Unraveling Lawrence's Concerns About Legislated Morality: The Constitutionality of Laws Criminalizing the Sale of Obscene Devices
2010; Brigham Young University; Volume: 2010; Issue: 4 Linguagem: Inglês
ISSN
0360-151X
Autores Tópico(s)Law in Society and Culture
ResumoI. Introduction 1369 II. Context & Background: Lawrence v. Texas 1371 III. The Circuit Split 1374 A. Alabama and Williams v. Morgan 1375 B. Texas and Reliable Consultants, Inc. v. Earle 1378 rv. The Constitutionality of Sex Toy Statutes 1380 A. Level of Scrutiny for Right to Sexual Privacy at Issue 1381 1. The absence of a Glucksberg analysis in Lawrence ..... 1381 2. The right to sexual privacy is only a rational basis right 1383 B. Public Morality as a Rational Basis 1386 1. History of 1387 2. Distinguishing Lawrence 1390 V. Conclusion 1397 I. INTRODUCTION In a decision feared by some as the end of all legislation,1 majority in Lawrence v. Texas held that the fact that governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting practice.2 Since deciding Lawrence, Supreme Court has not had opportunity to opine definitively whether a law passed exclusively on moral grounds can pass rational basis test - that is, whether public morality in itself is a legitimate governmental interest.3 Instead, battle has played out in circuit, district, and state courts across country. While some courts have held - fulfilling Justice Scalia's doomsday prophecy - that public morality is an insufficient reason for a legislature to pass a law, others have narrowed Lawrence holding and effectively revived from imminent death.4 The first post-Lawrence morals legislation to create a genuine circuit split that could potentially reach High Court relates to device[s] designed or marketed as useful primarily for stimulation of human genital organs5 - in essence, sex toys. With no pretext other than protecting public morality, legislatures in at least eight states have passed laws prohibiting commercial sale and distribution of sex toys.6 Although these laws might be uncommonly silly,7 question remains whether these legislatures, citing only public morality, have a rational basis for passing such legislation. The two circuits to have addressed these laws are split as to their constitutionality.8 The first circuit to visit issue - Eleventh Circuit - distinguished Lawrence and upheld an Alabama statute criminalizing sale of adult toys.9 The Fifth Circuit, only one year later, disagreed and interpreted Lawrence broadly to strike down a Texas sex toy statute.10 This Comment agrees with Eleventh Circuit and argues for constitutionality of criminalizing commercial distribution of adult toys, thus avoiding bleak world envisioned by Justice Scalia in which there is constitutional protection for fornication, bigamy, adultery, adult incest, bestiality, and obscenity.11 A law banning sale of sex toys is constitutional under Due Process Clause because it does not implicate a fundamental right and because bare public morality12 in itself remains in some instances a legitimate government interest. This Comment will begin in Part II by detailing relevant portions of Lawrence decision and its implications for legislation. Part III will look at circuit split between Fifth and Eleventh Circuits regarding constitutionality of sex toy laws in light of Lawrence. …
Referência(s)