Ed Brayton is a freelance writer and speaker. He is the co-founder and president of 
Just in time for Valentine's Day shopping, a 5th Circuit Court of Appeals panel on Feb. 12th overturned a Texas law outlawing the sale of sexual devices like dildos and vibrators by a 2-1 vote. See the full ruling here. The Texas statute banned the sale of any device "designed or marketed as useful primarily for the stimulation of human genital organs." Nice to know that they exempted doggy dildos in the law, isn't it?
This case is a perfect illustration of a legal truism: the more narrowly the court states the issue in the case the more likely they are to find no constitutional basis for overturning it; the more broadly the court states the issue in the case the more likely they are to find that constitutional basis. In this case, the state of Texas proposed that the court should state the issue narrowly:
The State proposes a different right for the Plaintiffs: "the right to stimulate one's genitals for non-medical purposes unrelated to procreation or outside of an interpersonal relationship."
In the 1986 case Bowers v Hardwick, a case that involved an anti-sodomy law in Georgia, the Supreme Court stated the legal right at issue in the narrowest possible sense - "a fundamental right to engage in homosexual sodomy." If you're looking for a right stated that specifically, you are of course not going to find it in the Constitutional text. In the 2003 Lawrence v Texas ruling, the court overturned Bowers and stated the issue much more broadly:
To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse. The laws involved in Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home.
It was the Lawrence decision that guided the 5th circuit in this case, and rightly so. David Kopel of the Volokh Conspiracy and Glenn Reynolds, the infamous Instapundit, wrote a law review article back in 2000, even before Lawrence came down, arguing that such laws were unconstitutional. Cue the howling about "judicial activism" in 3, 2, 1....
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Comments
How can this be an issue worthy of any discussion in the 21st century?
But then there are drug laws and other stuff like that make no sense, so silly me - why ask.
Oh well - issues that excite your political base, create bucks for the established para-military institutions (e.g. war on drugs), and that make you look like a hardworking, upstanding guardian of the republic certainly trump issues that really buy society something if you solved them. But real work and real courage and real morality are just too hard for politicians - I know.
Posted by: ConcernedJoe | February 16, 2008 10:05 AM
So we should be hearing from Bill O'Reilly about how the 5th District is just as "wacky liberal" as the 9th any day now, eh?
Posted by: dogmeatib | February 16, 2008 10:14 AM
Nice to know that they exempted doggy dildos in the law, isn't it?
Well, the cattle industry might be in trouble if they didn't limit it to humans (stud bulls rarely see the cow these days).
Seriously, how can these prudes, with a straight face, try to regulate whether people can use a little extra technology when masturbating? Next you'll need proof of age to purchase kleenex....
Posted by: Eamon Knight | February 16, 2008 10:44 AM
I live in Texas, and I've never heard of this law. I will never cease to be amazed at how some people just can't seem to leave other people alone. Baffles me every time. Secondly, I'm scared that there was actually a dissenting judge here.
Reading the ruling, the dissenting justice seems to partially agree, but I can't follow her logic -- it's asinine. She seems to be saying "This can't be reversed on 14th amendment grounds because the statute isn't explicitly forbidding the private conduct, only forbidding the sale of the devices in public".
So, uh, that's like saying "Forbidding the sale of guns isn't unconstitutional -- we're not saying people can't own them, they just can't buy them". I bet $1 to $100 that this judge would be against gun control though.
Effin' idiots.
Posted by: Braxton Thomason | February 16, 2008 10:59 AM
There were a lot of silly things about that law. First, there was an exemption that allowed those devices to be sold for educational purposes, so sex shops did stock them, but had to be very careful as to what they said about them when selling them.
Also, there are plenty of sex toys that don't stimulate the genitals, many of which, no doubt, that would offend the sensibilities of sensitive Texans much more than the odd vibrator would. And they could all be sold legally and openly anyeay, which makes a complete mockery of the whole issue.
Posted by: tacitus | February 16, 2008 12:33 PM
Is it too cheap a joke to say that, if we had known about this law eight years sooner, we might have been spared a Bush presidency?
Posted by: John Pieret | February 16, 2008 2:36 PM
"The State proposes a different right for the Plaintiffs: "the right to stimulate one's genitals for non-medical purposes unrelated to procreation or outside of an interpersonal relationship."
Who is the state to tell anyone anything about such a private matter? How can the State give us rights that we already have in the Constitution? This is scary when the States start deliniating what our rights are.
Posted by: King of Ireland | February 16, 2008 2:48 PM
So Bush can finally return home... :3
Posted by: Azkyroth | February 16, 2008 2:48 PM
"So Bush can finally return home..."
My vote for most hilarious comment on here for the month.
Posted by: King of Ireland | February 16, 2008 2:54 PM
Which as you know is the wrong way to look at the issue in the first place. It is not: "Can we find this right enumerated in the Constitution?" Rather it is: "Can the state show that it has a compelling reason (protecting the rights of others) to regulate this?"
Clearly there is no compelling reason whatsoever for the state to regulate the sale of sex toys, at least beyond insisting that they be safe to use, e.g. not made of toxic materials or likely to cause electrocution etc. (fill in your own jokes here).
Posted by: Troy Britain | February 16, 2008 3:14 PM
It is interesting that the court struck the Texas regulation down as unduly burdensome under substantive due process. This action absolutely invalidates the Texas prohibition as to everyone. Theoretically, the court had followed O'Connor's Equal Protection approach for a more middle-conservative approach. Or it could have found the prohibition unconstitutionally over broad because it unnecessarily burdened medical or marital use of a dildo. Instead, it went with the broadest approach which I personally agree with both from a legal view point (this is how to properly apply Lawrence) and a personally as well.
Posted by: RPeters | February 16, 2008 3:26 PM
If you're looking for a right stated that specifically, you are of course not going to find it in the Constitutional text.
Indeed. I miss the ninth amendment :(
Posted by: Coin | February 16, 2008 4:06 PM
Why does this stuff always happen in the South? There has been so much in migration into the South from other parts of the country for the past 40 years, but it's still old timey hick shit going on.
Posted by: soboco | February 16, 2008 4:29 PM
I am still waiting to find one of the various social conservative leaders or organisations commenting on the decision. Nothing yet, but when I do see it I expect to be quite entertained.
One of the origional justifications for the ban (I hear) was that the posession of sex-toys would leave people with no reason to get married, and thus no children would be born. Along with the standard 'offense to public morals' and 'crimes against nature' lines.
Posted by: Suricou Raven | February 16, 2008 6:53 PM
Did someone write 9th amendment? An opportunity to remind people of the "originalist" Scalia on the DofI and 9th amendment. Here he is in a dissent from Troxel v. Granville and I quote:
"In my view, a right of parents to direct the upbringing of their children is among the "unalienable Rights" with which the Declaration of Independence proclaims "all Men ... are endowed by their Creator." And in my view that right is also among the "othe[r] [rights] retained by the people" which the Ninth Amendment says the Constitution's enumeration of rights "shall not be construed to deny or disparage." The Declaration of Independence, however, is not a legal prescription conferring powers upon the courts; and the Constitution's refusal to "deny or disparage" other rights is far removed from affirming any one of them, and even farther removed from authorizing judges to identify what they might be, and to enforce the judges' list against laws duly enacted by the people."
Where Mr. Original's meaning came up with some rights being OK and some others not being OK is left to our imagination I guess since he references zilch.
I have little doubt where he would stand on this case that Ed presents us and I highly doubt it would be for "the people".
And I will state again, in my best Keith Olberman ridin' his highest, whitest horse voice, "No Justice SCALIA, (spittle flying on all caps), you don't have to find our rights, we do expect you as a judge to find a numerated power that justifies denying our rights - SIR."
Doubly ironic because he supposedly rejects using the DofI as a source guide for rights in other opinions, it's hard keeping up with a hypocrite.
Posted by: Michael Heath | February 16, 2008 7:30 PM
The prudes in Texas should outlaw hands as well. I've had sex with my hand many, many times over the years. In fact, I would say in the absence of my hand, I may have been driven into a bad relationship, which if Siricou is correct, would be fine by these people.
Posted by: soboco | February 16, 2008 8:05 PM
"The State proposes a different right for the Plaintiffs: "the right to stimulate one's genitals for non-medical purposes unrelated to procreation or outside of an interpersonal relationship"
So the Plaintiff CAN be a wanker, what about the other side? -DJ
Posted by: DingoJack | February 16, 2008 9:30 PM
Um ... exactly what does this post have to do with the subject of science? I thought Scienceblogs were supposed to be ... science ... blogs. I don't get it. This sort of post seems to suggest you find science too boring to bother with. Is that the case?
Posted by: Curtis | February 16, 2008 11:16 PM
Curtis - you may notice that Ed's blog is called Dispatches from the Culture Wars. I could be wrong but this post seems to fall under that rubric...Or is your comment really about silencing people you don't agree with?
Posted by: afarensis, FCD | February 16, 2008 11:48 PM
Jesus Christ, what is WRONG with Texas? And what the fuck are all the Texan women doing with themselves?
Posted by: Jacob | February 17, 2008 12:19 AM
Oh, yes, Afarensis, I'm in favor of sexual repression. Isn't everyone? But the SUBtitle of this blog says something about the interface between SCIENCE and some other stuff. Again, where's the science? This is a recurring theme on these supposed SCIENCEblogs, that the most popular items are this sort of cheesy stuff that has nothing to do with science. Not that there's anything wrong with that. It just seems to say that science, by comparison, is dull. Just trying to make a point here.
Posted by: Curtis | February 17, 2008 2:32 AM
I have yet to see a single conservative organisation, or even a mere blogger, comment on this case.
Collective embarassment, perhaps?
Posted by: Suricou Raven | February 17, 2008 10:52 AM
Curtis,
Would you prefer to talk about the biological relevance to male and female orgasm? Its a very interesting topic; male orgasm is fairly easy to understand in a evolutionary context, female orgasm not quite as easy, though a lot of fun to investigate. Or how about the scientific evidence that suggests regular orgasms (with or without a partner) can lead to longer lives, fewer mental problems, and all over greater happiness (a term that is frought with problems of interpretation). Or how about the idea that these retards in Texas have thrown out the science behind pair-bonding in human apes (especially that part dealing with sexuality) to enforce their idea of puritanicalism and what that means for a country already in dire straight because of its scientific failures.
Personally, I like Ed's blog topics as they can relate to science just fine. Your narrow interpretation is boring and out of place. As a scientist, I can enjoy discussions far ranging and recognize their impact on the science that I enjoy; how about you?
Posted by: Scott Reese | February 17, 2008 11:50 AM
See, this sort of thing, IMHO, demonstrates the fundamental philosophical difference between libertarian 'conservatives' (say, Ed) and Republican conservatives who claim to be libertarian (say, Ron Paul). Libertarians see the conflict between freedom and authority as one between government and the individual; anything an individual might want to do, no matter how petty, is a right unless the government (one of limited and enumerated powers, ideally) has been explicitly granted the right to regulate it. 'Federalism' is irrelevant in this worldview; if a law is an unjust violation of individual rights, it's unjust whether on the federal, state, or local level.
Republican 'libertarians', on the other hand, understand the conflict as one between different levels of government. Rights are not vested in individuals(*), but in 'the people', ie, state governments. The federal government, and only the federal government, is one of limited and enumerated powers; state governments have essentially unlimited police power, restricted (unjustly, in many conservatives' views) only by those Constitutional amendments that have been explicitly incorporated by the Supreme Court. Thus, individuals don't have a 'right' to engage in homosexual acts, or have an abortion, or burn a flag; rather, it's 'the people' who are deprived of their rights when their ability to punish such acts is limited by the federal government and the courts.
I think it's undeniable, from an originalist standpoint, that the latter option is the one believed in by our Founding Fathers. The Fathers didn't fight for an end to taxation, remember, but an end to taxation without representation; the Puritans didn't flee England so that everyone could worship as he or she pleased, but so they could live in a community that enforced their moral values; the First Amendment begins 'Congress' (not 'government') 'shall pass no law' and so on. Scalia, then, is absolutely correct when he argues that the 'right' in question is the right for the people of any given state to, freely and democratically, choose what rights will be granted to individuals and what laws they will live under, without any federal-level interference by Congress or activist judges inventing 'individual rights' that nullify the genuine and fundamental right of a democratic people to govern itself.
Shorter me: the 5th Circuit is wrong; based on a flawed Constitutional interpretation and an invented 'right to privacy', it has deprived the people of Texas of the right to make their own laws.
(*) except for the Second Amendment right to bear arms, because of the unique circumstances surrounding that Amendment.
Posted by: ithaqua | February 17, 2008 12:39 PM
Curtis, how is this post not a "Dispatch from the Culture Wars?". Or how is this not about the interface of Science, Religion, Law and Culture? I'd also like to know where it is written that we ScienceBloggers can't express political opinions?
Posted by: afarensis, FCD | February 17, 2008 12:57 PM
I am always perplexed by people that feel 'misled' by the name of this blog. If you don't like it, go read something else.
But I'm even more perplexed by people that take the time to respond by speculating that the original poster was trying to squelch opinions he doesn't agree with.
Scott and afarensis take umbrage about a comment left by some random, anonymous guy about the content of someone else's blog.
I can't imagine why anyone would give such comments a second thought, much less a detailed analysis about why the commentator is wrong.
I am actually quite fascinated about why a person might do this. There is probably some interesting psychological term for this phenomena. Maybe a 'transferred sense of self-righteousness'?
Posted by: David C. Brayton | February 17, 2008 6:45 PM
Ithaqua:
Your conclusion about the founders' intentions does not follow from what you have written.
The fledgling republic tried ending taxation, at least at the federal level, in the Articles of Confederation. It was one of the reasons said Articles didn't work. That's why we have the Constitution.
Those who initially fled England for this reason had been dead for most of a century before the constitution was adopted; their views were generally not reflected in the document or in the writings of the founders regarding it, and those who shared them seem to have been a small minority around the time of the Revolutionary War. No rational person considers the personal aspirations of people who've been dead for over a century to create a binding moral obligation to behave in a certain way in a different situation.
1) Under the U.S. Constitution, only the legislature can pass ANY law, at least for the technical definition of law. Therefore, it is unnecessary to state that the Executive or Judiciary may also not pass such laws.
2) The 10th Amendment and other portions of the Constitution refer to "the States" and "the People" in a fashion that is inexplicable if one postulates that the founders considered "the States" and "the People" to be equivalent.
3) Article VI of the Constitution establishes the Constitution with its amendments and the laws passed by the federal government as "the supreme law of the land," a statement which is manifestly at odds with your interpretation of the intended relationship between state and federal governments.
4) The 14th Amendment* extended the provisions of the Bill of Rights to the state governments. Whether this was in line with the thoughts of the original founders is irrelevant - or would you advocate a return to slavery, since the founding fathers didn't prohibit it in the original text of the constitution?
5) Your interpretation of the founders' intentions is difficult to reconcile with their writings on the subject and the political theory from which they were working (notably Thomas Paine's ideas and John Locke's version of the Social Contract concept).
*The relevant clause reads as follows:
On another note, David C. Brayton:
Under what circumstances would you consider it sensible to give a detailed analysis of why someone is wrong, where do you draw the line, and why there? (And, for that matter, the comment that the above quote was taken from differs from the sort you're decrying in it...how, exactly?)
Posted by: Azkyroth | February 17, 2008 11:42 PM
David -
I can't imagine why anyone would give such comments a second thought, much less a detailed analysis about why the commentator is wrong.
What I can't imagine, in spite of doing the same damn thing myself, is why someone would write a response such as yours, to something like the aside they went on.
Posted by: DuWayne | February 18, 2008 3:36 AM
David - in my case the reason is much simpler. I hear that criticism quite frequently and it is starting to get on my nerves. The fact that some of us work for ScienceBlogs and/or blog mainly about science doesn't mean we should be apolitical, nor does it mean we have to stick strictly to science.
Posted by: afarensis, FCD | February 18, 2008 8:01 AM
curtis said: Um ... exactly what does this post have to do with the subject of science? I thought Scienceblogs were supposed to be ... science ... blogs. I don't get it. This sort of post seems to suggest you find science too boring to bother with. Is that the case?
At another blog I frequent, a commenter had the perfect reply to this kind of complaint.
"You're the kind of person who goes to Burger King and bitches that they serve fries."
Posted by: Shygetz | February 18, 2008 8:33 AM
ithaqua is ignoring one tiny little detail: the 14th amendment. He's certainly right that the constitution as originally written embraces the latter option, with states having the authority to violate natural rights and the Federal government powerless to stop them. The civil war and the amendments that followed ended that by extending the reach of the Bill of Rights to state actions. That's why the Ron Paul crowd is so stridently opposed to the 14th amendment, because they know that after its passage their constitutional theory is rendered inoperable and the first option ithaqua lists becomes the correct constitutional interpretation.
Posted by: Ed Brayton | February 18, 2008 9:22 AM
A couple of quibbles Ed., one of which we've debated here before, where it appears neither of us has been able to convince the other.
Re your statement, "the constitution as originally written embraces the latter option, with states having the authority to violate natural rights and the Federal government powerless to stop them."
Certainly we can agree that much of the precedent set by SCOTUS and subsequent legislation was interpreted and written consistent with your statement. The federal government from a practical perspective, for the most part, was powerless to stop state's limiting and prohibiting the practice of our civic rights, including the Bill of Rights.
However, one can make an argument that the original meaning of the Constitution obligated the federal courts to defend individual rights against state power. See Barnett's "presumption of liberty" argument, the reason I sent you his latest book, and "Chisholm v. Georgia" 1793, that led to the 11th amendment to attempt to continue to allow states to deny individual rights. Barnett also writes a great paper on Chisholm I can send you if you don't have it.
My argument is that, from a foundational principle perspective and from the plain meaning of the text with the exception of slavery, we did reserve our rights against all government power except that which was delegated by the U.S. Constitution, but that this reservation was imperfectly applied as a compromise to gain ratification from states leery of losing their perceived power to enforce slavery, state religious establishments, and denial of rights to certain ostracized groups of people (e.g., non-whites, Jews, Catholics, women, etc.). Thus, as practiced your right, I would argue "as originally written", you are not completely correct.
In regard to your Ron Paul crowd remark. I would agree that the informed supporters of Ron Paul's support group hold this position. However I think many of the young people and active military support he gets is ignorant of Paul's position on the 14th amendment and his political objectives for holding a view similiar to Justice Thomas'.
My rejection of Paul mirrors your reasons for rejecting him. Most of his supporters, especially the younger ones, are not aware of the nuance of his constitutional positions that should cause all lovers of liberty to pause. Thus, I'm happy for the support he gets from younger idealistic voters and believe this movement will spur more interest in constitutional matters where these people will end up more in line with what you argue for in your blog than Paul's position once they've educated themselves.
Posted by: Michael Heath | February 18, 2008 10:35 AM
DuWayne--I told you exactly why in my original post. I'm truly fascinated why these folks take personal umbrage at random, off-topic, anonymous posts that have absolutely nothing to do with them. Why would anyone get upset at those posts?
Posted by: David C. Brayton | February 18, 2008 11:00 AM
David -
I know you did. I just found it rather amusing to extend the irony a little. I hope you didn't take it as my being rude. I just find concepts like an infinite regression terribly amusing.
I actually find the psychology behind these things rather fascinating myself. Not just the random OT rants, but people who (like myself) can get pretty singularly obsessed with a line of argument. While I have a pretty fundamental grasp of why I do it, I have a hard time believing that everyone who does the same thing have the same neurological issues that I do.
Posted by: DuWayne | February 18, 2008 11:42 AM