Appeals Court Denies En Banc Rehearing in Texas Sex Toy Case

Tom Hymes
NEW ORLEANS, La. — A federal appeals court yesterday denied a petition for a rehearing en banc in Reliable Consultants vs. Earle, a case that involves a 1970s Texas law that makes it a crime to promote or sell sex toys in the state that was struck down as unconstitutional in February by a three-judge panel of the same court.

The ruling came down 10-7, with several judges providing written dissent of the majority decision. The original 2-1 ruling by the 5th U.S. Circuit Court of Appeals panel referenced a 2003 U.S. Supreme Court decision in Lawrence vs. Texas that struck down a Texas law that prohibited private consensual sex among people of the same gender, establishing a legal right to privacy that today’s denial embraces.

Indeed, several dissenters took specific umbrage at the fact that the court today upheld a decision that they believes inappropriately advances a “personal liberty interest” as enunciated in Lawrence to a commercial right to promote sexual devices.

"The liberty interest announced in Lawrence protects only adult, consensual, private conduct,” Judge J. Garza wrote in dissent. “The statute in Reliable does not prohibit sexual conduct, private or otherwise. Nor does it impermissibly burden any personal right. It prohibits only commercial conduct, e.g. manufacturing, selling, or advertising sexual devices, including dildos and artificial vaginas, which the people of Texas, acting through their elected representatives, have deemed to be particularly immoral, offensive, or otherwise warranting commercial prohibition.”

Industry attorney Clyde DeWitt was predictably pleased with the decision, adding that it would be unwise to attempt to predict whether the Supreme Court will grant the case. If it does, he said, it will be to resolve a situation where two federal appeals courts are at loggerheads regarding identical laws. An 11th U.S. Circuit Court of Appeals decision in 2004 upheld an Alabama law that also makes the sale of sex toys a crime.

“It’s final in the 11th Circuit, and the Supreme Court did not want to hear that case,” DeWitt told XBIZ, “Now it’s final here. While you can almost be sure Justices Scalia, Roberts, Thomas and Alito all are going to disagree with this decision, for tactical reasons one or more may not want to hear this issue just yet.

“I think one argument for those opposing certiorari would be that this is not an important case precisely because it has been resolved in the two circuits that cover all the states that have such a law. If this case it taken, however, it will be to test the limits of Lawrence, but there will surely be other cases that test the limits that are going to have far more compelling social arguments one way or the other.”

H. Louis Sirkin of Sirkin, Pinales & Schwartz, who, with Jennifer Kinsley, represented Reliable Consulting, also was very pleased with the decision, which he said affirms arguments he has been making for more than 20 years.

“Jennifer [Kinsley] and I are thrilled,” Sirkin told XBIZ. “Today’s decision reaffirms the position we have taken and argued since the early 1980s, though I must admit that if someone had said even in 2003 that we would be able to sell these ideas so quickly, I wouldn’t have believed them. But then there was Lawrence, and even then people thought we got lucky with Judge Lancaster. But I don’t think it was luck. I believe we have to keep pushing arguments like this, because they are the future.

“The significance in the Lawrence decision was the liberty interest of the participant’s consensual activity of a sexual activity that was not for procreation, because the only rationale to say that two guys couldn’t ‘do it’ is the Judeo-Christian philosophy that sex is only to procreate. That’s why [they believe] you can’t use contraceptives and why two guys can’t engage in sex, and also why you can’t masturbate.”

Sirkin said he sticks by comments he made in 2003 upon receiving the Hall Freeman Award from the Free Speech Coalition, shortly after Lawrence came down, that the decision had profoundly changed the dynamic in the country and we are finally able to argue that everyone has the same right to auto-erotize themselves.

“I’m optimistic and believe the day is coming when the world is going to realize that it is not immoral to jack-off, and to be honest with you, these arguments are unrelated to free expression. The free expression concept — after you take Lawrence to the next step, and then Reliable to the next step — is that if I have the right to eroticize myself with a device, my hand or anything else I like, I certainly ought to be able to eroticize myself by watching a movie.”

Sirkin added that what excites him about today’s decision is the fact is that the principals he has been espousing are no longer standing out there as something that only one judge has affirmed. “Now a circuit court has adopted the decision, and even went further in outwardly saying there is a privacy issue and liberty interest in being able to eroticize yourself.”

However, he capped his comments with a final cautionary note regarding the future of decisions such as the one reaffirmed by today’s decision.

“I don’t know how the Supreme Court would come down on this, but I would certainly like to see the next couple of justices going on the court be appointed by a Democratic president,” he said. “The next election is crucial, because the decision in Lawrence was 6-3.”

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