From the Texas Supreme Court’s 5th U.S. Circuit Court of Appeals’ decision regarding a Texas law which banned owning more than six sex toys:
“To determine the constitutional standard applicable to this claim, we must address what right is at stake. Plaintiffs claim that the right at stake is the individual’s substantive due process right to engage in private intimate conduct free from government intrusion. The State proposes a different right for the Plaintiffs: “the right to stimulate one’s genitals for non-medical purposes unrelated to procreation or outside of an interpersonal relationship.”
Hilzoy points out that these sort of arguments about how to frame Constitutional questions come up all the time:
The Constitution does not mention Mormon Temple Garments, for instance, and it certainly does not explicitly grant a right to wear any particular style of underwear. But it does grant the right to freedom of religion, and absent some compelling state interest in regulating underwear, this means that Mormons have the right to wear their Temple Garments, however ludicrous questions like “do you mean to say that the right to wear a particular sort of underwear is guaranteed in the Constitution?” might sound. […]
I mention this only because I’m tired of hearing arguments of the form: The Constitution does not mention X, so how can there be a constitutional right to X? (For X equal to: abortion, medicinal marijuana, etc., etc., etc.)
The Court didn’t buy the state’s framing, by the way, so any Texas readers should feel free to buy any number of sex toys today.
I really don’t get the “where does the constitution mention X” arguments. I thought the Ninth and Tenth amendments pretty much said that you can do anything NOT explicitly prohibited. Of course, that was before the commerce clause expanded to include everything under the sun so….
Can you clarify the aim of the first quote? I can’t tell if it is supposed to be for or against the ban.
wait a minute, Texas supreme court? i thought this was before the Fifth Circuit? or so, at least, says Ed Brayton: http://scienceblogs.com/dispatches/2008/02/5th_circuit_overturns_texas_di.php
Oops! Thanks for catching that, Nomen; I’ve corrected my post.
outlier, that quote comes from a decision overturning the law, but the quote itself just lays out the disagreement. Now let’s see if the Supreme Court reverses Lawrence v Texas. I strongly doubt it — I think they’ll uphold this decision — but then I didn’t think it would take so long for the government to admit these laws seem ridiculous in the light of Lawrence.
Who’s going door to door counting dildos? Was this a single purchase, or did someone pull the store’s records, or what?
Hey, it’s an honest job.
What? I needed the money!
I think that the limit has to do with making stores that sell vibrators/dildos/etc illegal, since they would pretty clearly need to keep more then six in stock.
—Myca
I think the law existed not to make people enforce/obey it but to make a statement (incidentally destroying respect for the law). And I vaguely recall a Texas feminist saying they asked
peoplewomen to promise at time of purchase that they’d use the dildos for scientific purposes. It’s the kind of oath inflation that I hate with a burning passion.Scientific purposes? I should have stayed a biochemist instead of going into IT. How do I get a job in that lab?
Seriously – myca, the law applied to commercial establishments selling them? I just made the presumption that they were going after private parties, not stores. Were they going door to door to sex shops, then?
hf – what, you think women are the only people using dildos out there? Or is the point that they only asked women, not men, to make a statement on what they were going to use the dildo for?
That was more of a joke. And they didn’t go after anyone, as far as I know. Check the quote. It says “plaintiffs”, not defendants. Apparently, “They sought a declaratory judgment prohibiting the enforcement of the statute.” And it sounds like the prosecutor would have gone after stores that didn’t use these idiot beards (I don’t know the right term for a deception that you don’t expect anyone to believe).
I don’t know the right term for a deception that you don’t expect anyone to believe
“Senator Clinton’s press conference”