Look What The Courts Are Doing

Ilya Somin of the Volokh Conspiracy calls attention to a recent decision of the US Court of Appeals for the Fifth Circuit striking down a Texas law banning the sale, lending, or giving away of sex toys. According to the opinion in Reliable Consultants, Inc. v. Earle (am I the only one who finds it amusing that Ronnie Earle is a defendant in this case?), the law at issue was passed in 1979 and "prohibit[ted] the 'promotion' and 'wholesale promotion' of 'obscene devices'... The legislature chose to broadly define 'obscene device,' not using the Miller test, but as any device 'designed or marketed as useful primarily for the stimulation of human genital organs.'" The court held that, based on the Supreme Court precedents established by Griswold v. Connecticut and Lawrence v. Texas, the statute violated the 14th Amendment and was therefore void. I'm sure that Mamacita's friend Dawn is relieved. Also interesting about this decision is that it decides the question differently from how the Eleventh Circuit Court of Appeals decided a case about a similar Alabama law in 2004. This means that there is a circuit split on sex toy regulation, setting the stage for the Supreme Court to decide the issue once and for all. I don't know about you, but the prospect of Ruth Bader Ginsberg or Antonin Scalia pontificating about the Constitutionality of laws banning sex toys is, well, a bit awkward.