Toys are us: sex toys, substantive due process, and the American way.

• Author: Waldo, Curtis
• Position: Company overview

In the six years since the Supreme Court decided Lawrence v. Texas, (1) circuit courts have disagreed over the proper standard of review for statutes that implicate sexual privacy. (2) Two cases stand out: Williams v. Attorney General of Alabama, from the Eleventh Circuit in 2004, (3) and Reliable Consultants v. Earle, from the Fifth Circuit in 2008. (4) In Williams, the court upheld an Alabama statute that prohibited the sale of sex toys; (5) in Reliable, the court struck down a Texas statute with similar wording. (6) The judges in both cases, whether writing for the majority or for the dissent, measured the statutes against Justice Kennedy's opinion in Lawrence, (7) but their interpretations differed in significant respects. (8) The majority in Williams, along with the dissent in Reliable, thought Lawrence required rational basis review and that the sex toy statute would easily pass. Conversely, the dissent in Williams believed that the Alabama statute should be assessed under strict scrutiny but that it would fail even rational basis review. (9) Finally, the majority in Reliable was careful to apply neither rational basis nor strict scrutiny, instead simply "apply[ing] Lawrence." (10)

After Lawrence, those who have written about the circuit courts' treatment of sex toy statutes have generally focused on the right to sexual privacy threatened by these bans, which they contend that the majority in Williams and the dissent in Reliable failed to appreciate. (11) However, this Article will argue that the circuit courts' disagreement in Williams and Reliable is a result of the courts' continued, but misguided 'practice of evaluating the nature of the right asserted by the claimant. (12) Lawrence should be regarded as a retreat from this practice. (13) The Lawrence Court, after finding that the statute at issue addressed a relationship that was outside the proper realm of state action, (14) struck it down as prohibiting activity which was "within the liberty of persons to choose." (15) What Lawrence left unresolved was how future courts should determine when state action impermissibly treads upon this "liberty." That is the problem which this Article aims to solve. (16)

Part I will summarize the Court's modem substantive due process cases, starting with Griswold v. Connecticut (17) and ending with Lawrence. Part I.B argues that Lawrence applied neither rational basis nor strict scrutiny review. Part I.C considers how scholars and judges have interpreted Lawrence. Part I.D concludes that after Lawrence, the preservation of public morality can no longer be the sole justification for restricting liberty.

Part II explores the split between the Eleventh Circuit's Williams opinion and the Fifth Circuit's judgment in Reliable. It argues that their primary shortcoming is that they assume, even after Lawrence, that unenumerated rights may be protected only if they can be singled out and/or classified as "fundamental." (18) Finally, this section argues that reading Lawrence to have created a right to sexual privacy, as several of the judges in Williams and Reliable did, would not invalidate statutes prohibiting the sale of sex toys. (19)

Part III proposes an interpretation of Lawrence that embodies a narrow but absolute right to liberty. The nature or importance of the right being asserted is not important; what is important is the state's justification, or lack thereof, for its choice to legislate in a certain area. Part III.A argues that this justification can only be shown when the state's legislation substantially relates to preventing harm. Part III.B addresses changes in pre-Lawrence doctrine suggested by this Article, and Part III.C addresses the objection that a "substantial relation" standard might be too indeterminate. Finally, Part III.D demonstrates how this interpretation of Lawrence would be applied to statutes banning the sale of sex toys, as well as to other cases. Though most laws would survive this interpretation of Lawrence, those banning the sale of sex toys, as well as various protectionist and paternalistic laws, would most likely be struck down, (21) not because such laws infringe on a fundamental right, (21) but because the state would have difficulty justifying its actions in these areas.

Judicial treatments upholding the constitutionality of statutes banning the sale of sex toys have generally relied on the distinction between private, autonomous conduct (which cannot be banned), and public, commercial conduct (which can be banned). Conversely, judicial opinions and scholarly works advocating for the unconstitutionality of laws banning the sale of sex toys have generally focused on the stifling impact such laws have on the private, autonomous conduct of individuals who wish to use sex toys. In focusing on the rights of vendors, this Article suggests a different, but ultimately more consistent, approach than either side of this debate has yet taken.

1. THE LAST FORTY YEARS OF SUBSTANTIVE DUE PROCESS: FROM PRIVACY TO LIBERTY

   Part I.A of this Article discusses the modem history of substantive due process. This is necessary in order to appreciate how Justice Kennedy's analysis in Lawrence, discussed in Parts I.B and I.C, marked a shift away from the fundamental/non-fundamental rights approach of previous substantive due process cases. Part I.D argues that Lawrence should be read to invalidate laws justified solely on the basis that they preserve public morality.

   1. Griswold Through Glucksberg

      Griswold v. Connecticut is the typical starting point for a survey of modern substantive due process cases. (22) Although it did not explicitly rely on substantive due process, (23) the Griswold Court struck down a Connecticut law prohibiting the use of contraceptives. (24) The Court based its reasoning on the "right to privacy," found in the penumbras of the First, Third, Fourth, Fifth, and Ninth Amendments. (25) Griswold was followed two years later by Loving v. Virginia, (26) in which the Court ruled that anti-miscegenation statutes violated not only the Equal Protection Clause of the Fourteenth Amendment, (27) but also the "vital personal right[]" to marry. (28) In Roe v. Wade, (29) the Court explained that because the "right to personal privacy" was fundamental, the state had to have a "compelling" interest before it could regulate the choice of whether to have an abortion or not. (30)

      Four years later, the Court ruled in Carey v. Population Services that prohibiting the sale of contraceptives was equivalent to prohibiting the use of contraceptives for purposes of fundamental rights analysis, further extending the right of privacy. (31) As prohibiting the sale of contraceptives placed a "significant burden" on the exercise of a fundamental right, such laws were unconstitutional, even though they regulated commercial relationships. (32)

      Nine years after Carey, the Court's extension of privacy rights was interrupted by Bowers v. Hardwick, in which the Court upheld a ban on oral and anal sex between consenting adults. (33) Writing for the majority, Justice White ruled that a homosexual right to engage in sodomy is not "deeply rooted in this Nation's history and tradition or implicit in the concept of ordered liberty." (34) These were the hallmarks, according to White, of any fundamental, unenumerated right. (35) Four justices dissented, criticizing White for framing the fundamental right in such a narrow way. (36)

      Nineteen years after Roe, (37) the Court reaffirmed Roe's "central holding" in Casey v. Planned Parenthood. (38) While the per curiam opinion in Casey preserved Roe's casting of the choice to seek out an abortion as a fundamental right, it shifted from a trimester analysis to an undue burden standard, in which any law regulating a woman's choice to seek out an abortion may not place an "undue burden" on the woman's fundamental right. (39) Casey was therefore a departure from the traditional practice of applying strict scrutiny to violations of fundamental rights. (40) Casey also represented a change in how the Supreme Court spoke of fundamental rights. The per curiam opinion emphasized balancing "liberty and the demands of organized society." (41) Indeed, the Court recast Roe as having protected a "dimension of personal liberty." (42) The right to privacy in Roe was now a subset of a general right to personal liberty. (43)

      Compare the reasoning in Casey to the Court's analysis five years later in Washington v. Glucksberg, (44) in which Chief Justice Rehnquist criticized the more open-ended approach of the per curiam opinion in Casey. (45) Eschewing Casey's "liberty" analysis, Rehnquist began by "carefully formulating" the specific right at issue and then inquiring "whether this asserted right has any place in our Nation's history." (46) Not surprisingly, since Rehnquist was able to phrase the "right" at stake as the "right to commit suicide which itself includes a right to assistance in doing so," (47) it was not difficult for him to find evidence that the right to commit suicide had not been historically protected. As such, the Court upheld Washington's ban on assisted suicide. (48)

   2. Lawrence v. Texas

      Casey and Glucksberg sent mixed messages to lower courts about how to approach substantive due process cases. (49) The Casey opinion diminished the importance of the fundamental/non-fundamental rights distinction; the Glucksberg approach rigidly depended on the distinction. (50) As Part I.B shows, Lawrence v. Texas (51) represented a shift toward the Casey approach, which placed less emphasis on a strict classification of rights.

      In Lawrence, Justice Kennedy, joined by four other Justices, struck down a Texas statute that prohibited sodomy between homosexuals. (52) Extending the practice seen in Casey, Justice Kennedy framed the Court's decision as protecting liberty, not privacy. (53) For example, he wrote of a liberty that protects persons from unwanted government intrusion, (54) a...