NEW ORLEANS – Prominent First Amendment attorney H. Louis Sirkin won a stunning victory yesterday when a three-judge panel of the Fifth U.S. Circuit Court of Appeals overturned a Texas statute making it illegal to promote or sell sexual devices, and remanded the case for reconsideration in concert with its ruling.
"Because of Lawrence [v. Texas], which overturned Texas' anti-sodomy statute], 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," wrote Judge Thomas Morrow Reavley for the panel. "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. This conclusion is consistent with the decisions in Carey [v. Population Services Int'l] and Griswold [v. Connecticut], both cases involving distribution and use of contraceptives], where the Court held that restricting commercial transactions unconstitutionally burdened the exercise of individual rights."
"You've got to read the opinion!" Sirkin exclaimed. "It's absolutely everything that we could have ever wanted to develop from Lawrence. Whether it will be upheld, I don't know, but now there are three [federal] judges that have bought our argument: Judge Lancaster [who is presiding over U.S. v. Extreme Associates], and now Judge [Edward Charles] Prado and Judge Reavley, who was sitting by designation from the Eleventh Circuit."
The Eleventh Circuit, it will be remembered, is the Circuit which has consistently ruled against retailer Sherri Williams in her similar suit to legalize the sale of sexual devices in Alabama.
Texas' "obscene devices" statute has been on the books since 1979, when the state legislature also revised and expanded the scope of its obscenity law in response to the Supreme Court's ruling in Miller v. California. The Fifth Circuit opinion, in the case originally captioned Reliable Consultants, Inc. and PHE, Inc. v. Ronnie Earle and the State of Texas -- apparently, Texas Attorney General Greg Abbott's name has been substituted for Travis County DA Ronnie Earle in later pleadings -- notes a 1985 Texas Court of Criminal Appeals opinion which concluded that there was no constitutional right to "stimulate ... another's genitals with an object designed or marketed as useful primarily for that purpose." That decision led to the now-familiar situation in Fifth Circuit adult stores where vibrators, dildos and other novelties could be sold as long as they didn't too closely resemble a penis or vagina.
The Reliable Consultants case came before the U.S. District Court on a declaratory judgment motion. Reliable Consultants does business as Dreamer's and Le Rouge Boutique, operating four adult stores across the state which sell novelties, and according to the Fifth Circuit opinion, PHE, Inc. later entered the case as an Intervenor because it too wanted to sell sexual devices in Texas but feared prosecution if it did so.
Reliable and PHE argued that "many people in Texas, both married and unmarried, use sexual devices as an aspect of their sexual experiences," sometimes because of fear of disease contagion from intercourse and sometimes to treat sexual dysfunction. The district court, however, ruled that Texas' statute didn't violate the Fourteenth Amendment because it found that there was no constitutionally protected right to publicly promote obscene devices. The Fifth Circuit panel disagreed.
"The Plaintiffs’ claim is predicated upon the individual right under the Fourteenth Amendment to engage in private intimate conduct in the home without government intrusion," Judge Reavley wrote. "Because the asserted governmental interests for the law do not meet the applicable constitutional standard announced in Lawrence v. Texas, the statute cannot be constitutionally enforced."
"The right the Court recognized was not simply a right to engage in the sexual act itself," Judge Reavley continued, "but instead a right to be free from governmental intrusion regarding 'the most private human contact, sexual behavior.' ... [T]he Court expressly held that 'individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of "liberty" protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons.' The Court also carefully delineated the types of governmental interests that are constitutionally insufficient to sustain a law that infringes on this substantive due process right. Therefore, our responsibility as an inferior federal court is mandatory and straightforward. We must apply Lawrence to the Texas statute."
But for Sirkin, the ruling served to validate one of his long-held opinions.
"When I got the Hal Freeman Award in 2003," Sirkin noted, "I stood up and said, 'Guys, the future is Lawrence v. Texas on substantive due process,' and we've run with it, and we've been the only ones that have been able to convince anybody to follow it."
Indeed, perhaps the most notable effect that Lawrence has had for the judges who have embraced its wording and intent is to take away the government's (theretofore presumed) power to establish a moral code for the citizenry.
"The State’s primary justifications for the statute are 'morality based'," observed Judge Reavley. "The asserted interests include 'discouraging prurient interests in autonomous sex and the pursuit of sexual gratification unrelated to procreation and prohibiting the commercial sale of sex.' These interests in 'public morality' cannot constitutionally sustain the statute after Lawrence. To uphold the statute would be to ignore the holding in Lawrence and allow the government to burden consensual private intimate conduct simply by deeming it morally offensive. In Lawrence, Texas’s only argument was that the anti-sodomy law reflected the moral judgment of the legislature. The Court expressly rejected the State’s rationale by adopting Justice Stevens’ view in Bowers [v. Hardwick] as 'controlling' and quoting Justice Stevens’ statement that '"the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice."' Thus, if in Lawrence public morality was an insufficient justification for a law that restricted 'adult consensual intimacy in the home,' then public morality also cannot serve as a rational basis for Texas’s statute, which also regulates private sexual intimacy."
It was that exact alleged "interest in public morality" that the Eleventh Circuit claimed in overruling the District Court in the Sherri Williams case, and one can only speculate whether Judge Reavley, a Senior Judge of that Circuit, has now used the Reliable Consultants case to express his disagreement with the Eleventh Circuit panel that rendered its adverse opinion in Williams.
Texas also argued, in Reliable, that the statute at issue serves to protect "minors and unwilling adults from exposure to sexual devices and their advertisement," but the panel's majority found that that argument "does not justify such a heavy-handed restriction on the exercise of a constitutionally protected individual right" regarding children, and even less so regarding adults.
"The Court has consistently refused to burden individual rights out of concern for the protection of 'unwilling recipients'," wrote Judge Reavley. "Furthermore, this asserted interest bears no rational relation to the restriction on sales of sexual devices because an adult cannot buy a sexual device without making the affirmative decision to visit a store and make the purchase."
The Court also struck down the State's argument that allowing the sale of sexual devices would be "equivalent to extending substantive due process protection to the 'commercial sale of sex'."
"Not so," stated Judge Reavley. "The sale of a device that an individual may choose to use during intimate conduct with a partner in the home is not the 'sale of sex' (prostitution). Following the State’s logic, the sale of contraceptives would be equivalent to the sale of sex because contraceptives are intended to be used for the pursuit of sexual gratification unrelated to procreation. This argument cannot be accepted as a justification to limit the sale of contraceptives. The comparison highlights why the focus of our analysis is on the burden the statute puts on the individual’s right to make private decisions about consensual intimate conduct. Furthermore, there are justifications for criminalizing prostitution other than public morality, including promoting public safety and preventing injury and coercion."
Then, Judge Reavley got to the nub of the problem:
"Just as in Lawrence, the State here wants to use its laws to enforce a public moral code by restricting private intimate conduct," he stated. "The case is not about public sex. It is not about controlling commerce in sex. It is about controlling what people do in the privacy of their own homes because the State is morally opposed to a certain type of consensual private intimate conduct. This is an insufficient justification for the statute after Lawrence. It follows that the Texas statute cannot define sexual devices themselves as obscene and prohibit their sale."
Plaintiffs had also argued a First Amendment claim that advertising of the sexual devices is also protected by Lawrence, but the Court ruled that, "We decline to explore this claim because if it is necessary, it may be premature. ... We have held here that the State may not burden the use of these devices by prohibiting their sale. If other issues need to be pursued, the parties are free to do so on remand in proceedings consistent with this decision."
In conveying the ruling, Sirkin was quick to laud his associates and co-counsel in achieving the victory.
"Jenner & Block represented PHE in the case, and they did a fabulous job," Sirkin said. "I've got a couple of really talented young people with me now, and I'm very lucky to have them. I think I've been a good teacher, too, but they're really bright on their own."