Define "sex toy".
Posted on 04/05/2011 11:05:46 PM PDT by stevelackner
In his dissent in Lawrence v. Texas (2003), the Supreme Court case that invalidated Texas’s sodomy law, Justice Antonin Scalia cites the 11th Circuit case of William v. Pryor (2001) which upheld Alabama’s prohibition on the sale of sex toys on the ground that “[t]he crafting and safeguarding of public morality…indisputably is a legitimate government interest under rational basis scrutiny.” Scalia lists this ruling as one of “[c]ountless judicial decisions and legislative enactments” that “have relied on the ancient proposition that a governing majority’s belief that certain sexual behavior is ‘immoral and unacceptable’ constitutes a rational basis for regulation.” He then warned that legislation and rulings like this and many others were now to be wrongly “called into question” due to the Supreme Court’s erroneous ruling. As subsequent sex toys cases at the appellate demonstrate, Scalia was right. Lawrence was very quickly extended to new areas, calling into question the validity of statutes that prior to Lawrence were rightfully never considered unconstitutional.
The 11th Circuit in William v. Attorney General of Alabama (2004) reconsidered bans on sex toys but was able to still weasel out of striking down the law by applying the Washington v. Glucksberg (1997) analysis for determining whether something should be constitutionally protected as a new “fundamental right,” instead of relying chiefly on Lawrence. Lawrence was at the very least an incoherent Supreme Court decision in that it was intentionally vague regarding the reasoning being used. Was the sodomy law overturned because sodomy is a “fundamental right” or did the ban have no “rational basis”? Not answering this question clearly enough left an opening for this appellate court to essentially ignore Lawrence by saying it did not overrule Glucksberg's fundamental rights analysis “by implication.” The 11th Circuit then proceeded to apply Glucksberg and uphold the law by reasoning no fundamental right was implicated by the Alabama statute relating to sex toys. Meanwhile, the 5th Circuit in Reliable Consultants, Inc. v. Earl (2008) relied on Lawrence and overturned a Texas sex toys statute.
One important lesson that can be gleamed from this is that amateur poetry and philosophy the likes of which is seen in the opinions of Justice Kennedy in cases like Lawrence or Planned Parenthood v. Casey (1993) does not amount to legal rules or principles. It provides not guidance to lower courts. The Supreme Court should be in the business of announcing clear legal rules, and those rules should be in accord with the Constitution. When the Supreme Court fails to do so they leave the door open to lower courts applying or twisting precedent to reach the result they desire.
Which appellate ruling is ultimately correct? In terms of application of precedent, Lawrence in combination with other privacy cases does indeed provide a very strong basis for overturning the sex toys law. Though I agree in principle with the 11th Circuit that such laws are not unconstitutional, it is an unfortunate state of affairs that legal acrobatics through precedent is needed to reach what I consider the more Constitutional outcome.
Looking to Reliable Consultants, Texas’s asserted interests in the sex toys ban included “discouraging prurient interests in autonomous sex and the pursuit of sexual gratification unrelated to procreation and prohibiting the commercial sale of sex.” It also asserted as an interest the “protection of minors and unwilling adults from exposure to sexual devices and their advertisement.” I still find it completely astounding to believe the Constitution itself somehow declares these interests per se invalid. These interests may be disagreeable to some, though they were obviously not disagreeable to the State of Texas that was fighting to keep the law. All the 5th Circuit needs to do, however, is declare that “interests in ‘public morality’ cannot constitutionally sustain the statute after Lawrence” and the law disappears. The fact is that the Constitution simply does not protect the right to sell or use sex toys. No Constitutional provision remotely implies such a right, only fallacious Supreme Court precedent does.
Further, by defining the rights at such a level of generality (quoting Lawrence: as “a right to be free from governmental intrusion regarding ‘the most private human contact, sexual behavior’”) federal judges are given free reign to extend Lawrence to strike down laws they happen to dislike (sex toys bans, Proposition 8, etc.). One wonders whether judges would arbitrarily draw the line in the sand that is this general right and still uphold bans they favor (laws against bigamy, adult incest, prostitution, bestiality, obscenity, etc.), or whether the right in question would suddenly narrow? The fact remains that judges can easily shoehorn what they please into a judicially-created right when the right is stated in its most general terms. In effect, it becomes a right so general only a judge can apply it and declare its limits. But when judges state the right so generally one should take notice that they simply fail to take the very general right they created to its logical conclusion and lift all sexual bans and prohibitions on private human conduct. This is demonstrative of how unprincipled the judiciary then becomes, with the application of the right becoming a matter of raw judicial power and blatant judicial activism. The statutes at hand are about sex toys like dildos and fake vaginas, and the right in question is the right to use or purchase dildos or fake vaginas. As the Supreme Court stated in Michael H v. Gerald D (1989), the “level of generality” selected should “refer to the most specific level at which a relevant tradition protecting, or denying protection to, the asserted right can be identified… Because such general traditions provide such imprecise guidance, they permit judges to dictate, rather than discern, the society's views. The need, if arbitrary decisionmaking is to be avoided, to adopt the most specific tradition as the point of reference… [A] rule of law that binds neither by text nor by any particular, identifiable tradition is no rule of law at all.” The Texas Court of Criminal Appeals was therefore correct in 1985 when it correctly ruled there was no constitutional right to “stimulate...genitals with an object designed or marketed as useful primarily for that purpose.”
A most judicious point that I wholeheartedly agree with and worth reading was made by the 11th Circuit when it declared: “Hunting expeditions that seek trophy game in the fundamental-rights forest must heed the maxim ‘look before you shoot.’ Such excursions, if embarked upon recklessly, endanger the very ecosystem in which such liberties thrive-our republican democracy. Once elevated to constitutional status, a right is effectively removed from the hands of the people and placed into the guardianship of unelected judges. We are particularly mindful of this fact in the delicate area of morals legislation. One of the virtues of the democratic process is that, unlike the judicial process, it need not take matters to their logical conclusion. If the people of Alabama in time decide that a prohibition on sex toys is misguided, or ineffective, or just plain silly, they can repeal the law and be finished with the matter. On the other hand, if we today craft a new fundamental right by which to invalidate the law, we would be bound to give that right full force and effect in all future cases-including, for example, those involving adult incest, prostitution, obscenity, and the like.”
Just do what the DEA has done, require a license to acquire schedule 1 drugs, and never issue that license. Instead require a permit to open a adult bookstore and never issue that permit.
When I was a kid if I hadn’t had a hole in my pocket I wouldn’t have had no toys to play with.
Since when is government the protector of morality? They do everything they can to make that word meaningless.
I thought the government said that they couldn’t ban abortion because they couldn’t regulate morality.
This street seems to have a one-way sign, doesn't it?
Roe v. Wade was not based on a ruling that said regulating morality alone was unconstitutional, it was based on a judicially created “right to privacy” that the Supreme Court had invented in a ruling just a few years earlier. For more information on that, see http://www.stevelackner.com/2011/02/penumbras-formed-by-emanations-truth.html
We no longer have a government.
It just seems like they regulate morality when they feel like it. They want to regulate what you eat, whether you smoke or not. They want to force people to accept the homosexual agenda.
Let me add a footnote if I may...
“right to privacy”
When "Jane Roe" stepped forward and identified herself, saying that she was manipulated into filing the suit, those liberals who for years insisted that she should be anonymous savaged her, and dug up everything they could on her.
A true nest of vipers.
Define "sex toy".
The judicial branch has essentially destroyed the legislative branch. Congress passes a law, and some liberal legislating from the bench labels it "un-Constitutional", and that's it.
I know that I experienced a visceral reaction on viewing that image.
No matter what you think of said device or product, the thought of federal oversight of it is infinitesimally more perverse.
I’ve always said the government would someday tax masturbation. Why not tax sex aids? :)
That is so wrong. My little Italian bike (Ducati 996) is drooling.
Another topic exploding Salamander post! lol
“Lawrence was at the very least an incoherent Supreme Court decision in that it was intentionally vague regarding the reasoning being used.”
Lawrence was incoherent because there is no constitutional basis for the decision. It was just five justices who disagreed with a state law. Ultimately, that was the rationale for the decision.
But when you try to manufacture a credible rationale out of whole cloth, it usually comes out incoherent. When courts abandon principle, there then becomes no way to distinguish Lawrence from a state law prohibiting protest outside abortion clinics, except that Justice Kennedy thinks sodomy is a good thing while exercising your free speech rights outside an abortion clinic is not.
Of course, there is a simple way to distinguish the two situations—the constitution protects free speech but not sodomy. But who cares about that when Justice Kennedy knows better.
And Justice Kennedy who wrote the majority opinion in Lawrence, will likely be the deciding vote when Ted Olson takes the Prop 8 case before the SCOTUS.
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