“The fact that we got two judges from the second highest court in the land to agree with us is tremendous,” said Jennifer Kinsley of Sirkin Pinales & Schwartz , who represented Reliable Consultants in the case. “It’s a very emotional day for our clients.”
Asked whether she expected the state to request an en banc (full circuit) review of the panel’s decision, Kinsley said “it’s anybody’s guess, but I wouldn’t be at all surprised.”
Reliable Consultants does business in Texas under the names “Dreamers” and “Le Rouge Botique.” Joining the case as a plaintiff after it was initiated by Reliable was PHE, Inc. — better known within adult industry circles as Adam & Eve.
Kinsley said that she thought the ruling was very good news for Williams, as the Alabama statute that Williams has challenged is “virtually identical” to the Texas statute that the 5th Circuit shot down.
“There’s really no intellectually honest way to distinguish between them,” Kinsley said of the two statutes.
Reed Lee of JD Obenberger and Associates, who represented Williams in her challenge of the Alabama statute, concurred with Kinsley, and said that the 5th Circuit’s decision was clearly “in conflict” with the 11th Circuit’s decision in Williams’ case.
“The [5th Circuit] panel majority got it right,” Lee told XBIZ. “This would be pretty straightforward and unremarkable, but for Sherri William’s troubles in the 11th Circuit.”
Lee said that the 5th Circuit panel correctly interpreted Lawrence vs. Texas, the landmark case that resulted in the state’s anti-sodomy law being struck down as unconstitutional.
Asked why it has taken so long for some courts to reach the conclusion that “obscene device” laws are unconstitutional (similar laws have already been struck down in Colorado, Georgia, Kansas and Louisiana), Lee said that the complex nature of the legal issues involved render progress slow.
“This area of substantive due process is a difficult area of law,” Lee said. “It’s because it is so difficult that the courts move so slowly.”
Kinsley said that slow process makes the efforts of plaintiffs like Reliable and Williams all the more remarkable.
“We really appreciated the support and backing of our clients,” Kinsley said of Reliable, adding that their business probably did not stand to profit financially all that much from the law being overturned. “They just felt strongly that their customers were being infringed upon, so they challenged this law and have seen that challenge through, every step of the way.”
As for Williams, whose case the U.S. Supreme Court declined to hear last year, Lee said that the 5th Circuit’s ruling this week — assuming it is not overturned by way of an en banc rehearing — “dramatically raises the chances” that the nation’s highest court will at last hear the case.
“The Supreme Court sees one of its primary roles as resolving splits between the circuits,” Lee said.
If the case does reach the Supreme Court, Lee said he’s optimistic that the court will uphold the 5th Circuit panel’s reasoning, especially in light of the court’s ruling in the Lawrence case.
“Five of the justices who decided Lawrence are still there,” Lee noted. “It’s very hard for me to imagine that the same justices who reached the conclusion that a law against sodomy is unconstitutional would decide that a law against sexual devices is not.”
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