In 1973 the state legislature passed Section 43.21 of the Texas Penal Code which, in part, prohibits the sale or promotion of “Obscene device[s]” mean[ing] a device including a dildo or artificial vagina, designed or marketed as useful primarily for the stimulation of human genital organs." Section 43.23 of the code deals with promotion ("A person commits an offense if he…possesses with intent to wholesale promote any obscene material or obscene device. A person who possesses six or more obscene devices…is presumed to possess them with intent to promote the same."). This section carried higher penalties, and for this reason, those businesses that traded in items covered under the act usually marketed them as “novelties” or "educational items.
Two companies filed suit to declare the Texas Statute unconstitutional and the 5th Circuit Court of Appeals overturned the statute on February 12, 2008 by a vote of two to one. In Reliable Consultants v. Abbot (5th Cir. 2008) (Texas), the court held that “the statute has provisions that violate the Fourteenth Amendment of the U.S. Constitution.” The majority opinion stated, “Because of Lawrence, 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. 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.”3
The State of Texas, through Attorney General Greg Abbott, argued that the state has a right to regulate morality, and has legitimate reasons for the ban, which include “discouraging prurient interests in autonomous sex and the pursuit of sexual gratification unrelated to procreation.” AG Abbott has filed a petition for the Circuit Court to rehear the argument en banc.” On August 1, 2008, the Fifth Circuit denied the State’s request. This refusal upholding the decision to overturn the Texas ban created a split between federal circuits in light of the 11th Circuit decision to uphold the nearly identical Alabama law. Although the Supreme Court denied certiorari in the Alabama case in 2007, this 2008 decision may compel SCOTUS to hear a future challenge.
Constitutional considerations if SCOTUS grants certiorari:
Did Lawrence recognize a fundamental right to total sexual autonomy, including private sexual activities between consenting adults, such as the use of sex toys? Or does Lawrence merely recognize a liberty interest?
If there is a fundamental right, then a court must apply a strict scrutiny standard to any law that infringes on this fundamental right. Under a strict scrutiny standard, it is doubtful that a state’s interest in public morals would be sufficient to sustain a law infringing on a fundamental right to sexual privacy and autonomy. It is also doubtful that the Alabama ban would be strictly tailored enough to survive strict scrutiny review.