The Texas Dildo Massacre, Or, Reason Number 2,767 Why Gay Rights Matter To Everyone

The Federal court decision that inspired this post happened a couple of months ago, when I first wrote it. But the issues it addresses are very much current and pertinent... not to mention a rare bit of good sex news in this crappy decade. So I'm reprinting it anyway. This piece was originally published on the Blowfish Blog.

As you've probably heard, the Texas law banning the sale of sex toys has been overturned.

This is excellent news, for all the obvious reasons. Most obviously, Texans can now buy and sell sex toys. People can now open sex toy stores in Texas, run fuckerware parties in Texas, sell sex toys to Texans through the mail without fear of entering murky legal waters. Woo-hoo! Go, Texans! (Good articles about it in the Austin-American Statesman, and in Dispatches from the Culture Wars.)

But I want to talk about one of the less obvious reasons why this is astoundingly, excitingly, kick-ass good news.

(Please note: I'm not a legal expert, and I'm definitely not an expert on constitutional law. These are simply the opinions of a smart lay person who’s been paying attention to this issue for a long time, informed by the opinions of people who are legal experts.)

The primary reason for the Texas sex toy ruling -- the main precedent cited -- was the 2003 Supreme Court ruling in Lawrence and Garner v. Texas, which overturned sodomy laws and legalized gay sex across the country. Now, Lawrence was important for sexual civil rights for a whole lot of reasons. Most obviously, it meant that nobody in the United States could be considered a criminal simply for having gay sex. And that has huge implications for things like custody rights, housing rights, employment rights, etc. Before Lawrence, gay people could be -- and were -- denied all sorts of basic rights... because, technically, they were criminals. Lawrence upended all that, and it was hugely important for that reason alone.

But this latest case -- the Texas sex toy case, Reliable Consultants and PHE v. Texas -- makes it clear that Lawrence has even broader implications... for everyone. Gay, straight, everyone.

The Texas sex toy case makes it clear that the Lawrence v. Texas ruling established a constitutional right to sexual privacy in the United States.

And that, people, is HUGE.

Before the Texas sex toy case, we didn't have that. You might have had it in the particular state you lived in -- we’ve had it in California since 1975, when the consenting adults law got passed -- but United States citizens did not have any constitutionally guaranteed right to sexual privacy until February 12, 2008.

And we have it now. Yes, the Federal courts have now said that you have a constitutional right to use a vibrator or a dildo. But so much more than that: the Federal courts have now said... well, let me quote briefly from the decision.

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 for the statute after Lawrence. (Emphasis mine.)

The Lawrence case didn't just say that gay sex couldn't be criminalized. It said that people -- all people -- have the right to engage in any consensual intimate conduct in their home, free from government intrusion. It said that people's sex lives are not their neighbors' business, not society's business, and most emphatically not the government's business. It said that the fact that the State doesn't happen to like a particular kind of sex doesn't mean they have a right to ban it, or indeed to have any say in it at all.

This case says, "Yup. That's what Lawrence meant, all right."

And that has enormous implications. (Assuming it gets upheld, of course; the decision could be appealed to the Supreme Court, and I haven't read anything yet saying whether or not it will be.)

It has implications for sadomasochists. Fetishists. Swingers. Any other sexual minority you can think of. If you're any of those things... you now have a legal right to it, anywhere in the country. And that's pretty darned important for all those custody rights and housing rights and employment rights and whatnot that we were talking about. It may wind up having implications for porn laws; if we our right to sexual privacy means we can have vibrators, it should mean we have a right to dirty movies as well. (It should have implications for the legalization of sex work, too; but alas, the rulings in both Lawrence and this case made a point of saying that the rulings don't apply to prostitution. Mistakenly, in my opinion.)

So here's the lesson for today. Apart from just, "Hooray for sex toys!" and "Hooray for the right to sexual privacy!"

The lesson for today: Gay rights are human rights.

Gay rights are everyone's rights.

And straight people have a personal vested interest in fighting for gay rights.

This is a point that sex advice writer Dan Savage has made on several occasions. He's pointed out that the right-wing homophobes who want to stop things like same-sex marriage are the exact same right-wing sex-phobes who want to stop things like birth control and sex education and abortion. Gay sexual rights are often on the cutting edge of sexual liberation... and they're often the first on the chopping block when right-wingers try to turn back the clock.

So I want all the straight people reading this to say a big, heartfelt "Thank You" to the people in the gay rights movement who fought so hard for so many years to get the Lawrence verdict. They are the people who, last week, gave you the right to own a dildo or a vibrator in every state in the country.

And I want you to promise to treat the fight for gay rights as if it were the fight for your own.

Because it is.

BTW, does anyone know the current status of this case? Is it being appealed, or is it standing? I Googled it, but couldn't find anything except on the original decision.

*****

Addendum: Important correction to the legal effects of this ruling in Jon Berger's comment below.

Comments

[chancelikely]

I read the article in its original location and found it to be good then, so I won't comment on that now.

All I have to say is that "The Texas Dildo Massacre" is the best possible name for a band.

[Jon Berger]

One quick technical point: the case you're talking about was a Fifth Circuit case, and the Fifth Circuit is just Texas, Louisiana, and Mississippi. As things stand right now, the case only applies there; other federal courts of appeals are at liberty to make up their own minds about what Lawrence means. You're quite correct in noting that if the Supreme Court upholds the case, it will apply nationwide -- but what the Supreme Court is most likely to do, at least statistically speaking, is just refuse to consider it at all. They can do that; an appeal is a matter of right, meaning that courts like the Fifth Circuit have to hear your case if you choose to bring it, but supreme courts, either state ones or the U.S. one, can pick and choose their cases. If they refuse to consider this one (or "deny certiorari," in lawyer talk), it will remain precedent in the Fifth Circuit only.

Interestingly enough (well, to me anyway), one of the big issues in Reliable Products was whether the plaintiff had standing to assert the privacy rights of its customers. The point, and this is technical but highly significant, is that the plaintiffs here hadn't been prosecuted for USING sex toys, they had been prosecuted for SELLING sex toys. So, the argument went, this case has nothing to do with what consenting adults do in private, the issue addressed by Lawrence; this Reliable Products entity isn't trying to use sex toys in the privacy of its home, it's a friggin' corporation, for heaven's sake, and this lawsuit should have been filed by one of its customers. The Fifth Circuit was having none of that, for reasons going back to the great-granddaddy of all the privacy cases, the 1965 condom case Griswold v. Connecticut (which is invariably referred to as "landmark," sort of like the way you can't say "Muqtada al-Sadr" without "radical cleric"). But the Ninth Circuit -- that's California and the western U.S. -- went the other way on that issue in a case called Fleck & Associates v. City of Phoenix (2006) 471 F.3d 1100, in which a gay club challenged a Phoenix ordinance against "live sex act" businesses. The Ninth Circuit basically said "hey, you're a corporation, you can't even HAVE sex, you certainly have no right to have it in private."

So there's a direct conflict among two federal circuits on whether a business entity has what we usually call "third-party standing" to assert the rights upheld by Lawrence. One of the big things that will motivate the U.S. Supremes to agree to review cases is conflicts between the circuits. So there's some hope that they'll take one or another of these cases in order to address the third-party standing issue. But if they do, that's likely to be the only issue they rule on. It's an important issue; one of the big successes of the environmental movement was a case called Sierra Club v. Morton, in which the U.S. Supremes laid out the rules under which advocacy groups like the Sierra Club could assert the rights of their members to challenge environmental laws. (Ask me sometime about the fascinating tie-in between this case and Country Bear Jamboree at Disneyland.) If advocacy organizations, who have money and lawyers, are shut out from challenging unconstitutional laws, there's a significantly diminished chance that they'll be challenged at all. But somehow I'm not seeing the Supremes taking up the dildo issue. I could be wrong, but I'm guessing this one doesn't get cert.

[Greta Christina]

Well, shut my mouth. I thought that decisions made by Federal appeals courts affected the whole country. And the way the media covered this story was certainly making it seem that way. Thanks for the correction, Jon.

[Skoochie]

>> And straight people have a personal vested interest in fighting for gay rights. <<

I can't believe more people don't realize this. As a single straight woman who wants to have sex but not babies, my demographic is right below 'THE GAYS' on some people's list of social problems. After that, married women who want contraceptives, and on and on. So yes -- a resounding "thank you!"

[Procrustes]

Bravo!

Thanks for reminding us that we're all in this together, and that our best interests rely heavily on the successful establishment of civil and personal rights of everyone, even if based on characteristics we don't share.

Also, outstanding blog. A great addition to my blogroll.

-Pro

[Vibe King]

There are some people who is sick just use the stuff for there pleasure to hurt somebody.It has implications for sadomasochists. Fetishists. Swingers that is totally unlawful.

(URL deleted due to commercial content - GC)

[The Vibrator Guy]

I too was under the impression that anything happening in a Federal court would work on a national basis. It's very unfortunate that so many people believe that by removing the rights of any group of people that their rights aren't in peril also. This was a great ruling and even if it never makes the Supreme Court most other states never would allow the laws that Texas had.

(URL deleted due to commercial content - GC)

[Vibrator Queen]

Excellent post Greta!

This case was never about vibrators and other erotic products. It is about one group of people criminalizing the activities of those who do not share their ideology.

(URL deleted due to commercial content - GC)

[Greta Christina]

I am closing comments on this thread, as it has become a magnet for commercial comment spam. Sorry. -GC