I first talked about this case back in February. See Texas “Obscene Device” Law Struck Down. The issue was that the Texas legislature enacted a broad prohibition on the “selling, giving, lending, distributing, or advertising” of “obscene devices.” The law defined “obscene device” as any device “designed or marketed as useful primarily for the stimulation of human genital organs.” At that time, the law was just struck down as unconstitutional by the 5th Circuit Court of Appeals.
Recently, on October 29, 2008, attorneys for the State of Texas informed the Appeals Court by telephone that the State did not intend to seek a writ of certiorari in this cause. What that means is that the decision by a three-judge panel of the Fifth Circuit Court of Appeals on Feb. 12, which overturned Texas’ obscene device law, remains the law of the land, at least in the three states that form the Fifth Judicial Circuit: Texas, Louisiana and Mississippi.
The Fifth Circuit decision in Reliable Consultants relied heavily on the U.S. Supreme Court’s 2003 ruling in Lawrence v. Texas, which said that the government had no business interfering with (or criminalizing) the private sexual affairs of citizens. As Judge Thomas Morrow Reavley wrote in the Reliable decision, “Because of Lawrence, the issue before us is whether the Texas statute impermissibly burdens the individual’s substantive due process right to engage in private intimate conduct of his or her choosing. Contrary to the district court’s conclusion, we hold that the Texas law burdens this constitutional right. An individual who wants to legally use a safe sexual device during private intimate moments alone or with another is unable to legally purchase a device in Texas, which heavily burdens a constitutional right.”
My close friends Lou Sirkin and Jennifer Kinsley were instrumental in the outcome of this case. Nice work!