Law Review: Why the 5th Circuit is Correct About Lawrence
Satisfying Lawrence: The Fifth Circuit Strikes Ban on Sex Toy Sales
Jamie Iguchi, 43 U.C. Davis L. Rev. 655 (2009)
At its core, the disagreement between the circuits turns on the scope of the right announced in Lawrence and the standard of review it requires. Part I of this Comment introduces basic principles of substantive due process, the Lawrence decision, and Supreme Court decisions relating to restrictions on selling contraceptives. It also explains the current state of the law regarding sexual devices statutes. Part II examines the disagreement between the Eleventh Circuit’s decision in Williams v. Morgan and the Fifth Circuit’s holding in Reliable Consultants, Inc. v. Earle. Part III argues the Fifth Circuit’s result is correct. First, the Fifth Circuit did not attempt to construe Lawrence as either a strict scrutiny or rational basis case. Instead, it applied the unchallenged Lawrence principle that rejects public morality as a basis for laws affecting sexual privacy. Second, the Eleventh Circuit’s view is inconsistent with the Supreme Court’s precedent in contraception cases. The Eleventh Circuit allowed states to ban the sale of sex toys, so long as the states did not restrict their use. However, in cases where states had banned sales of contraception, the Supreme Court held that banning the sale of items is tantamount to banning their use. Third, this Comment argues the Fifth Circuit’s view better protects public health. Should the Supreme Court choose to resolve this circuit split, it should favor the Fifth Circuit’s view as a superior interpretation of Lawrence’s principles.