A federal appeals court has overturned a Texas statute outlawing sex toy sales, leaving Alabama as the state with the strictest ban on such devices.
The 5th U.S. Circuit Court of Appeals ruled that the Texas law making it illegal to sell or promote obscene devices, punishable by up to two years in jail, violated the Constitution's 14th Amendment on the right to privacy.
Companies that own Dreamer's and Le Rouge Boutique, which sell the devices in its Austin stores, and the retail distributor Adam & Eve, sued in Austin federal court in 2004 over the constitutionality of the law. They appealed after a federal judge dismissed the suit and said the constitution did not protect their right to publicly promote such devices.
In its decision Tuesday, the appeals court cited Lawrence and Garner v. Texas, the U.S. Supreme Court's 2003 opinion that struck down bans on consensual sex between gay couples.
"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."
Phil Harvey, president of Adam & Eve Inc., said the 5th Circuit Court's decision was a big step forward. He said his business plans to expand to sell in stores and at home parties, something company consultants had been fearful to do because of the Texas law.
"I think it's wonderful, but it does seem to me that since Texas was one of three states in the country -- along with Mississippi and Alabama -- that continued to outlaw the sale of sex toys and vibrators, that it was probably past time," Harvey said Wednesday.
In 2004, a woman in Burleson, just south of Fort Worth, was arrested for selling two sex toys to undercover police officers posing as a couple. Passion Parties Inc. consultant Joanne Webb, who was not at one of her parties when she sold the devices, initially was charged with violating the state's obscenity law, but a judge later dismissed her case.
Fort Worth attorney Beann Sisemore, who represented Webb, said "it's about time" the law was changed because it was outdated and unfairly targeted women.
"I'm glad we're expanding privacy rights rather than restricting them," Sisemore said.