517 F.3d 738 (5th Cir. 2008), 06-51067, Reliable Consultants, Inc. v. Earle

Docket Nº:06-51067.
Citation:517 F.3d 738
Party Name:RELIABLE CONSULTANTS, INC., doing business as Dreamer's and Le Rouge Boutique, Plaintiff-Appellant, PHE, Inc., doing business as Adam and Eve, Inc., Intervenor-Plaintiff-Appellant, v. Ronnie EARLE, in his official capacity only, Travis County District Attorney, Defendant-Appellee, State of Texas, Intervenor-Defendant-Appellee.
Case Date:February 12, 2008
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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517 F.3d 738 (5th Cir. 2008)

RELIABLE CONSULTANTS, INC., doing business as Dreamer's and Le Rouge Boutique, Plaintiff-Appellant,

PHE, Inc., doing business as Adam and Eve, Inc., Intervenor-Plaintiff-Appellant,


Ronnie EARLE, in his official capacity only, Travis County District Attorney, Defendant-Appellee,

State of Texas, Intervenor-Defendant-Appellee.

No. 06-51067.

United States Court of Appeals, Fifth Circuit.

February 12, 2008

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[Copyrighted Material Omitted]

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H. Louis Sirkin (argued), Jennifer Marie Kinsley, Sirkin, Pinales & Schwartz, LLP, Cincinnati, OH, for Plaintiff-Appellant.

Elaine Agnes Casas, Jennifer Kraber, Austin, TX, for Earle.

Bill L. Davis (argued), Austin, TX, for State of Texas.

Appeal from the United States District Court for the Western District of Texas.

Before REAVLEY, BARKSDALE and PRADO, Circuit Judges.

REAVLEY, Circuit Judge:

This case assesses the constitutionality of a Texas statute making it a crime to promote or sell sexual devices. The district court upheld the statute's constitutionality and granted the State's motion to dismiss for failure to state a claim. We reverse the judgment and hold that the statute has provisions that violate the Fourteenth Amendment of the U.S. Constitution.

I. The Statute

The forerunner of Texas's obscenity statute was enacted in 1973 and had the modest goal of prohibiting "obscene material."1 Six years later, the legislature redefined "obscene material" so that it would track the Supreme Court's definition of obscenity detailed in Miller v. California.2 That same year, the legislature also expanded the scope of the statute so that it would prohibit the "promotion" and "wholesale promotion" of "obscene devices," which includes selling, giving, lending, distributing, or advertising for them.3 The legislature chose to broadly define "obscene device," not using the Miller test, but as any device "designed or marketed

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as useful primarily for the stimulation of human genital organs."4 In 1985, the Texas Court of Criminal Appeals held that the statute did not violate an individual's right to privacy, concluding that there was no constitutional right to "stimulate . . . another's genitals with an object designed or marketed as useful primarily for that purpose."5 Later, in 1993, a narrow affirmative defense was added to protect those who promoted "obscene devices" for "a bona fide medical, psychiatric, judicial, legislative, or law enforcement purpose."6 Violating the statute can result in punishment of up to two years in jail.7

In essence, the statute criminalizes the selling, advertising, giving, or lending of a device designed or marketed for sexual stimulation unless the defendant can prove that the device was sold, advertised, given, or lent for a statutorily-approved purpose. The statute, however, does not prohibit the use or possession of sexual devices for any purpose.

Besides Texas, only three states have a similar obscene-devices statute:

Mississippi, 8 Alabama, 9 and Virginia.10 The Mississippi supreme court has upheld its state's statute against First and Fourteenth Amendment challenges.11Neither the Alabama nor Virginia supreme court has entertained a challenge to its state's statute, but the Eleventh Circuit has rejected a Fourteenth Amendment challenge to Alabama's statute.12 On the other hand, while the legislatures of Louisiana, Kansas, and Colorado had enacted obscene-devices statutes, each of their respective state supreme courts struck down its law on Fourteenth Amendment grounds.13 Likewise, while the Georgia legislature had passed an obscene-device statute, the Eleventh Circuit recently struck it down.14

II. This Proceeding

Reliable Consultants, Inc. d/b/a Dreamer's and Le Rouge Boutique operates four retail stores in Texas that carry a stock of sexual devices. The sexual devices are for off-premise, private use. PHE, Inc. d/b/a Adam & Eve, Inc. is also engaged in the retail distribution of sexual devices. It

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operates no public facilities in Texas, but rather sells sexual devices by internet and mail, and it distributes sexual devices ordered in Texas by mail and common carrier. Reliable and PHE desire to increase their sale of, and advertising for, sexual devices in Texas, and they fear prosecution under the statute if they do so.

Reliable filed this declaratory action to challenge the constitutionality and enjoin the enforcement of the statutory provisions criminalizing the promotion of sexual devices. The complaint alleged that these provisions violate the substantive liberty rights protected by the Fourteenth Amendment and the commercial speech rights protected by the First Amendment. Later, PHE intervened as a plaintiff and sought similar relief.

Reliable and PHE contend that many people in Texas, both married and unmarried, use sexual devices as an aspect of their sexual experiences. For some couples in which one partner may be physically unable to engage in intercourse, or in which a contagious disease, such as HIV, precludes intercourse, these devices may be one of the only ways to engage in a safe, sexual relationship. Others use sexual devices to treat a variety of therapeutic needs, such as erectile dysfunction. Courts scrutinizing sexual-device bans in other states have explained that an "extensive review of the medical necessity for sexual devices" shows that "it is common for trained experts in the field of human sexual behavior to use sexual aids in the treatment of their male and female patients' sexual problems."15 Still other individuals use sexual devices for non-therapeutic personal reasons, such as a desire to refrain from premarital intercourse.16

The district court held, inter alia, that the statute does not violate the Fourteenth Amendment because there is no constitutionally protected right to publicly promote obscene devices. Plaintiffs appeal the judgment granting the motion to dismiss. We review the district court's dismissal for failure to state a claim de novo.17 The "court accepts all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff."18 To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead "enough facts to state a claim to relief that is plausible on its face."19

With those standards in mind, we hold that the statute violates the Fourteenth Amendment.

III. The Fourteenth Amendment

The Plaintiffs' claim is predicated upon the individual right under the Fourteenth

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Amendment to engage in private intimate conduct in the home without government intrusion. Because the asserted governmental interests for the law do not meet the applicable constitutional standard announced in Lawrence v. Texas, 20 the statute cannot be constitutionally enforced.

The State argues that Plaintiffs, who distribute sexual devices for profit, cannot assert the individual rights of their customers. This argument fails under the Supreme Court precedent holding that (1) bans on commercial transactions involving a product can unconstitutionally burden individual substantive due process rights and (2) lawsuits making this claim may be brought by providers of the product. In the landmark 1965 case of Griswold v. Connecticut, which invalidated a ban on the use of contraceptives, the Court recognized that the plaintiff pharmacists "have standing to raise the constitutional rights of the married people with whom they had a professional relationship."21 Other Supreme Court cases hold that businesses can assert the rights of their customers and that restricting the ability to purchase an item is tantamount to restricting that item's use.22 In line with these cases, the statute must be scrutinized for impermissible burdens on the constitutional rights of those who wish to use sexual devices.

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."23 The Court in Lawrence--where it overruled its decision in Bowers v. Hardwick24 and struck down Texas's sodomy ban--guides our decision:

To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse. The laws involved in Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home.25

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The right the Court recognized was not simply a right to engage in the sexual act itself, but instead a right to be free from governmental intrusion regarding "the most private human contact, sexual behavior." That Lawrence recognized this as a constitutional right is the only way to make sense of the fact that the Court explicitly chose to answer the following question in the affirmative: "We granted certiorari . . . [to resolve whether] petitioners' criminal convictions for adult consensual sexual intimacy in the home violate their vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment."26

The State also argues that Lawrence does not apply because the Court there was concerned with how the statute targeted a specific class of people. Justice O'Connor concurred in the majority's decision in Lawrence because she would have struck down the law on equal...

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