5th Circuit Denies Petitions for Rehearing in Sex-Toy Case

BATON ROUGE - The Fifth Circuit U.S. Court of Appeals has denied petitions by Travis County (Tex.) D.A. Ronnie Earle and intervenor-defendant State of Texas to rehear the Reliable Consultants case, in which a three-judge panel found that the sale and use of adult novelties for purposes of sexual stimulation was protected by the Fourteenth Amendment.

"Treating the Petition for Rehearing En Banc as a Petition for Panel Rehearing, the Petition for Panel Rehearing is DENIED," wrote the panel of judges who originally struck down Texas' obscene device law, speaking for the majority of the Circuit. "The court having been polled at the request of one of the members of the court and a majority of the judges who are in regular active service and not disqualified not having voted in favor, the Petition for Rehearing En Banc is DENIED."

"What that means is that by my count, 10 of the judges voted against the rehearing and eight voted for it," said attorney Clyde DeWitt, once a prosecutor in Texas. "The 'no' votes would include any of the eligible judges who didn't want to take a position one way or the other; they're then automatically counted as votes not to rehear the case."

Of the eight who voted to rehear the case, however, seven chose to author or join in dissents expressing their disagreement with the original panel's ruling. Most of the dissenters' objections raised two issues: 1) that the original panel should not have expanded the substantive due process rights acknowledged under the Supreme Court's decision in Lawrence v. Texas, and 2) the panel should not have overruled an earlier Fifth Circuit case, Red Bluff Drive-In, Inc. v. Vance, which in 1981 had upheld Texas' anti-sex toy law.

However, according to First Amendment attorney H. Louis Sirkin, who argued the Reliable Consultants case before the Fifth Circuit, a recent ruling by the Texas Court of Appeals may prevent the federal circuit ruling from being applicable to anyone except Reliable Consultants' own stores, or mail order shipments to Texas from PHE, Inc. (Adam & Eve), or products sold in PHE's Texas stores.