AUSTIN, TX — Alabama is the lone remaining bastion of the sex-toy morality police now that the 5th Circuit Court of Appeals on Tuesday overturned Texas’ “obscene devices” law.The Texas law criminalized selling, advertising, giving, or lending any devices designed or designated for sexual stimulation and imposed up to two years of state-jail-felony time on anyone convicted. The appeals court ruled the law violated the 14th Amendment to the U.S. Constitution by compromising citizens’ right to privacy.

Thank Adam & Eve for the victory, at least in part. The distributor and one of its customers — Reliable Consultants Inc., which operates Austin-based Dreamer’s and Le Rouge Boutique — sued the state in an Austin federal court in 2004. They appealed after the judge dismissed the suit. In its decision in the plaintiffs’ favor, the appeals court cited Lawrence and Garner v. Texas, the 2003 Supreme Court ruling that struck down sodomy laws as they applied to consensual sexual relations between gay couples. The decision is regarded as establishing broad constitutional rights to sexual privacy.

“Just as in Lawrence, the state here wants to use its laws to enforce a public moral code by restricting private intimate conduct,” the panel of three appellate judges wrote in their opinion. “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.”

Prior to the appellate court’s decision, Texas was one of three U.S. states that outlawed the sale and distribution of sex toys. The other two were Alabama and Mississippi. Because Mississippi is within the 5th Circuit’s jurisdiction, legal experts believe its sex-toy ban will fall along with Texas’, but Alabama’s remains in force because it is within the 11th Circuit, which in February 2007 ruled Alabama’s law constitutional after a decade-long battle.

Sherri Williams, who owns Pleasures stores in Alabama and was the plaintiff in the 11th Circuit case, said she hopes state legislators there will respond to the 5th Circuit’s decision and support a newly filed bill that seeks to overturn Alabama’s sex-toy ban.

“I think the courts have finally opened their eyes and looked around, which is a miracle in the South,” she told the Associated Press.

The 5th Circuit’s decision may have been “miraculous,” but there is a chance it won’t be permanent, according to attorneys who represent the adult industry.

Clyde Dewitt, who prior to entering private practice was the general counsel for the Harris County, Texas, district attorney’s office, led the defense of Texas’ sexual devices law in 1979 when it was challenged on behalf of a number of plaintiffs by a legal team led by John Westin and Arthur Schwartz.

“I was reluctantly involved [in the defense of the law], I hasten to add,” Dewitt told YNOT on Thursday.

He said he feels confident Texas officials will request an en banc hearing before all the judges of the 5th Circuit, hoping to have the panel’s decision overturned. The process could take anywhere from a few months to a few years to complete, he noted — and then it still might not be over. If an en banc hearing before the 5th Circuit upholds the appellate panel’s decision, a Supreme Court hearing most likely would follow.

The Supreme Court, Dewitt noted, infrequently allows to stand contradictory rulings between judicial districts.

“This case could go on for two or three years,” Dewitt said. “The earliest I can see a final decision being rendered [by the 5th Circuit] is October of this year.”

Attorney Reed Lee agreed the case most likely is headed for further hearings before the 5th Circuit and possibly the supremes.

“The decision is indeed good news. I know Texans have been struggling
with this silly statute for a long time, and it’s also been a bad influence on some nearby states,” he told YNOT. “[But] the panel which decided [the case] is not particularly representative of the judges who sit on that appellate court, so we may be in for a rehearing en banc.

“If the decision stands, one way or the other, it does create a pretty stark ‘split’ between the 5th and the 11th Circuits,” Lee continued. “These splits
make it much more likely, though still far from certain, that the U.S. Supreme Court will take a case, because when appellate courts disagree, the Supreme Court thinks it’s particularly important to resolve the split. If this case — or any sexual-device case — gets to the Supreme Court before anyone else leaves, there are still five justices, a majority, who voted to
strike down the Texas sodomy statute in Lawrence. It is very, very difficult for me to see how one could vote to do that and nevertheless uphold this law.”

The Texas attorney general’s office has not decided whether to appeal, according to spokesman Tom Kelley.

In the meantime, are Texas stores free to sell sex toys? Dewitt said it’s usually a mistake to underestimate the fervor of local prosecutors, but he doesn’t think they’ll waste time pursuing retailers while the status of the law is up in the air.

“As a former prosecutor, and being privy to the discussions they have when no one else is around, I can say that for prosecutors to enforce this law in the current legal environment would be irresponsible with regard to the limited prosecutorial resources they have,” he said.