Judges Create Sex Toy Rights

Activist moonbat judges deem sex toys legal in Texas. Weep for democracy!

The 5th U.S. Circuit Court of Appeals ruled that the Texas law making it illegal to sell or promote obscene devices, punishable by as many as two years in jail, violated the right to privacy guaranteed by the 14th Amendment.

"Just as in Lawrence, the state here wants to use its laws to enforce a public moral code by restricting private intimate conduct," the appeals judges wrote. "The case is not about public sex. It is not about controlling commerce in sex. It is about controlling what people do in the privacy of their own homes because the state is morally opposed to a certain type of consensual private intimate conduct. This is an insufficient justification after Lawrence."

Alabama and Mississippi residents, alas, still risk prosecution every time they brandish a dildo.

Reason on why we love activist judges here, sex toys here.

Hat Tip: Rick Davis.

Comments

Episiarch | February 15, 2008, 11:39am | #

Here's Kerry, shilling for Big Dildo.

Warren | February 15, 2008, 11:42am | #

So much to love about this post. "Moonbat" heh heh

Nick | February 15, 2008, 11:44am | #

So, all we have to do is hide our drugs in sex toys and they are protected by the 14th Amendment?

the innominate one | February 15, 2008, 11:45am | #

when sex toys are outlawed, only outlaws will have sex toys

you can have my sex toy when you pry it from my cold, dead...um, you know

Bingo | February 15, 2008, 11:47am | #

So how big would it have to be in order to be covered under the 2nd amendment?

And if so, would it then be legal in MS and AL?

miche | February 15, 2008, 11:48am | #

Yay Texas! I'm running out to buy a new personal massager dildo!

Tym | February 15, 2008, 11:49am | #

So, all we have to do is hide our drugs in sex toys and they are protected by the 14th Amendment?

The right to privacy gives you the right to things judges think you should have a right to, but not to things they don't.

AnonCowHerd | February 15, 2008, 11:56am | #

As miche notes, dildos have been openly for sale here in Texas as "personal massagers".

miche | February 15, 2008, 11:59am | #

And sometimes our Texas dildos post crazy comments about how libertarian they are. Do you think this new ruling will validate Eric?

Sam Grove | February 15, 2008, 12:06pm | #

Maybe they are counter-activist judges.

Jacob | February 15, 2008, 12:08pm | #

We’re all wondering the same thing so I’ll go ahead and ask it:

What does this mean for prostitution?

juris imprudent | February 15, 2008, 12:13pm | #

Sam Grove is on the scent.

The 5th used Lawrence as guidance/precedence, with it's 'unique' standard of review. Given that this creates a split in the circuits, there is a fair chance this goes to SCotUS, which can then choose to endorse the Lawrence precedent, narrow it, or throw it out altogether. I would personally put money on THAT being the reason the 5th teed it up; sort of a "you created this mess, now you fix it" decision.

Bingo | February 15, 2008, 12:14pm | #

Jacob:

It is not about controlling commerce in sex. It is about controlling what people do in the privacy of their own homes because the state is morally opposed to a certain type of consensual private intimate conduct

Somehow prostitution is "commerce in sex" and is not a "consensual private intimate conduct." Not sure of the logic behind that, but at least sex with vibrating robots is okay now :)

Jacob | February 15, 2008, 12:19pm | #

Bingo,

What if I waited to pay him/her until after we were “in the privacy of our own homes”?

Rex Rhino | February 15, 2008, 12:26pm | #

People *DO* have a right to sex toys, in that they should be free to buy/sell/use. People don't have a right to sex toys, in that they should be tax subsidized.

Tym | February 15, 2008, 12:28pm | #

Somehow prostitution is "commerce in sex" and is not a "consensual private intimate conduct."

Maybe she could sell you something basixally worthless, for say $200.00 or whatever, and give you one hour of free sex for buying it.

J sub D | February 15, 2008, 12:29pm | #

Have you ever wondered what Q could have done with sex toys?

I just did. I possibly need help.

Bingo | February 15, 2008, 12:35pm | #

Jacob:

Probably a no-knock search warrant! ;) In all seriousness, they would probably find something in the commerce clause to prohibit it. After all, it worked to prohibit growing dope in the privacy of your home.

Citizen Nothing | February 15, 2008, 12:35pm | #

JsubD,
Wouldn't they mostly explode?
Ouch.

brotherben | February 15, 2008, 12:44pm | #

My hope is that this will put an end to the black market for second hand sex toys.

Jacob | February 15, 2008, 12:45pm | #

Rex Rhino,

“There are two Americas – one on the top and one on the bottom. One that has all the sex toys they want and one that has to scrimp and save for a simple vibrator. It’s not fair that CEOs have hundreds of sex toys while there workers are left with sweaty palms and grainy videos. I propose a New Deal for Americans, where every family will have an equal opportunity to be stimulated and penetrated at the same time…”

Nick | February 15, 2008, 12:48pm | #

I've always thought prostitutes could get away with it if they were travelling sex toys salespersons. They sell you the toy, then just show you how to use it. So, you pay a little more than some people would think the toy is worth, but the education you receive about how to use the toy, well, who can put a price on that?

Nick | February 15, 2008, 12:51pm | #

Along those lines, why isn't it legal to pay someone to show you how to have great sex? Maybe it is a course you could sign up for? She'd be a teacher instead of a prostitute. Everyone keeps saying teachers don't make enough or we need more of them. I agree!

And, where do teachers work? At schools, sometimes of a specialized variety, aka brothels.

♂ | February 15, 2008, 12:52pm | #

Substantive due process is bullcrap.
There is no constitutional rights to sex toys.

Nick | February 15, 2008, 12:56pm | #

Sure there is, Bullcrap. It's called the 10th Amendment.

"The powers not delegated to the United States by the Constitution...are reserved...to the People."

♂ aka: Bullcrap | February 15, 2008, 1:01pm | #

Nick,

"The people" obviously do not reserve the power to use sex toys if they establish laws against such things through their representatives.

The 10th amendment does not reserve power to individual persons, but to "the people." In a representative democracy, the will of "the people" is determined through representation. "The people" outlawed sex toys.

alisa | February 15, 2008, 1:06pm | #

juris imprudent -- are you saying Lawrence could be overturned? This is worrisome.

TrickyVic | February 15, 2008, 1:07pm | #

"""There is no constitutional rights to sex toys.""

If there were a constitutional right to sex toys would they obey it?

You have a constitutional right to possess a gun. That doesn't seem to solve the issue.

ed | February 15, 2008, 1:10pm | #

Dildo rhymes with Bilbo.
Coincidence?

Ryan | February 15, 2008, 1:16pm | #

The 14th Amendment, and its nonexistent "right to privacy", are inapplicable.

Examine the 9th Amendment to find out why all such state restrictions on liberty, especially that which is private and thus by definition non-harmful to another, are unconstitutional.

prolefeed | February 15, 2008, 1:29pm | #

Maybe she could sell you something basixally worthless, for say $200.00 or whatever, and give you one hour of free sex for buying it.

We call those "dates". Except sometimes one party doesn't live up to their implied contractal obligation (I keed, I keed).

prolefeed | February 15, 2008, 1:30pm | #

Have you ever wondered what Q could have done with sex toys?

I just did. I possibly need help.

J sub D -- "possibly"? ;)

♂ aka: "Bullcrap" | February 15, 2008, 1:38pm | #

Ryan: Examine the 9th Amendment to find out why all such state restrictions on liberty, especially that which is private and thus by definition non-harmful to another, are unconstitutional.

The enumeration in the Constitution, of certain rights shall not be construed to deny or disparage others retained by the people.

The 9th amendment does not apply to rights retained by individual persons. That would be insane. I could retain the right to egg your house.

Instead the 9th amendment protects rights retained by "the people." In a representative democracy, what is and what is not retained by "the people" is determined through representation. In this case, "the people" explicitly chose not to retain the right to sex toys by outlawing them.

Jennifer | February 15, 2008, 1:39pm | #

I refuse to speculate about the possible sexual insecurities that would inspire a male legislator to make it illegal for women to own the means of production of orgasms. I absolutely will NOT go there. Nope.

I will, however, ask if they write these laws with one hand while protectively clutching their shriveled little weenies with the other.

Zeb | February 15, 2008, 1:40pm | #

If there is no right to privacy in the constitution, there damn well should be and I really can't have a problem with judges making one up if that's what it takes.

Johnjackson | February 15, 2008, 1:41pm | #

Is Ron Paul going to write an LRC article about this un-American decision by activist judges who believe in a false right to privacy for sexual deviants?

Zeb | February 15, 2008, 1:41pm | #

Jennifer, women aren't supposed to have orgasms at all. Not necessary for makin' babies.

Jacob | February 15, 2008, 2:05pm | #

JohnJackson,

Ron Paul is only against the black dildos

zig zag man | February 15, 2008, 2:12pm | #

"the right to privacy guaranteed by the 14th Amendment."

What is this right to privacy you speak of, and how can I get some for myself?

Chauvinist Wag | February 15, 2008, 2:15pm | #

Q: How can you tell if a woman is having an orgasm?

A: Who cares?

brotherben | February 15, 2008, 2:31pm | #

women can have orgasms?


shhhh. don't tell mrs. brotherben

ChanceH | February 15, 2008, 2:34pm | #

what if you want to a pay a prostitute less than minimum wage. Would that be OK?

Brian Sorgatz | February 15, 2008, 2:41pm | #

Ron Paul is only against the black dildos

Hmm. What does this tell us about Ron Paul (if that's true) or about Jacob (if that's false)?

Brian Sorgatz | February 15, 2008, 2:42pm | #

Kidding, Jacob!

Brian Sorgatz | February 15, 2008, 2:43pm | #

Sometimes I'm impulsive with my H&R comments. I'm not even sure I get my own joke about Jacob.

Nick | February 15, 2008, 2:47pm | #

Bullcrap, why would the 10th Amendment say the rights are reserved to the states or people? If the People are the state through their representatives, why not just say "reserved to the states?" It means, if a state doesn't make a law, then there is no law and each person can decide for themselves. There is nothing I have read in the writings of the founders that leads me to believe the were saying groups have rights as opposed to individuals having rights.

I will agree, however, that in this case, since the State of Texas decided through their representatives (in other words, the people turned their right to sex toys over to the state), so you are correct about what happened, but not about "the People" being the same as the state as written in the 10th. I think your interpretation of the amendment is wrong.

Nick | February 15, 2008, 2:52pm | #

"Q: How can you tell if a woman is having an orgasm?

A: Who cares?"

Whether or not I care depends. If she has regular orgasms that increases her want of sex because she keeps thinking about that good feeling, and then of course if she goes a short stretch without having an orgasm, it makes her want to try again soon so she can have one because she remembers that good feeling and wants it back. I benefit in both cases.

When I don't benefit is when she goes a while without one, gets frustrated, and then "gets a headache" for two weeks straight.

Bullcrap | February 15, 2008, 2:54pm | #

Nick,

I do like your interpretation better than mine.

John in Nashville | February 15, 2008, 3:21pm | #

There is indeed a danger that this case, which creates an inter-circuit split, could serve as a vehicle for Lawrence v. Texas to be modified or overruled. The five justices in the majority in Lawrence, however, (Stevens, Kennedy, Souter, Ginsberg and Breyer,) are still on the Supreme Court. (Justice O'Connor concurred in the result, but based upon different reasoning.)

The next president will come from a political party that recognizes and respects a constitutional right to liberty broad enough to include private, consensual sexual conduct or from a party that obsesses about who sticks what into whom (and in the case of vaginal intercourse, the sometime result thereof). The fragility of the Lawrence majority should give libertarians pause about electing a president from the party whose members fret about the sexual orientation of Teletubbies.

Brian Courts | February 15, 2008, 3:29pm | #

in other words, the people turned their right to sex toys over to the state

No they didn't. Either there is such a right or there isn't. If there is, then it cannot be turned over to the state - that concept undermines the very definition of right. A right is a protection an individual has from some kind of state coercion. If there is a right, then that right is "owned" by the individual and cannot be voted away by his neighbor. The question is therefore not whether it was turned over through a vote or representation, but whether such a right exists.

robc | February 15, 2008, 3:39pm | #

JsubD,

I just did. I possibly need help.

Before I hovered over the link, I was thinking Q from NextGen not Q from James Bond.

I know I need help.

robc | February 15, 2008, 3:42pm | #

The right to privacy is clearly located in the 9th amendment, not the 14th. Supreme Court justices are so stupid some times. No need for penumbras if you find it in the 9th.

David McElroy | February 15, 2008, 3:46pm | #

Actually, I'm pretty sure that it's legal to HAVE sex toys in Alabama, but it's just not legal to SELL THEM. And there are shops selling such things that are still open, although the state is fighting them in court.

http://www.al.com/news/birminghamnews/index.ssf?/base/news/1200561310117920.xml&coll=2

Brian Sorgatz | February 15, 2008, 4:07pm | #

I'm not even sure I get my own joke about Jacob.

To further explain that comment, I've recently been adjusting the level of my (California) Proposition 215 medicine. I had too much cannabutter with breakfast this morning. I'm too stoned to know all the possible misconstruings of what I write. Oh, well.

Jennifer | February 15, 2008, 4:14pm | #

I had too much cannabutter with breakfast this morning. I'm too stoned to know all the possible misconstruings of what I write.

Nobody likes a braggart, Brian.

Chauvinist Wag | February 15, 2008, 4:23pm | #

Um, Nick ... it was a joke. One of those jokes in which the humor derives from the unexpected offensiveness of the punch line.

But your argument is valid.

TrickyVic | February 15, 2008, 4:41pm | #

"""If the People are the state through their representatives, why not just say "reserved to the states?"""

It's just a guess, but it might have something to do with the concept that one house of Congress represent the state and the other house represents the people.

TrickyVic | February 15, 2008, 4:45pm | #

But that would violate my understanding of the definition "people" with respects to the Constitution which clearly defines the term in the first 3 words of the preamble. We the people.

The people be we.

T | February 15, 2008, 5:04pm | #

The people be we.

We have met the enemy...

The market will fix everything | February 15, 2008, 7:42pm | #

Ron Paul is only against the black market dildos

Like I said.

James Anderson Merritt | February 16, 2008, 12:07am | #

What a wonderful future we can look forward to, if only Lawrence v. Texas would become as trendy an influential a basis for law in the 21st century as the Commerce Clause was in the 20th.

"The Presumption of Liberty..." What a bracing concept! We should definitely give it a try!

alisa | February 16, 2008, 12:13am | #

"The fragility of the Lawrence majority should give libertarians pause about electing a president from the party whose members fret about the sexual orientation of Teletubbies."

Well put.

Jacob | February 16, 2008, 1:55am | #

What a wonderful future we can look forward to, if only Lawrence v. Texas would become as trendy an influential a basis for law in the 21st century as the Commerce Clause was in the 20th.

As much as I agree with sexual privacy, I engage in commerce much more often than I engage in kinky, nasty, tri-racial, inter-species bondage parties. Being a greedy bastard, I just care about my money more than my barely-existent sex life.

Do you think that after you have one kinky, nasty, tri-racial, inter-species bondage party everything else falls into place? Because if not, I have to cancel some evites for tomorrow night.

Robert | February 16, 2008, 2:09pm | #

The right to privacy is clearly located in the 9th amendment,

How do you know?

James Anderson Merritt | February 16, 2008, 4:35pm | #

Jacob wrote, "As much as I agree with sexual privacy, I engage in commerce much more often than I engage in kinky, nasty, tri-racial, inter-species bondage parties. Being a greedy bastard, I just care about my money more than my barely-existent sex life."

But of course, Lawrence is about more than sex. It's about that "presumption of liberty," with sex being only the lens through which we view the issue, just as commerce was the lens through which we viewed liberty in the case of the kinky, nasty, tri-racial, interspecies contortions of the Commerce Clause during the 20th century. I expect you already know that, of course. :-)