Morals Legislation after Lawrence: Can States Criminalize the Sale of Sexual Devices?

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INTRODUCTION

I.   WHERE DID LAWRENCE COME FROM, AND WHAT DID IT SAY?
     A. Defining "Morals Legislation"
     B. Morals Legislation Before Lawrence
        1. Enforcing morality
        2. Changing attitude of the Court
     C. What Did Lawrence Decide?
II.  SEXUAL DEVICES AND THE CONTINUING BATTLE OVER LAWRENCE
     A. Split Between the Circuits
        1. Eleventh Circuit
        2. Fifth Circuit
     B. State Courts Divided
     C. Why the Fifth Circuit Got It Right
III. LEARNING FROM LAWRENCE: WHERE DO WE GO FROM HERE?
     A. Substantive Due Process Versus Equal Protection
     B. Promoting Morality by Other Means

CONCLUSION

INTRODUCTION

Dissatisfied with the outcome in Lawrence v. Texas, Justice Scalia warned in his dissent that the Court had "effectively decree[d] the end of all morals legislation." (1) For him, this was a result to be feared rather than celebrated. It meant the end of all criminal prohibitions against deviant sexual behavior, including "fornication, bigamy, adultery, adult incest, bestiality, and obscenity." (2) Worse still, the decision was a product not of democratic deliberation but rather of imposition by a select set of judges committed to the "homosexual agenda." (3) No longer could the people determine the content of the criminal law by mere reference to their moral code.

Despite these dire predictions, recent decisions by state and lower federal courts have adopted conflicting interpretations of Lawrence. In Williams v. Morgan, the Eleventh Circuit upheld an Alabama law prohibiting sales of devices used for sexual stimulation, finding that "public morality remains a legitimate rational basis for the challenged legislation even after Lawrence." (4) The Fifth Circuit reached the opposite conclusion when reviewing a similar statute in Texas, concluding that "[t]o uphold the statute would be to ignore the holding in Lawrence and allow the government to burden consensual private intimate conduct simply by deeming it morally offensive." (5) The supreme courts of five states are similarly divided. (6)

The debate over laws regulating the sale of sexual devices--what some call "sex toys" (7)--may at first glance seem insignificant, but it gets at the heart of an important question that was raised in Lawrence and is still hotly contested: to what extent can morality serve as a legitimate basis for laws that place a significant burden upon individual liberty interests? The Court has yet to provide an answer to this question, but its decision could significantly impact future determinations about the validity of a whole host of laws, including laws prohibiting certain sexual behavior, disallowing same-sex marriage, and criminalizing drug possession. The Court may be reluctant to take Lawrence quite so far, but it will at least need to establish meaningful limiting principles for the rule established in that case.

In this Note, I argue that it is unconstitutional for states to criminalize the sale of sexual devices on the basis of mere moral disapproval. (8) In other words, I argue that the Fifth Circuit made the right decision in holding such laws invalid. In Lawrence, the Court adopted a new, much more restrictive approach to morals legislation. It made clear that a law burdening a fundamental liberty interest cannot withstand scrutiny if supported by moral disapproval alone. Although a similar principle had been applied in the context of equal protection, the Court expanded it in Lawrence to the realm of substantive due process. In so doing, it indicated that prohibitions on certain kinds of conduct are tantamount to an attack on an entire class of persons. It also suggested that morality-based criminal prohibitions are particularly problematic when they target underlying conduct that is sexually intimate, consensual, and private.

Part I examines where Lawrence came from and what exactly it said. Only by understanding the context of the decision will it be possible to determine its underlying motivations and binding effect. …