which upheld a similar Alabama law last year. I noted that there was a solid split, so there's a decent chance that the U.S. Supreme Court will step in to resolve this (though there's of course no guarantee).
Today, the Fifth Circuit denied rehearing en banc, over the dissent of seven judges; six of them sharply disagreed with the panel decision on the merits, and all seven noted the circuit split....
So I'll go out on a limb and predict:
(1) The Supreme Court will agree to hear the case.
(2) The Supreme Court will reverse the panel decision and conclude the statute is constitutional.
(3) The vote will be at least 6-3, because even some of the liberals on the Court — I particularly have in mind Justice Breyer — and moderate conservative Justice Kennedy will think that the courts' power to recognize unenumerated rights should be saved for rights (e.g., abortion, contraception, sexual intimacy, parental rights, right to refuse medical treatment, right to live with close family members, and the like) that are more important in most of their exercisers' lives.
That's quite a detailed prediction for a case that might never result in a cert. grant. I'm inclined to think the Court will dodge the issue because it isn't ready to define the scope of Lawrence v. Texas. There certainly is a circuit split, but the Court doesn't take up every case that comes from a circuit split. I think it will take more than two circuits to get the Court to overcome its natural inclination not to deal with the subject matter at issue.
Dale Carpenter added his thoughts:
I have some of the same reactions as Eugene to the Fifth Circuit's denial of rehearing en banc in the sexual-devices case. The fact that there is now a split between the Fifth Circuit and the Eleventh Circuit on whether a state can ban the commercial promotion of sexual devices (including, without limitation, "dildos" and "artificial vaginas") increases the likelihood the Court will hear the case. Likewise, the fact that seven judges on the Fifth Circuit saw fit to dissent in writing from the denial increases the likelihood cert will be granted. Such a review could be the occasion for some much-needed clarification of Lawrence.
On the other hand, I take more seriously than Eugene the possibility that the Court will simply believe the case is beneath its dignity, or is embarrassing, or does not involve an issue of sufficient importance. Add to that the fact that the circuit split is unlikely to grow since I'm unaware of comparable laws outside the jurisdictions of these two circuit courts (correct me if I'm wrong, I haven't researched the issue). This may simply be an issue for future law school exams.
I agree that it would be nice for the Court to offer some guidance on the scope of the liberties described in Lawrence, but I just do not think it is ready to do that.
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