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Analysis: Texas Sex-Toy Retailers Aren't Out Of The Woods Yet

Analysis: Texas Sex-Toy Retailers Aren't Out Of The Woods Yet

NEW ORLEANS – Even though the full Fifth Circuit U.S. Court of Appeals has refused to take a second look at a panel decision to legalize the sale of devices intended to be used for sexual stimulation, a recent decision from the Texas Court of Criminal Appeals may prevent most Texas retailers from stocking up on dildos and other sex toys, at least for a while.

In its as-yet-unpublished decision in the case of Beatrice Villarreal v. State of Texas issued July 3, the Texas appeals court affirmed that Villarreal had violated state laws prohibiting the sale of obscene devices as well as a municipal ordinance prohibiting the operation of a sexually oriented business without a permit.

However, since the Fifth Circuit had issued its ruling in Reliable Consultants, Inc. v. Earle, which struck down the Texas obscene device law, while Villarreal's appeal was still in process, the Texas appeals court allowed Villarreal the opportunity to present any arguments she had based on the Reliable decision, and in fact, Villarreal's attorney submitted supplemental briefing on that subject.

But although the Villarreal court made it abundantly clear that "we agree with the legal reasoning set out by the Reliable majority," due to precedent within the Texas court system, Justice Linda Reyna Yañez was forced to conclude that, "though we embrace the Fifth Circuit's decision, we are unfortunately constrained from following it."

"Fifth Circuit precedent is not binding on Texas courts, and its constitutional pronouncements are highly persuasive at best," Justice Yañez continued. "An explanation for why Texas courts and other state courts are not bound by the constitutional pronouncements of the federal district and circuit courts can be found in United States ex rel. Lawrence v. Woods..."

Justice Yañez went on to explain that that the Lawrence case (not to be confused with Lawrence v. Texas, the Supreme Court decision at the heart of the Reliable decision) involved an appeal to the Supreme Court of Illinois, where defendant Lawrence was appealing a conviction of a violation of an ordinance criminalizing interference with the duties of a police officer.

"While Lawrence's appeal was pending before the Supreme Court of Illinois, a federal district court, in an unrelated declaratory judgment action, held that the interference ordinance was unconstitutional and void on its face as repugnant to the federal Constitution," Justice Yañez continued. "The Supreme Court of Illinois later affirmed Lawrence's conviction, and Lawrence eventually appealed to the Seventh Circuit [of which Illinois is a part], contending 'that the Supreme Court of Illinois failed to follow, under the supremacy clause, the federal district court's ruling ... that the interference ordinance is constitutionally void on its face.'" [Citations removed here and below]

The "supremacy clause" refers to Article VI, Sec. 2 of the U.S. Constitution, which states, "This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding." Under that clause, if a law in, for example, Texas conflicted with a constitutional right, such a law would be void and unenforceable.

However, the Seventh Circuit rejected Lawrence's argument, citing a Texas case from 1978, Woodward v. Texas Department of Human Resources, wherein the Texas Supreme Court held that, "[I]n the absence of a controlling decision by the United States Supreme Court, Texas courts of civil appeals are bound by the pronouncements of the Texas Supreme Court on the law. 'After a principle, rule or proposition of law has been squarely decided by the (Texas) Supreme Court ... the decision is accepted as a binding precedent by the same court or other courts of lower rank when the very point is again presented in a subsequent suit between different parties.' And, until the Supreme Court states to the contrary, its pronouncement is the law on an expressed issue."

"Of course in a given factual setting when a lower federal court has jurisdiction over the subject matter and the parties, its adjudication is the law of the case and its judgment is binding on all other courts, subject only to the appellate process," Justice Yañez continued. "But that is not the situation here. The district court's declaration that the interference ordinance is unconstitutional was made in an unrelated case and at a time when petitioner's appeal from his conviction was pending in the Supreme Court of Illinois. In these circumstances, we hold that the federal court's ruling was not binding on the state appellate tribunal. Just as state courts are not bound by declaratory judgments, a lower federal court's issuance of an injunction – as done by the Fifth Circuit in Reliable – also fails to directly bind state courts."

What that means is that Texas courts don't have to pay attention to the Fifth Circuit's ruling in Reliable until the U.S. Supreme Court either accepts cert and decides the case in Reliable Consultants' favor, or refuses the state's (likely) petition for certiorari, leaving the Fifth Circuit decision as the law of the circuit. (Of course, if the Supreme Court takes the Reliable case and overturns the Fifth Circuit decision, "obscene devices" will remain illegal all over Texas and Mississippi, though legal in Louisiana due to a ruling by that state's supreme court.)

"The interesting thing is, it's all about the law of the case between the parties, and one of the defendants in our case was the state of Texas – they intervened in our action – so they can't do anything to our clients because in our case, they're bound," explained prominent First Amendment attorney H. Louis Sirkin, who represents Reliable Consultants. "So at least at the moment, you can say, if anybody wants to buy retail any and all devices, they can go to any store owned by Reliable, and they have several in Austin, one in Kennedale and I think they have one or two in San Antonio; or they could buy it [mail order] through Adam & Eve."

Some of Reliable's stores do business as Dreamer's and Le Rouge Boutique.

As to why the U.S. Supreme Court may agree to review the Reliable case, one need only look at the Fifth Circuit Order denying the petition for en banc review. Of the 18 members of the Fifth Circuit, 10 either voted against review, or were eligible but declined to vote, which means that they would be counted as voting against review. Of the eight who voted for review, seven either wrote a dissent or joined another judge's dissent.

"Of the dissenting arguments, the most compelling is the last one, the little short one," reflected First Amendment attorney Clyde DeWitt. "She says this decision overrules Red Bluff, and that therefore only an en banc court can do that. The rules in every circuit are, one three-judge panel can't overrule another. The counter-argument is, if there's an intervening Supreme Court decision, that would trump the earlier decision – and Red Bluff was '81."

According to DeWitt, Red Bluff Drive-In, Inc. v. Vance only peripherally involved sex toys – and he should know: He was one of the prosecutors involved in the case, even though he had only recently resigned from the Houston District Attorney's office.

"It [Red Bluff] was a challenge to a whole string of things, because it involved a big obscenity bill," DeWitt recalled. "It amended the obscenity laws; it added this thing [obscene devices] and did some other things, so there were a lot of issues in it. This was a comparatively minor issue in the case, and there wasn't much of an evidentiary record, which I'm pretty sure there was in Reliable Consultants, and I know in Williams [see below] there was a terrific evidentiary record. The only evidence in Red Bluff that had anything to do with this is, they had some guy who was a paraplegic and he said he needed these kinds of things that were illegal under this law to function sexually. That was about it. The trial court upheld it; the Fifth Circuit affirmed and it went no further."

That final dissent was authored by Judge Jennifer W. Elrod, a George W. Bush nominee to the court, who also objected to the fact that the Reliable decision creates a split in the circuits, since in 2004, the Eleventh Circuit overruled the trial court for a second time in the case of Sherri Williams v. Attorney General of Alabama, upholding Alabama's own "obscene device" law, in part on the grounds that the state had a legitimate interest in the "promotion and preservation of public morality." On remand, the trial court ruled consistent with the Eleventh Circuit's opinion and upheld the Alabama law. Earlier this year, the U.S. Supreme Court denied Williams' petition for certiorari.

"The highest probability of getting cert granted in the Supreme Court is when there is an unambiguous split in the circuits," DeWitt noted, "and there couldn't be a plainer split than this one. It's not a rule or anything like that. Circuits will look to each other. If there's no opinion in the circuit you're in, the first thing they're interested in knowing is, 'Well, have any other circuits decided this issue?' And if six of them have ruled on it and they've all gone the same way, if you're on the other side, you're pretty doomed."

However, sex toys are completely legal in most states, though the only recent circuit opinion is Williams – and it's not known if any of the litigation in Kansas regarding the Lion's Den chain may lead to a Tenth Circuit ruling.

"Every state that has one of these [obscene device] laws is either in the Tenth Circuit, the Fifth Circuit or the Eleventh Circuit, and a few of them have popped up in local government, where cities or counties passed them," DeWitt noted. "But by and large, the state laws are just in those places. And the Fifth Circuit and the Eleventh Circuit have now ruled on it. In Colorado, it was held unconstitutional by the Colorado Supreme Court."

The main dissenter in Reliable was Judge Emilio M. Garza, a George H.W. Bush nominee, with fellow dissenters Chief Judge Edith H. Jones, Edith Brown Clement and Priscilla Richman Owen owing their seats to Bush 41's son, George W. Bush – readers may recall that all three of those nominations were highly controversial – with other dissenting Judges E. Grady Jolly and Jerry E. Smith having been spawned through Ronald Reagan nominations.

Judge Garza's main problem with the Reliable decision – a problem with which all of his fellow dissenters concur – is that it is an "unwarranted extension" of Lawrence v. Texas (a Fifth Circuit decision approving Texas' anti-sodomy laws which the Supreme Court reversed).

"It is beyond dispute that the Supreme Court decided Lawrence as a substantive due process case," Judge Garza wrote. "Analyzing a case under substantive due process, a court will apply one of two levels of scrutiny. If the challenged law infringes upon a fundamental right, a court applies strict scrutiny. If the challenged law infringes some other nonfundamental liberty interest, a court applies rational basis review. The Court in Lawrence did not announce a fundamental right that would have triggered a strict scrutiny analysis but rather recognized only a narrow liberty interest protecting 'two adults who, with full and mutual consent from each other, engage[] in sexual practices in the confines of their homes.' Accordingly, the Lawrence Court tested the constitutionality of the challenged statute under rational basis review, holding that the 'Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.'"

Judge Garza then adopts one of the favorite rationales of the Supreme Court's most conservative member, Antonin Scalia.

"My disagreement with the Reliable majority is fundamental: having misunderstood the personal liberty interest announced in Lawrence, they created a commercial right ex nihilo ["from nothing"] to promote sexual devices," Judge Garza wrote. "The Lawrence Court announced a narrow liberty interest protecting 'two adults who, with full and mutual consent from each other, engage[] in sexual practices in the confines of their homes.' Nothing more. Indeed, despite some broad rhetoric, the Lawrence Court refrained from announcing a fundamental right under substantive due process analysis and stressed the limited scope of the case before it: 'The present case does not involve minors.  It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.  The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle.' The Reliable majority improperly broadened the scope of this narrow personal liberty interest to encompass commercial activity."

Of course, Judge Garza ignores the fact that the sale of dildos in Reliable "does not involve minors"; "does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused"; "does not involve public conduct" [though retail stores are arguably public places – but mail orders are not!] "or prostitution"; nor does it "involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter" – except perhaps a general business license to sell the novelties!

"The liberty interest announced in Lawrence protects only adult, consensual, private conduct," Judge Garza continued. "The statute in Reliable does not prohibit sexual conduct, private or otherwise. Nor does it impermissibly burden any personal right. It prohibits only commercial conduct, e.g. manufacturing, selling, or advertising sexual devices, including dildos and artificial vaginas, which the people of Texas, acting through their elected representatives, have deemed to be particularly immoral, offensive, or otherwise warranting commercial prohibition. Moreover, the statute prohibits only commercial acts in the State of Texas.  Texans face no punishment should they choose to possess or use such devices.  Nor do they face punishment for purchasing such devices in another State and bringing them into Texas for their private use." [Emphasis added]

In a sense, it's the same problem created by the Supreme Court's decision in Stanley v. Georgia, which recognized citizens' right to own obscene materials in their own homes. Since then, the high court has steadfastly denied businesspeople the right to sell obscene materials, ignoring the fact that most people don't manufacture their own obscenity for their personal use.

In taking the Fifth Circuit panel to task for ignoring the Eleventh Circuit's Williams case, Judge Garza claimed, "The Williams Court began its analysis by observing that the Supreme Court never has recognized a broadly-defined fundamental right to 'privacy' or to 'personal autonomy.' Nor, according to Williams, has the Supreme Court ever recognized a 'free standing "right to sexual privacy".' Indeed, Williams observed that the Supreme Court has at least twice declined to recognize a fundamental right to sexual privacy, choosing instead to define narrower liberty interests, specific to the cases at hand."

Of course, that's not the same as saying that there is in fact no "fundamental right to privacy." A quick reading of the Ninth Amendment, which Justice Scalia (of all  people!) referenced in the recent Heller v. D.C. handgun decision, discloses that "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people" – and if there's one right that's been consistent throughout the world for centuries, it's the right of people (well, hetero couples and singles) to have sex with each other (or just themselves) in the privacy of their own homes, hotel rooms, etc. [Emphasis added]

Judge Garza also faults the Reliable panel for failing to use the test for fundamental rights laid out in Washington v. Glucksberg, which formed part of the basis for the Williams decision.

"Under Glucksberg, a court begins a substantive due process analysis with 'a "careful description" of the asserted fundamental liberty interest,' and then asks whether the interest is 'objectively, "deeply rooted in this Nation’s history and tradition"'," Judge Garza wrote.

However, what that simplistic "analysis" fails to consider is the fact that Americans' sex practices – arguably among the most fundamental building blocks of human society – have rarely been discussed openly in public fora, making it nearly impossible to ascertain whether one or another practice is "deeply rooted in this Nation's history and tradition." For example, while gay rights have been becoming more and more discussed in public over the last 50 or so years – think "Mattachine Society " – if the Supreme Court had used the Glucksberg analysis in Lawrence, it could very well have found that the right to consensual sodomy failed that test. Indeed, Glucksberg shows up only in Justice Scalia's dissent to the Lawrence majority.

Finally, Judge Garza faults Reliable for refusing to kowtow to the "one state interest" that Texas argued in Lawrence: "that it [Texas' anti-sodomy statute] reflected the moral judgment of the legislature and thus the people."

"To establish a system of criminal laws, the legislature must make certain moral choices, defining what behavior is right and what behavior is wrong. Absent a constitutional prohibition, those decisions may and should express the moral judgment of the majority," Judge Garza argued, citing Barnes v. Glen Theatre, Inc.'s support for the State's power to "provide for the public health, safety, and morals." [Garza's emphasis] "Sexual behavior does not fall outside this principle simply because it is intimate and private in nature."

No, it falls outside the State's power because "morals" are indefinable in the law, and vary from culture to culture – and within cultures, vary from decade to decade if not year to year. For example, as recently as 1967, it was "morally" objectionable for a white person to marry a black one – until Richard Loving won his Supreme Court case in that year.

Finally, Judge Garza makes his sexual prejudices clear:

"Only recently has the [Supreme] Court gradually increased its own authority from Griswold [v. Connecticut, which struck down laws prohibiting the sale of birth control devices], to [Planned Parenthood v.] Casey [which struck down several Pennsylvania anti-abortion statutes], to Lawrence, at the expense of the People’s authority," Judge Garza wrote.

That would be the People's authority to pass laws which agree with Judge Garza's ideas of morality.

"And although the Court sought to cabin its authority in Glucksberg ... that decision still assumes that the Court has the authority to look outside the written Constitution to establish unenumerated substantive due process rights," Judge Garza continued. "Accepting this premise is to accept as constitutionally legitimate a constitutionally-enigmatic jurisprudence without constitutional limits. Reliable is a perfect illustration."

Of course, if the Ninth Amendment's language that, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the People" isn't a prescription to "look outside the written Constitution," it's hard to imagine what would be!

"The courts are the guardians of liberty," Judge Garza declared. "We must not forget, however, that the liberty we safeguard belongs not to us but to the People. By using the Fourteenth Amendment as a vehicle for creating unenumerated substantive due process rights, the Court abrogates the People’s right to establish the contours of their basic liberties and arrogates that power to itself."

Indeed; the high court should have used the Ninth Amendment to create – actually, recognize – such rights! In fact, the Ninth Amendment is precisely the reason why "the People’s right to establish the contours of their basic liberties" was never meant to be left up to majority rule: Because people have prejudices – certainly about all things sexual! – that may affect their ideas of what "rights [are] retained by the People," and the Constitution has long stood as a bulwark against such prejudices.

But the fact remains that Reliable conflicts with Williams, and while the refusal to accept cert in Williams was evidence to some legal minds that the high court feared having to refine the parameters of Lawrence, it will be under increased pressure to resolve the existing conflict between the Fifth and the Eleventh Circuits concerning sex toys.

But not everyone is optimistic about what the Supreme Court would do with Reliable.

"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," wrote legal commentator Eugene Volokh on his blog. "And this is so even though the government's arguments for the practical benefits of the law seem comparatively weak, or as to the supposed immorality of the conduct, largely conclusory. I think the majority on the Court will conclude that such conclusory moral arguments are adequate except when something more important to most people's lives is at stake (since probably no Justice accepts the libertarian constitutionalist notion that a broadranging liberty to do what one pleases so long as it doesn't directly enough hurt others is itself so important that it should be recognized as a constitutional right)."

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But for Sirkin, the possibility of the Supreme Court granting cert in Reliable points up another issue.

"It also goes to show that this upcoming election is really important because it will decide the makeup of the court, because Lawrence was decided 6-3," Sirkin noted. "O'Connor was a concurring opinion on equal protection grounds, but the majority was really 5-4, so you lose one vote because of Alito, but it keeps it at 5-4. But if we lose ... the only concern I have is that Kennedy was silent on the Williams case, and he authored Lawrence, so I don't know. What I do know is, we really don't want McCain putting new justices on the Supreme Court, as he almost certainly will have a chance to do."

Vote early and often.






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Mark Kernes

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