Morals Legislation After Lawrence: Can States Criminalize the Sale of Sexual Devices?
34 Pages Posted: 3 Nov 2012 Last revised: 3 Apr 2013
Date Written: November 1, 2012
In Lawrence v. Texas, the Supreme Court struck down a Texas law criminalizing sexual relations between individuals of the same sex. The Court held that laws based on nothing more than moral disapproval lack a legitimate basis and are therefore unconstitutional. Despite the Court’s strong language, state and lower federal courts have adopted contradictory interpretations of Lawrence. In particular, the Fifth and Eleventh Circuits, and several state courts, disagree over the constitutional validity of laws criminalizing the sale of devices used for sexual stimulation. In this Note, I argue that the Fifth Circuit reached the right decision, holding that such laws are unconstitutional after Lawrence. In addition, this Note explores the Court’s evolving approach to morals legislation more gen- erally. Part I examines where Lawrence came from and what exactly it said. Part II analyzes state and lower federal court decisions that disagree over the consti- tutional validity of laws criminalizing the sale of sexual devices. Part III explores the consequences that Lawrence might have for morals legislation going forward.
Keywords: morals legislation, equal protection, Lawrence, substantive due process, Romer, sexual devices
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