Texas – Still Obsessed With Dildos

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This scares the bejesus
out of Big Bad Texas

Years after GWB left the Governor’s mansion, the Great State of Texas seems to continue to be obsessed with dildos. I reported on Feb. 13 in Texas Dildo Law Goes Limp that the Fifth Circuit struck down Texas’ Saudi-esque “obscene devices” law.

In that post, I reported on Reliable Consultants v. Ronnie Earl ___ F.3d ___ (5th Cir. 2008). In that case, just in time for Valentine’s Day the Fifth Circuit Court of Appeals struck a blow for individual freedom and struck down the Texas “obscene device law” — the law that makes it illegal to sell (not possess) dildos in the Lone Star State.

Naturally, the State of Texas simply can not survive if dildos are sold in that state. Therefore, a bunch of small-government republicans have banded together to waste the taxpayers’ money seeking a rehearing en banc.

The brief is the same old “the sky is falling” bollocks — as if every time you touch your genitals, an angel burns to death. The argument boils down to this (found on page 14).

  1. If the Texas dildo law is invalidated as an improper encroachment upon personal liberty, this will open the floodgates, and laws on bigamy and incest will be struck down too.
  2. Striking down the law “impermissibly overrides state lawmakers’ settled ‘authority to regulate commercial activity they deem harmful to the public'” (naturally citing a dissenting opinion from the 11th Circuit).

These arguments are easily dispensed with, even if you turn off 98% of your brain cells.

Remember when gays started marrying in Massachusetts? A friend of mine who is a Jehovah’s Witness (yeah, seems funny that I have friends like that) predicted that men would soon marry goats. I haven’t heard of a satyr being born in Massachusetts yet.

Anti-bigamy laws are not an encroachment upon personal liberty. It is perfectly legal for three people, four people, five people, or a whole softball team to form a polyamorous group, live together, sleep together, and have children together. The only thing that is not legal is for a person to be married to another person who is already married to someone else. Marriage is NOT a sacred institution — it is a contract between two people and the state. The state gives benefits to a pair of people who decide they want to get married — for example, inheritance, marital privileges, and the like. Extending such privileges to larger groups would allow any cult or group of criminals to simply say “all 75 of us are married, therefore we can invoke the marital privilege.”

Incest — same thing. There is not an impermissible encroachment upon personal liberty, because incest has effects that will harm us all. Those who are in an inferior position in a family will not be able to give true consent. Even if they were (lets say fraternal twins wanted to do the nasty), there is a very real possibility that the incestuous relationship would result in inbreeding — which would lead to more Texans like the idiots who voted for this law in the first place. I don’t know, maybe if the incest took place between verifiably consenting adults who were also sterile, I suppose that I wouldn’t expect the state to get involved if my neighbor made that choice.

The second argument is just plain funny. The legislature of Texas has somehow deemed it to be harmful for people to masturbate? However, since they can’t make masturbation illegal, they have determined that the commercial activity of selling an item for the stimulation of the genitals is “harmful to the public?”

Does it not seem beyond belief that you can buy a gun with relatively little hassle all across the South. However, the legislatures of Mississippi, Alabama, and Texas are terrified of vibrators? One commentator said:

one could stroll down Alabama’s southern streets selling semiautomatic rifles and dildos, and be arrested for the dildos. (source)

The only thing that dildos threaten is some ass-hats in Austin who are terrified of the fact that women will like their dildos more than their men. Given what I have seen come out of the Texas legislature, I couldn’t blame them.

15 Responses to Texas – Still Obsessed With Dildos

  1. philnelson says:

    I’d like to hear more about what would bug you about marital privilege extending to multiple people.

  2. As a society, we have come to the conclusion that there are certain communications between spouses that are confidential. This can, sometimes, stymie efforts to find trial evidence.

    We have decided that allowing spouses to have confidence in their communications with each other outweighs society’s interest in getting all of the evidence in court proceeding.

    This price is low when it is only paid in terms of bonds between two people. Mind you, I have no problem with a polyamorous group deciding that they wish to live in a committed group “marriage.” However, if polyamorous relationships were given state recognition, we might find three, four, seven, or twelve-person marriages that would function in a very unwieldy manner.

    Ultimately it comes down to power. The two-person marital pair is a powerful legal entity. As you add members to that entity, that power increases exponentially. More than two people in a legally-recognized marriage would cause a societal power imbalance that would ultimately result in multiple marriages being necessary, not simply matters of choice. I believe that in a few decades it would result in us all breaking off into quasi-tribes instead of interdependent members of society.

    Naturally, I have no sociological evidence to back up my theory. These are my lay-person observations and predictions. I’m willing to examine evidence that debunks my theories — but my impression is that while same sex marriages between two people have no negative societal effects, multiple legal marriages will.

    Note that I say legal. If there are other sociological negatives to extra-legal multiple-partner groups, I believe that our commitment to individual liberty must allow them to exist, unless someone can show that they will have a negative impact that outweighs the individual’s right to live in a partnership arrangement of their choice. Accordingly, if seven people want to live together in a “group marriage,” I have no problem with that. However, I think that it is only proper for the state to extend the marital privilege and spousal benefits to pairs of people (be they same sex or different sex).

  3. […] Prof. Marc Randazza’s entertaining and informative blog has links to a request for rehearing en banc filed by a group of Texas Republican legislators. Prof. Randazza notes that these purport to be small government conservatives. […]

  4. Beldar says:

    Only a very bad advocate over-argues his position to the degree that this post does. When the panel majority creates a split in the circuits (as this one does), and when there has been an intelligent and comprehensive dissent (as there was here), it’s incredibly hyperbolic, and way too smug, to say that asking for rehearing en banc is a “waste of taxpayer’s money.”

    I agree that the policy is monumentally stupid. But I am among those who believes that the Constitution permits state governments to be monumentally stupid, and doesn’t imbue federal judges with the power to substitute their own judgments willy-nilly for those of state legislators who’ve been monumentally stupid.

  5. Has the Fifth created a split in the circuits? Or did the 11th simply ignored Lawrence v. Texas, and the Fifth chose not to ignore that decision?

    The Constitution does permit state governments to be monumentally stupid — but it does not permit state governments to encroach upon the citizens’ private sexual lives on the pretext of protecting “health, safety, and welfare,” when the true reason is nothing more than superstition. It wasn’t permitted in Griswold v. Connecticut, it wasn’t permitted in Lawrence v. Texas, and it shouldn’t be permitted here.

    To call a decision based upon clear Supreme Court precedent “substitu[tion of] their own judgments willy-nilly for those of state legislators” reveals more about you than it does about the Fifth, or me.

    This is precisely what the federal courts are for. When legislatures bow to the hysterics of one small cult, it is the court’s job to step in as a body unbowed by political pressure (we should hope) to correct the error.

    But you knew that, after all, you were on law review. (Meaning you spent your time checking real authors’ punctuation while the real authors were creating new works.

    With respect to my “over-arguing” my point — step one, remove your head from your ass, you slack-jawed hillbilly moron. Hyperbolic? Smug? Have ya read the other posts on this blog? This isn’t a petition for certiorari. This is where I share opinions and observations on legal issues — I have no desire, nor need, to coddle the sensitivities of someone like you.

    Now run along and find yourself a traffic ticket to defend. The Constitutional lawyers are busy.


  6. Vaelin says:

    The reason why it’s a “waste of taxpayer’s money” is that it won’t change a damn thing one way or the other. Sex shops exist in Texas, I can name quite a few that have expanded since I last lived in Houston 6 years ago. All it will change is what they call the sex toys.

    The people have spoken, and the legislature needs to get in touch with their constituency.

    The problem is, no right minded politician will go out of his or her way to stand up in support of dildoes. At the local level like that, it gives your opponents too much firepower. I’m certain a Presidential Candidate could get away with it as the press coverage would be pretty thorough. But at the local level, all you’d see would be one or two signs claiming John Doe Kennedy is trying to put sex toys in the hand’s of your children…

  7. As a newly minted Texan by marriage, I was damned proud to see your name connected at Slate.com to an article about my new home state and dildos. Rock on Mr. R!


  8. […] For the fascinating story click HERE. […]

  9. […] unregulated. Quoting directly from the brief, placed as a footnote on page 14 (and much thanks to  The Legal Satyricon for offering a copy of the brief): 4. It is undoubtebly true that some people believe that […]

  10. Pete says:

    Very nice comment! Respect!

  11. […] banned due to someone crying “I’m offended!” I might have expected this out of Texas, but Wisconsin? The Wisconsin Law Students for Reproductive Justice had planned an event called […]

  12. How can any government have the right to ban sex toys or tell you what you can do in the privacy of your bedroom.

  13. Dildos says:

    I think to even attempt to ban sex toys is completely crazy. Whats next?

  14. […] The Fat Lady Sings – Texas Kittens Fear for their Lives Kittens are expected to face extinction in the Lone Star StateI previously wrote about the victory in Reliable Consultants v. Earle case in Texas Dildo Law Goes Limp, and the Lone Star State’s evangelical-led push to overturn the case en banc in Texas – Still Obsessed With Dildos. […]

  15. Squirt says:

    And the South shall rise again…

    Texas was one of the few remaining states steadfastly holding on to a ban on sex toys, and now a federal appeals court has overturned the ban and made their use a lawful practice. Selling or promoting sex toys and their use, a crime once punishable by up 2 years in prison, is now held as a constitutional right under the 14th Amendment’s right to privacy by the 5th US Circuit Court of Appeals. The decision cites the US Supreme Court’s 2003 decision in Lawrence and Garner versus Texas, which made legal consensual sex between same sex partners.

    “Just as in Lawrence, the state here wants to use its laws to enforce a public moral code by restricting private intimate conduct. 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.

    Other states such as Alabama, Mississippi, Kansas and Colorado have lifted or are in the process of lifting bans on such acts as selling or advertising sex toys.

    We are very pleased that the 14th Amendment’s protection to privacy has finally been extended to the area of intimate conduct. Texas and other State Law Enforcement Agencies can finally stop devoting resources to the regulation of sexual activities between consenting adults.” says Randy Jones, Executive Director of TabuToys.com.

    TabuToys is an online sex toy boutique providing upscale adult toys and vibrators, as well as sex-positive discussion forums. Please visit http://www.tabutoys.com for more information.

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