The Fifth Circuit, over a spirited dissent, has denied rehearing en banc in Reliable Consultants Inc. v. Earle, 2008 WL 29411355 , in which a panel had ruled that a Texas law banning the sale of sex toys was unconstitutional. 517 F.3d 738 (5th Cir. 2008).(For more background, see Leonard Link.) What is interesting here is that the Eleventh Circuit had upheld a very similar Alabama statute only last year. Williams v. Morgan, 478 F.3d 1316 (11th Cir. 2007). This means that there is a split in the circuits on the question of the constitutionality of such (truly ridiculous) laws, which is the prime basis upon which the Supreme Court grants petitions for certiorari. Eugene Volokh has predicted that the Supremes will grant cert. I disagree.
First, the issue is likely to discomfit the Justices – it’s just too undignified. So I think the Justices will be open to any plausible reason to deny cert. A simple one is that the case is not important, and importance too is one of the criteria for granting review. The lack of importance stems not just from the lack of gravitas, but also from the extremely limited nature of the facts, specifically the point that only two states other than Texas and Alabama have these statutes to begin with (Mississippi and Virginia). 517 F.3d at 741. So especially for a court that likes to limit its docket to cases truly worthy of its attention, the question of statutory validity here is unlikely to seem weighty enough to merit review. (The Court denied cert in the 11th Circuit case last year – 128 S. Ct. 77 – but because there was at that point no circuit split, one cannot based any prediction on that fact.)
The doctrinally significant question raised by the sex toys litigation is whether the Court in Lawrence v. Texas intended to limit the impact of a protected liberty interest to relationships between individuals (which, given the actual facts of Lawrence, would have to include a one-night stand), as some commenters have suggested. Alternatively, more in line with the text of the decision, the Court’s ruling in Lawrence could be read more broadly as a prohibition against a state criminalizing harmless consensual adult sexual behavior based on the invocation of "morality" and as giving the individual’s interest in sexual autonomy or privacy heftier weight, requiring that a state have more than a minimally rational basis for abridging (even assuming that "morality" without harm would constitute a rational basis). This is essentially what the circuit split is about.
Because the Fifth Circuit has now adopted the broader, in my view correct, reading of the meaning of Lawrence, a grant of cert to possibly overrule it would have to come from the conservative wing of the Court. In other words, a minimum of four conservative Justices would have to agree that the Court should use the sex toys case as the vehicle for revisiting this classic morality-versus-harm question. Scalia? Maybe. Thomas? He thought the Texas sodomy law was silly; hard to believe he would want to spend time on this one. The new Chief Justice? Alito? There is no way to know about these two, since neither was a member of the Court when Lawrence was decided. But my bet is no.
So, although we don’t know yet whether Texas will even file a cert petition in this case, I’m going out on a limb and predicting that even if they do, the Court will decline to grant it.