On Tuesday, Feb. 12, Texas' ban on the sale of sex toys was overturned by a three-judge panel of the Fifth U.S. Circuit Court of Appeals out of New Orleans. Special thanks go out to Louis Sirkin, the attorney for the case, and Reliable Consultants, Inc. and PHE, Inc, the plaintiffs. This decision contradicts the Eleventh Circuit Court of Appeals decision on the Sherri Williams case in Alabama. I asked FSC Board member and Legal Committee chair Reed Lee to prepare a brief analysis and Frequently Asked Questions piece for our members and the industry.
Free Speech Coalition Analysis and Frequently Asked Questions of the 5th Circuit Decision Overturning the Texas Ban on the Sale of Sex Toys
(Submitted for FSC by Reed Lee Esq.)
A panel of the United States Court of Appeals for the Fifth Circuit has invalidated the Texas statute banning the sale or transfer of devices designed or intended primarily to stimulate the human genitals. The ruling is grounded on the same constitutional privacy considerations which earlier led the Supreme Court to invalidate the Texas sodomy law (and similar laws in other states).
The panel majority's decision and reasoning are sound, and they deserve to prevail both in the Fifth Circuit and elsewhere. But conservative judges will likely be upset about the ruling (as they were about the Supreme Court's sodomy decision and about so many other decisions of importance to us).
So, just as the Sixth Circuit panel's recent 2257 decision is not likely to be the last word on the subject, we can expect more litigation about sex toys. In the end I think, both panels' decisions will be vindicated.
Frequently Asked Questions
1. Is now safe to sell novelties in Texas?
If the Fifth Circuit decides against rehearing, the Texas law will be invalid unless the U.S. Supreme Court steps in. But it will be a few weeks before we know anything about rehearing and several months, at least, if rehearing is granted.
2. What other states does this cover?
Texas, Louisiana (where the state Supreme Court already invalidated that state's sex toy law), and Mississippi.
3. What does this mean for Sherri Williams' case?
It means that Sherri Williams is a lot like Michael Hardwick. (Hardwick unsuccessfully challenged Georgia's sodomy law in the 1980's). They both bravely fought unconstitutional laws on constitutional privacy grounds. They both fought a bit ahead of their time. Unlike Mr. Hardwick, it looks like Sherri Williams will live to see her constitutional challenge fully vindicated. No one has struggled more assiduously than she has; and no one deserves vindication more.
4. Can Texas appeal?
Texas can seek rehearing in the Fifth Circuit or it can ask the Supreme Court to hear the case. In either case, the relevant court must agree. Neither move is a sure thing for Texas.
5. Can city and county jurisdictions in Texas impose sex toy bans?
If the current decision stands, local governments will not be able to replace the Texas statute. They too are subject to the United States Constitution.
6. Is this the beginning of the end for state sex toy bans?
More like the middle of the end, I think.
Other courts have struck down sex toy bans, so this most recent decision is less remarkable than it may seem. The real odd court out on this issue seems to be the Eleventh Circuit, which rejected Sherri Williams' constitutional challenge (identical to that which has prevailed in the Fifth) no fewer than three times over ten years.
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