Just in time for the yearly spike in erotic activity, or at least awareness-whether through partnered sexcapades or adventures in the autoerotic-Texans woke up on Valentine’s Day with the full legal right to buy and sell sex toys, something Californians have taken for granted since, well, forever.
A federal appeals court on Feb. 13 overturned a state ban on the promotion of “obscene devices,” defined as items designed or marketed for use in stimulating human genitals, according to Texas penal code. (Giggling at the word penal is not a violation).
The 5th U.S. Circuit Court of Appeals determined the sex toy ban violated the right to privacy guaranteed by the 14th Amendment. In their ruling, the appeals judges cited the Supreme Court’s precedent-setting 2003 decision in Lawrence and Garner v. Texas, which reversed Texas’ statute barring consensual sex between gay couples.
The Lawrence decision ruled that anti-sodomy laws were an unconstitutional invasion of privacy.
Like the prohibition of gay sex, the Texas ban on obscene devices imposed a moral code by restricting people’s private sexual activity, the judges decided.
“The case is not about public sex. It is not about controlling commerce in sex,” the appeals judges wrote, as quoted in the Associated Press. “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.”
Since 2003, many people have contended that the law banning sex toys not advertised as “novelties,” or “educational” or “therapeutic” devices falls under the constitutional right to sexual privacy as established by the Lawrence case.
An adult bookstore employee in El Paso who was arrested under the statute argued that the law, while not forbidding owning or using sex toys, prevents people from using them by outlawing their manufacture and distribution in the state. That violates their sexual privacy, said people in opposition to the ban.
The employee, Ignacio Sergio Acosta, was arrested in 2006 when he attempted to sell a dildo to two undercover police posing as a couple and told the female officer the device would give her an orgasm.
What Californians would call scintillating but routine salesmanship Texas lawmakers have labeled peddling obscenities. In fact, the selling of devices itself was legal, so long as they were not promoted as obscene devices; that is, described or depicted explicitly within their physical roles in erotic play.
In other words, as long as manufacturers and retailers included no information about the products’ usage, they were free to pretend their dildos weren’t dildos and their artificial vaginas were therapeutic gloves. It’s been Don’t-Ask-Don’t-Tell at the nonetheless thriving sex stores in the South.
Before the 5th Circuit Court’s decision, the promotion or “intent to promote any obscene material or obscene device” warranted a maximum fine of $4,000 or up to two years in jail, or both. Owning six or more of these devices amounted to the intent to promote obscenity.
Nearly the same penalties exist in Mississippi, Alabama and Virginia. Judges have thrown out similar bans in Louisiana, Colorado, Kansas and Georgia.
The 11th Circuit Court of Appeals, which deliberated Georgia’s obscenity laws, stated in their ruling that obscenity restrictions do not affect the sale of Viagra or other virility drugs. Allowing those drugs to be marketed and sold as such, as is the case in these southern states, must be in the interest of marriage-sanctioned baby-making, unlike pleasure props.
After all, it’s not about how good it feels, but how many new people you promise to birth and spend the next 18 years raising. The state of Texas echoed a common anti-sex toy argument according to the American Statesman, asserting in 2006 its “morality-based” justification for the laws, including “discouraging prurient interests in autonomous sex and the pursuit of sexual gratification unrelated to procreation.”
Some people who have supported obscenity bans in Southern states, namely conservative lawmakers and religious lobbies, point to the recognition of sex addiction as a mental illness, suggesting that acceptance of the toys could encourage destructive sexual behavior.
But opponents of the long-embattled laws emphasize the ability to maximize pleasure during sexual activity helps people who experience pain or have trouble enjoying intercourse and so helps keeps marriages-and families-together.
If you enjoy what the state of Texas calls “autonomous sex,” or just don’t want to be told what to do with your genitals by an octogenarian court justice, tell us about it at www.thecampanil.com on our sex blog. Or, if you find this whole discussion obscene, tell us that too.