Houston sex-toy sellers hail federal court's ruling
35-year-old Texas law that banned the items overturned by appeals court
Houston Chronicle
Houston's adult bookstore backers Wednesday hailed a federal court's decision to overturn a 35-year-old state law that banned promotion or sale of sex toys. But the decision won't go into effect until the court issues its mandate in early March — long after the industry's lucrative pre-Valentine's Day season.
Houston Chronicle
Houston's adult bookstore backers Wednesday hailed a federal court's decision to overturn a 35-year-old state law that banned promotion or sale of sex toys. But the decision won't go into effect until the court issues its mandate in early March — long after the industry's lucrative pre-Valentine's Day season.
A three-judge panel of the 5th U.S. Circuit Court of Appeals ruled that the law violates the privacy protections of the 14th Amendment.
What the judges wrote
"Just as in Lawrence, the state here wants to use its law to enforce a public moral code by restricting private intimate conduct," the judges wrote in the 2-1 ruling. "This 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 of consensual private intimate conduct."
The judges alluded to Lawrence v. Texas, a Houston case that resulted in the U.S. Supreme Court overturning the state's sodomy law in 2003.
"I've been anticipating this for some time," said Ray Hill, consultant for a number of local adult bookstores. "The same justification has been used to reverse similar laws in other jurisdictions. As recently as last week a store was busted on Telephone Road. They confiscated dozens of items and carried the clerk off to jail."
Hill charged that the law has resulted in few local convictions, but has been used to "bully and intimidate minimum wage employees" who typically are arrested in police raids."This is a happy day for us," said Gino Barone, who owns Carmens Boutique and Videos, which has four Houston locations. "We found our customers want these items. Ladies, couples come to buy. The demand is so great. This law was so ridiculous. ... It's time we got the government out of their lives."
A Houston police spokesman said raids invariably were based on citizen complaints and took place only after a thorough documentation of alleged illegalities.
Barone said he sold the sex novelties despite the legal ban. "Our stores are loaded with them," he said. "They tried to act like this was some monster. This was only a toy."
Busy time of year
Barone said the days before Valentine's Day are among the busiest of the year.
This week's ruling grew out of a case in Austin pitting Reliable Consultants Inc., which owns adult outlets in Austin and San Antonio, against Travis County District Attorney Ronnie Earle. The United States District Court for the Western District of Texas earlier had upheld the law, which does not address possession of such items.
Tom Kelley, spokesman for the Texas Attorney General's Office, which intervened in the case on behalf of Earle, said a decision has not been made on whether to petition the New Orleans appeals court for a hearing before the full court.
Only Mississippi, Alabama and Virginia have obscene device laws similar to the one in Texas. Such laws in Louisiana, Kansas, Colorado and Georgia have been overturned by state or federal courts.
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