Texas sexual device ban held unconstitutional

The Fifth Circuit Court of Appeals just reviewed Texas’s obscenity statute, and here’s how the opinion begins:

This case assesses the constitutionality of a Texas statute making it a crime to promote or sell sexual devices. The district court upheld the statute’s constitutionality and granted the State’s motion to dismiss for failure to state a claim. We reverse the judgment and hold that the statute has provisions that violate the Fourteenth Amendment of the U.S. Constitution.

It’s recognized that, in constitutional law, the answer often depends on how the question is framed. In this case the questions were posed this way:

Plaintiffs claim that the right at stake is the individual’s substantive due process right to engage in private intimate conduct free from government intrusion. The State proposes a different right for the Plaintiffs: ‘the right to stimulate one’s genitals for non-medical purposes unrelated to procreation or outside of an interpersonal relationship.’

It looks like the court of appeals didn’t like the State’s picture, and it didn’t buy the frame.

Liberty 1, Absurd Legislation 0.

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