St. Mary's Law Journal


Laura M. Clark


When the Fifth Circuit freed Texans to promote and distribute sexual devices without criminal penalties, it created a split with the Eleventh Circuit’s decision to uphold Alabama’s ban. Both courts based their rulings on the U.S. Supreme Court’s decision in Lawrence v. Texas, which invalidated Texas’s statute banning homosexual sodomy. In upholding Alabama’s sex-toy statute in 2007, the Eleventh Circuit found no fundamental right to sexual privacy under Lawrence and held public morality was a sufficiently rational basis for the statute. The court distinguished Lawrence, which dealt with prohibition of private conduct, rather than public commercial activity. The Fifth Circuit read Lawrence broadly, finding in Reliable Consultants, Inc. v. Earle, that Texas statutes infringed on the due process rights of sex-toy users to engage in private sexual activity. The Fifth Circuit decided public morality did not justify the regulation of private, intimate sexual activity and it could not justify the sex-toy statute’s regulation of private, intimate sexual activity. The conflict between the Fifth and Eleventh Circuits over the constitutionality of state bans on the promotion of sex toys, or obscene devices, aptly illustrates these dueling modes of interpreting Lawrence. Both before and since Lawrence, Texas courts have upheld the state’s ban on promotion of obscene devices. The Fifth and Eleventh Circuits both read the holding of Lawrence as relating to private conduct. The Eleventh Circuit takes Lawrence at face value, while the Fifth Circuit takes a more expansive view of Lawrence. Although this circuit disagreement might seem irreconcilable, it could be resolved by viewing Lawrence as recognizing a “relational right,” involving interpersonal relationships. Reading Lawrence in this manner would follow the Supreme Court’s obscenity holdings and shield individuals’ right to possess and use obscene materials in private but allow regulation of them in commerce.


St. Mary's University School of Law