Friday, February 15, 2008

The Right To Sex Toys

The 5th Circuit Court of Appeals rules that a Texas law banning the sale of sex toys is a violation of the 14th Amendment right to privacy, following the Supreme Court's Lawrence decision of 2003 which found state laws againast sodomy to be unconstitutional. (Cato's blog has a bit on the decision here.) And for the first time in ten months I'm actually interested in reading a judicial opinion- not because it's about sex toys but because it's a substantive due process case.

I'm actually going to take the time to read the decision this weekend (especially seeing as there's a circuit split which will likely lead the case into the Supreme Court sometime soon), but here are just a few brief thoughts. Back in 2003, Lawrence vs. Texas was decided based on the principle that the rights of adults to privacy in the bedroom were not outweighed by states interests in promoting morality. My biggest problem with the decision- along with the dissent- was the way the majority opinion danced around the Constitutional issues. The majority defined the issue as a question of a right to privacy, while the dissent placed the issue into a much narrower context. As I've blogged about before- which I can't find at the moment- I have a big problem with the notion of a Constitutional right to privacy. As a legal matter, such a right ends up being mushy, undefinable, and subject to the whims of the judiciary. Privacy in the bedroom seems like an easy call to make, but the problem is, where in the Constitution does it give us any guidance as to what is private and what is not.

When it comes to sex toys, there's an additional problem- unlike the consensual activities of two people in the bedroom, purchasing a sex toy is a commercial transaction. How do you distinguish- on privacy grounds- between purchasing a sex toy for private use in the bedroom and purchasing marijuana (for example) for private use in the bedroom? The real difference is the government's purpose for the law, which on one hand is based on morality and on the other hand is based on personal health. And yes, there is a difference there, although I do think it's much more fuzzy than most people would think. And more importantly, in terms of legal doctrine, where does it say (in either case law or the Constitution) that we determine the level of judicial scrutiny based upon a legislature's motives in passing law?

Should be a good weekend.


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