Sex Crimes: Texas Decides Not to Seek Cert in Sex-Toy Case

The State of Texas has decided not to seek a writ of certiorari following the Fifth Circuit Court of Appeals decision which overturned Texas's sex-toy ban. The Fifth Circuit's opinion can be viewed here. I can't seem to find the story in a mainstream source, so for lack of a better alternatives, here is the story from AVN Media Network:

It was almost subtle. Prominent First Amendment attorney H. Louis Sirkin received an order this morning from the U.S. District Court in Austin, Texas requiring the parties in the case of Reliable Consultants, Inc. v. Earle to submit a written status report on the case - but the big news was this sentence: "On October 29, 2008, counsel for the State of Texas informed the Court by telephone that the State does not intend to seek a writ of certiorari in this cause."

What that means is that the decision by a three-judge panel of the Fifth Circuit Court of Appeals on Feb. 12, which overturned Texas' obscene device law, remains the law of the land, at least in the three states that form the Fifth Judicial Circuit: Texas, Louisiana and Mississippi.

"The panel decision actually reaffirmed what Judge [Gary] Lancaster had done in Pittsburgh," Sirkin told AVN, referring to Lancaster's landmark opinion dismissing obscenity charges against Extreme Associates - charges which were later reinstated by the Third Circuit. "He really upheld that there's a substantive due process right of individuals to buy that which can excite them in the privacy of their own homes. And the key word is 'buy,' as in 'to buy and to have available to them for sale for that type of home environment.' And that's part of the argument that was used in the Reliable decision, that sex is not just for procreation; that this case recognizes a right of auto-eroticism - in other words, masturbation."

"What's really great about it is, as I've said before, the argument is being listened to," Sirkin continued, "and that's why I've made the argument for the big picture about how important the Extreme case is ultimately, because that issue will resurface if there's an adverse ruling, and the person that really set the stage for it was Judge Lancaster, and it's great from that standpoint. I go back to what I said when I got the Freedom Isn't Free award, that Lawrence is the future, and we've just got to keep pounding away at it, and they keep listening to Jennifer [Kinsley, Sirkin's partner] and me.

The Fifth Circuit decision in Reliable Consultants relied heavily on the U.S. Supreme Court's 2003 ruling in Lawrence v. Texas, which said that the government had no business interfering with (or criminalizing) the private sexual affairs of citizens. As Judge Thomas Morrow Reavley wrote in the Reliable decision, "Because of Lawrence, 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. 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."

With the Fifth Circuit now on board with the right to use and sell "obscene devices," that leaves only some states in the Tenth and Eleventh Circuits - most notably Alabama, for its continued rejection of retailer Sherri Williams' similar arguments for the right to sell adult novelties - which continue to criminalize sales of the devices. The U.S. Supreme Court last year rejected Williams' cert petition, and with Texas declining to bring the issue before the high court, there remains an untenable conflict in the judicial circuits.

"There are only three circuits in which any state has one of these laws, and the Fifth has gone one way, the Eleventh the other way, with the Tenth yet to weigh in," said First Amendment attorney and AVN columnist Clyde DeWitt. "Since Mississippi and Texas are in the Fifth Circuit, and the Eleventh Circuit has knocked out Georgia's obscenity law, which includes the device law, the only states left where it is illegal to sell so-called 'obscene devices' are Alabama and Kansas."

"The emerging problem now is local ordinances, some of which are beginning to include special categories of adult novelty businesses and severely regulate them," DeWitt continued. "The problem, of course, is that novelties are not protected by the First Amendment like videos and magazines. The effect of Reliable Consultants on that type of ordinance remains to be seen."

Indeed, attorney Gary Krupkin, who represents Texas retailers Sara's Secret and Condoms To Go, is pushing forward with his lawsuit against Murphy, Garland and Rowlett Counties in Texas, all of which have local ordinances which define stores that sell novelties as "sexually oriented businesses," even though the stores do not sell, rent or display adult videos or other products which depict sexual conduct.

H/T: How Appealing.