A federal appeals
court has overturned a Texas statute outlawing sex toy
sales, essentially leaving Alabama as the only state with
such a ban.
The fifth 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
Fourteenth 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.''
The Texas
attorney general's office, which represented the Travis
County district attorney in the case, has not decided
whether to appeal, said agency spokesman Tom Kelley.
Phil Harvey,
president of Adam & Eve Inc., said the fifth 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.
Alabama is in the
11th circuit. But Mississippi, which also is in the
fifth circuit, essentially will have its ban overturned as
well, some legal experts said.
Virginia's law
barring obscene items is different from other state laws
and does not seem to apply to sex toy sales, said Harvey,
whose company distributes nationwide. Louisiana,
Kansas, Colorado, and Georgia had laws barring obscene
devices, but courts have since struck them down.
The fifth circuit
court's decision is encouraging for Sherri Williams,
who has been fighting the ban in Alabama for a decade.
Williams, who owns Pleasures stores in Alabama, sued
in 1998 after state lawmakers banned the sale of sex
toys there. A year ago, she lost her fight again when the
U.S. Supreme Court refused to consider a lower court
decision upholding the Alabama law as constitutional.
Williams hopes
that lawmakers will take notice of the recent Texas case
and support a newly filed bill in the Alabama legislature to
overturn the ban on adult toy sales.
''I think the
courts are finally listening to the people,'' Williams said
Wednesday. ''You have Sex and the City, Desperate
Housewives, and other shows promoting what society
is doing. I think the courts have finally opened their
eyes and looked around, which is a miracle in the
South.'' (Angela K. Brown, AP)
