Unraveling Lawrence's Concerns About Legislated Morality: The Constitutionality of Laws Criminalizing the Sale of Obscene Devices

I. 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 the 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 morals legislation 1387 2. Distinguishing Lawrence 1390 V. Conclusion 1397 I. INTRODUCTION In a decision feared by some as "the end of all morals legislation,"1 the majority in Lawrence v. Texas held that "the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice."2 Since deciding Lawrence, the Supreme Court has not had the opportunity to opine definitively whether a law passed exclusively on moral grounds can pass the rational basis test - that is, whether public morality in itself is a legitimate governmental interest.3 Instead, the battle has played out in circuit, district, and state courts across the 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 the Lawrence holding and effectively revived morals legislation from imminent death.4 The first post-Lawrence "morals legislation" to create a genuine circuit split that could potentially reach the High Court relates to "device[s] designed or marketed as useful primarily for the stimulation of human genital organs"5 - in essence, sex toys. With no pretext other than protecting public morality, legislatures in at least eight states have passed laws prohibiting the commercial sale and distribution of sex toys.6 Although these laws might be "uncommonly silly,"7 the 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 the issue - the Eleventh Circuit - distinguished Lawrence and upheld an Alabama statute criminalizing the 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 the Eleventh Circuit and argues for the constitutionality of morals legislation criminalizing the commercial distribution of adult toys, thus avoiding the 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 the sale of sex toys is constitutional under the 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 the relevant portions of the Lawrence decision and its implications for morals legislation. Part III will look at the circuit split between the Fifth and Eleventh Circuits regarding the constitutionality of sex toy laws in light of Lawrence. …