On Valentine's Day 2007, in Williams v. Morgan, the 11th Circuit Court of Appeals upheld Alabama's law prohibiting the sale of sexual devices except for medical purposes. Almost exactly one year later, on Feb. 12, 2008, the 5th Circuit Court of Appeals reached the opposite conclusion in Reliable Consultants Inc. v. Earle, striking down an almost identical law in Texas.
The immediate effect of the Reliable Consultants decision is fairly limited, even in Texas, where most sex-toy retailers have found ways around the law or simply ignore it altogether. But if the 5th Circuit's decision isn't overturned by the U.S. Supreme Court, the long-term benefits, both inside and outside Texas, could be substantial.
The Reliable Consultants decision is a potential watershed for the adult retail industry because the 5th Circuit was able to understand one fundamental-and even obvious-truth that eluded the 11th Circuit in 2007. In the Williams case, the 11th Circuit acknowledged that, based on the 2003 Supreme Court decision in Lawrence v. Texas, the government cannot restrict people's right to own and use sex toys in the privacy of their homes. Having recognized that principle, however, the 11th Circuit decided that the Alabama law was not unconstitutional because it did not affect the private activities of Alabama residents. In the words of the 11th Circuit, Alabama's statute "forbids public, commercial activity" and therefore did not affect people's sexual rights.
In the Reliable Consultants case, the 5th Circuit was able to reach a conclusion that should be obvious to nearly anyone: The constitutional right to own and use sex toys in private doesn't have much meaning if no one has the legal right to sell them. Based on this admirable display of common sense, the 5th Circuit was able to see that Texas' ban on the sale of "dildos and artificial vaginas" was nothing more than an unconstitutional attempt to control people's private sex lives.
The 5th Circuit's acknowledgement-perhaps for only the second time in U.S. legal history-that private rights can be affected by restrictions of retail commerce represents a potential breakthrough for adult retailers for at least four reasons.
The Constitution affects local governments
Thanks to the 5th Circuit, retailers who have been thwarted in past attempts to open locations in hostile municipalities may have a new legal weapon. Even though it dealt with a state law banning the sale of sex toys, the Reliable Consultants decision applies to all governments and to any attempt to burden individuals' right to own and use sexual devices.
Although there are only four states (including Texas) that have a law prohibiting the sale of sexual devices, there are cities and counties that prohibit the sale of sex toys, either through outright bans or through ordinances that are so restrictive that they make it a practical impossibility to sell sex toys within their boundaries. Under the Reliable Consultants decision, outright bans be unconstitutional and more subtle attempts to keep adult retailers out of the community may be illegal if the practical effect is that it is difficult for people in a community to own and use sexual devices.
If, for example, residents would have to travel 50 miles to a neighboring town to buy adult toys because their city will not approve a permit for a local retailer, the city may be placing an unconstitutional burden on the sexual rights of its residents. Thus, under the Reliable Consultants decision, a retailer who wants open a location in that community would have a new avenue to challenge a city's unreasonable refusal to issue a permit or approve zoning for that location.
Sexual privacy probably extends beyond sex toys
Although the Reliable Consultants decision only deals with the sale of "dildos and artificial vaginas," its holding has potentially broader application. An obvious analogue to sexual devices is adult videos, which also are used primarily for sexual gratification in the privacy of the home. If the government can't stop people from buying sex toys, it seems likely that the government can't stop people from buying or renting sexually explicit DVDs, either.
Since 1969, the Supreme Court has recognized that people have a constitutional right to own and view sexually explicit materials in their own homes, even if those materials are "obscene." Now that the 5th Circuit has recognized that a private right to own a given item includes retailers' right to sell that item, both local and online retailers may have a new defense to criminal obscenity prosecutions. And there may be a new constitutional basis to challenge laws that restrict the sale of books and videos.
Federal courts seem to be increasingly sex-positive
The 5th Circuit is generally regarded as one of the two most conservative courts among the 12 federal courts of appeal. The well-established conservatism of the 5th Circuit makes it even more surprising that the Reliable Consultants opinion is based on sexual freedom alone and not-as other courts have done in the past-a concern about "medical treatment of sexual dysfunction." The refreshingly realistic and non-prudish decision seems to offer real hope that the federal judiciary might be coming out of the 19th century when it comes to sex.
Even the 11th Circuit's decision to uphold Alabama's sex-toy ban in the Williams case is more sex-positive than one might assume based on the outcome. In discussing the Alabama statute, the 11th Circuit called the Alabama legislature "misguided," "unwise," "foolish" and "suspect." Thus, even though the 11th Circuit ultimately concluded that it could not overturn the Alabama statute, it clearly didn't think much of the legislature keeping the state's residents from being able to buy sexual devices for their personal use.
Adult business may be leaving the First Amendment ghetto
For much of its history, sexually oriented business has relied on the First Amendment to protect its right to exist. The results of this fight have been mixed at best, with the Supreme Court finding new classifications of freedom of speech "marginally protected." The clear implication from the past 40 years of First Amendment jurisprudence is that the courts simply are not comfortable with the idea that sexual expression was something that the founding fathers wanted to protect.
In the Reliable Consultants case, the 5th Circuit deliberately passed on considering the First Amendment argument and decided the case on substantive due process under the 14th Amendment. Essentially, the 5th Circuit's opinion was based on its recognition that the Constitution prohibits the government from passing legislation solely for the purpose of trying to influence people's sexual morality. This rationale is becoming more and more common since the Supreme Court threw out Texas's anti-sodomy law in 2003 in Lawrence v. Texas.
Although it is still unclear how far substantive due process ultimately will be extended, the current trend certainly seems to be toward increasing the legal protections of sexually oriented businesses and the people they serve. And that would be good news for everyone.
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Brent E. Dyer is an attorney with Looper, Reed and McGraw in Dallas, Texas. He is an advocate for sexually oriented businesses' constitutional rights to operate and be subject only to reasonable regulations that apply to other industries. This article is for informational purposes only and should not be considered legal advice. Specific legal issues should be discussed with qualified legal counsel.
