The State of Alabama appealed the decision, arguing that “a ban on the sale of sexual devices and related orgasm stimulating paraphernalia is rationally related to a legitimate legislative interest in discouraging prurient interests in autonomous sex" and that “it is enough for a legislature to reasonably believe that commerce in the pursuit of orgasms by artificial means for their own sake is detrimental to the health and morality of the State.”2 The 11th Circuit Court accepted this argument and agreed with the district court’s rejection of the constitutional challenge that there was a privacy right at stake. Although he court recognized that Roe v. Wade guaranteed privacy protections from government interference within the framework of procreation, it argued that “none of these cases…is decisive on the question whether the Constitution protects every individual's right to private sexual activity and use of sexual devices from being burdened by Alabama’s sexual device distribution criminal statute.”
The Supreme Court’s decision in Bowers v. Hardwick precluded extending the constitutional right to privacy to include a broad fundamental right to all sexual autonomy (such as the rights of consenting adults to use, buy, or sell sex toys). Bowers was overturned by the Supreme Court holding in Lawrence v. Texas (2003), and, in February of 2007, the ACLU challenged the 11th Circuit decision upholding the Alabama ban. The 11th Circuit Court argued that the Lawrence Court “declined the invitation” to recognize a fundamental right to sexual privacy and that therefore a rational basis test was an appropriate test for the constitutionality of the Alabama ban. Finding that public morality, the purpose of the statute, serves as a rational basis for legislation, the 11th Circuit once again upheld the Alabama statute.
On October 1, 2007, the Supreme Court declined certiorari.
In 1973 the state legislature passed Section 43.21 of the Texas Penal Code which, in part, prohibits the sale or promotion of “Obscene device[s]” mean[ing] a device including a dildo or artificial vagina, designed or marketed as useful primarily for the stimulation of human genital organs." Section 43.23 of the code deals with promotion ("A person commits an offense if he…possesses with intent to wholesale promote any obscene material or obscene device. A person who possesses six or more obscene devices…is presumed to possess them with intent to promote the same."). This section carried higher penalties, and for this reason, those businesses that traded in items covered under the act usually marketed them as “novelties” or "educational items.
Two companies filed suit to declare the Texas Statute unconstitutional and the 5th Circuit Court of Appeals overturned the statute on February 12, 2008 by a vote of two to one. In Reliable Consultants v. Abbot (5th Cir. 2008) (Texas), the court held that “the statute has provisions that violate the Fourteenth Amendment of the U.S. Constitution.” The majority opinion stated, “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.”3
The State of Texas, through Attorney General Greg Abbott, argued that the state has a right to regulate morality, and has legitimate reasons for the ban, which include “discouraging prurient interests in autonomous sex and the pursuit of sexual gratification unrelated to procreation.” AG Abbott has filed a petition for the Circuit Court to rehear the argument en banc.” On August 1, 2008, the Fifth Circuit denied the State’s request. This refusal upholding the decision to overturn the Texas ban created a split between federal circuits in light of the 11th Circuit decision to uphold the nearly identical Alabama law. Although the Supreme Court denied certiorari in the Alabama case in 2007, this 2008 decision may
2 Appellant's Brief at 13, 16.
3 Reliable Consultants v. Abbot (5th Cir. 2008) (Texas)