sex toys and the Constitution, part one

Four years ago, in Lawrence v. Texas (539 US 558), the U.S. Supreme Court overturned the nation's few remaining state anti-sodomy laws, thereby decriminalizing a range of sex acts not just for same-sex partners but for everyone. The Texas statute, Tex. Penal Code Ann. § 21.06(a) (2003), that led to the decision prohibited members of the same sex from

'(A) any contact between any part of the genitals of one person and the mouth or anus of another person; or
(B) the penetration of the genitals or the anus of another person with an object.'

Although not as widely reported, the decision also overturned the laws of other states that prohibited such acts for opposite-sex folks as well.

Like a lot of people born in the States in the 1970's, I always envied the previous generation for being alive when the promises of the republic were made real by the great civil rights movement of the 50's and 60's. This envy was exacerbated by the PBS documentary series 'Eyes on the Prize', which was shown on channel 13 for what seemed like the entirety of my teenage years. That's not a complaint but, rather, an indication that I got the point: we would probably never see such a civil rights movement again and I had missed it by being born too late.

Then the 1990's arrived and soon a new civil rights movement—in short, for gay rights—demanded the nation's attention. The cause of civil rights is never sectarian or parochial. The movement to enfranchise African-Americans benefitted African-Americans most directly, but everyone has a stake in justice for all. If we let the majority abuse people with brown skin today, what's to stop them from abusing any other sort of group that they might choose to construct? Like the man said, 'Injustice anywhere is a threat to justice everywhere.' (MLK, Letter from Birmingham Jail)

Like every movement for justice, the cause of gay rights is everyone's cause, for at least two reasons. One, if the majority can force us not to get busy with one type of person, what other restrictions might they try to impose on our choice of adult partners? And two, if the majority can outlaw practice X today, what's to stop them from outlawing practice Y tomorrow? (Admit it, reader: you know you love practice Y.)

So when the Supreme Court decided Lawrence v. Texas back on June 26, 2003, I immediately downloaded the text and read it in its entirety. I had a liberal education, in every sense, and so I was taught at a young age that the Supreme Court was the great protector of our freedoms as Americans. When did I first learn about the Court in school? 1986. Why is that significant? 1986 was the end of all that: the year that Bowers v. Hardwicke ruled that anti-gay laws were constitutional, the year that that racist William Rehnquist was appointed chief justice, the year that that madman Antonin Scalia was appointed to the Court, the year that ushered in the wave of radical conservative judicial activism that reached its reached its logical climax in the coup d'état known as Bush v. Gore (2000). In Lawrence v. Texas, I finally had a major civil rights decision in my own lifetime that I could be proud of as an American.

There are a lot of reasons that I admire Justice Kennedy's decision for the court, but something in Scalia's dissent that struck me at the time is newly relevant. Scalia was upset that Lawrence v. Texas might lead to other criminal prohibitions being unenforceable, including those against sex toys, extramarital sex, adultery, and masturbation:

'Every single one of these laws is called into question by today’s decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding.' (539 US 558, 590)

That's right: Scalia approvingly quoted a 1999 Maryland decision that found

'a person has no constitutional right to engage in sexual intercourse, at least outside of marriage'.

Why do I bring all this up now? Last month, on Valentine's Day no less, the United States Court of Appeals for the Eleventh Circuit, with jurisdiction over Alabama, Florida, and Georgia, ruled that an Alabama state law prohibiting the sale of sex toys is entirely constitutional. Why does that matter to you? For the answer, tune in tomorrow, reader, for part two on sex toys and the Constitution.