Texas “obscene device” law unconstitutional

Texas had a long standing ban on selling “obscene devices” (vibrators etc). Yesterday, the 5th circuit corut of appeals correctly ruled that statute is unconstitutional. The judges cited the Lawrenece (striking the Texas sodomy laws) case in their decision.

Texas- Autonomous sex threatens us all.
Texas argued that the State was “discouraging prurient interests in autonomous sex
and the pursuit of sexual gratification unrelated to procreation and prohibiting
the commercial sale of sex.”
Texans- Do we want our police working to protect procreation? Last time I checked there seemed to be plenty of Texans around. I’m not sure how this law supported procreation. Are Texans choosing not to have children because of sex toys? If so, I don’t think we should encourage them to have kids.

I am embarrassed for the lawyer the State sends to defend this idiocy. The prostitution angle was a creative reach by the State. However, it was summarily rejected.

The courts cite the 14th Amendment as the source of an invididuals right to privacy. Privacy rights should come from the 10th Amendment. The language of 10 is clear. However, that line of thinking has never been embraced.

You can’t legislate morality. Really, you can’t.
The judges also ruled that promoting morality is not a legitimate reason to criminalize activity. From the decision

The State’s primary justifications for the statute are “morality based.”
…These interests in “public morality” cannot constitutionally sustain
the statute after Lawrence.To uphold the statute would be to ignore the
holding in Lawrence and allow the government to burden consensual private
intimate conduct simply by deeming it morally offensive.
The fact that the governing majority in a State has
traditionally viewed a particular practce as immoral is not a sufficient
reason for upholding law prohibiting the practice.

The pace for getting rid of stupid laws is glacially slow. However, any criminal justice resources that were being wasted on “obscene device” prohibition can now be wasted on drug addicts.

H/T to the TDCAA message board for posting this ruling.

Update- The future
I consulted with my appellate expert. He believes this case will be ruled on again by the 5th Circuit “en banc” (where the entire court hears an opinion, as opposed to a 3 judge panel). He also believes that this case will be heard by SCOTUS.

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4 responses to “Texas “obscene device” law unconstitutional”

  1. <img src="http://www.blogge says:

    Robert: Since you are a Red Raider, I’m sure you heard about the Lubbock Police Dept “raid” on a lingerie shop. Seems they sold the undercover cop a vibrator. And they had MORE of them in the back room. OMG. They ARRESTED the person. The DA declined to take the charges. This was pretty soon after they arrested ALL of the Chippendale dancers, and the manager of Jake’s Back Room, a sports bar & grill. If they strike down all these morality laws, I just don’t know what LPD will do. Hope they don’t shoot up another neighborhood with assault rifles, like they did a few years ago when a despondent nut holed up in his house and they got the swat team and the TANK (yes, TANK, as in Sherman) to roust him out.

  2. <img src="http://www.blogge says:

    I heard about the Chippendale bust. These police officers should all be fired. If the have nothing better to do, they are not needed.

  3. <img src="http://www.blogger.c says:

    I think the relevant Amendment is the 9th, and not the 10th.”The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

  4. <img src="http://www.blogger.c says:

    I had a case one time where it was alleged to be “lewd” that my client touched another man’s breast. The trial judge, who is a vicious, frightened, misguided person, denied my motion to quash, but then told me in chambers she agreed with my position. She just wanted the court of appeals to say so, not her. The client did not want to pay for the appeal, and had more important things to worry about, so took a deal for a class C reduction.

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