Reliable Consultants, Inc. v. Earle, 06-51067.

• Decision Date: 01 August 2008
• Docket Number: No. 06-51067.,06-51067.
• Citation: 538 F.3d 355
• Parties: 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.
• Court: U.S. Court of Appeals — Fifth Circuit

538 F.3d 355

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.

No. 06-51067.

United States Court of Appeals, Fifth Circuit.

August 1, 2008.

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

Elaine Agnes Casas, Jennifer Kraber, Austin, TX, for Defendant-Appellee.

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

Julie M. Carpenter, Duane Charles Pozza (argued), Jenner & Block, LLP, Washington, DC, for Intervenor-Plaintiff-Appellant.

Appeals from the United States District Court for the Western District of Texas; Lee Yeakel, Judge.

ON PETITION FOR REHEARING EN BANC

(Opinion Feb. 12, 2008, 5 Cir., 2008, 517 F.3d 738)

Before REAVLEY, BARKSDALE and PRADO, Circuit Judges.

PER CURIAM:

Treating the Petition for Rehearing En Banc as a Petition for Panel Rehearing, the Petition for Panel Rehearing is DENIED. The court having been polled at the request of one of the members of the court and a majority of the judges who are in regular active service and not disqualified not having voted in favor (FED. R. APP. P. and 5TH CIR. R. 35), the Petition for Rehearing En Banc is DENIED.

EDITH H. JONES, Chief Judge, together with E. GRADY JOLLY, JERRY E. SMITH, EDITH BROWN CLEMENT and OWEN, Circuit Judges, dissenting from the denial of rehearing en banc:

Part I of Judge Emilio Garza's dissent, infra, explains well why the procedural and substantive flaws embodied in the Reliable panel opinion should have warranted en banc rehearing by this court. To summarize, Reliable extends Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) without warrant;¹ conflicts with the decisions of other circuits; overrules sub silentio a prior controlling decision of this court; and ignores the obvious tension between its result and Supreme Court precedent upholding similar sexual device legislation. Far from being "compelled" by Lawrence to overturn the Texas sexual devices statute, the Reliable majority exploited the decision's broad and vague statements about liberty while ignoring the Court's self-imposed limits on its implications.

The Supreme Court alone will ultimately decide how far and on what basis Lawrence extends beyond the scope of conduct there given constitutional protection. It is not for lower courts, in our view, to leverage Lawrence into overriding all sorts of "morals" laws in defiance of the democratic processes that produced them. Lawrence did not disavow Chief Justice Rehnquist's admonition in Washington v. Glucksberg:

But we "ha[ve] always been reluctant to expand the concept of substantive due process because the guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended." Collins v. City of Harker Heights, 503 U.S. 115, 125, 112 S.Ct. 1061, 1068, 117 L.Ed.2d 261 (1992). By extending constitutional protection to an asserted right or liberty interest, we, to a great extent, place the matter outside the arena of public debate and legislative action. We must therefore "exercise the utmost care whenever we are asked to break new ground in this field," ibid., lest the liberty interest protected by the Due Process clause be subtly transformed into the policy preferences of the Members of this Court. Moore v. City of East Cleveland, 431 U.S. 494, 502, 97 S.Ct. 1932, 1937, 52 L.Ed.2d 531 (1977) (plurality opinion).

521 U.S. 702, 720, 117 S.Ct. 2258, 2267-68, 138 L.Ed.2d 772 (1997) (full citations supplied). Whatever the policy preferences of the Reliable majority may be, I respectfully doubt that the Members of the Supreme Court intended Lawrence to place "outside the arena of public debate and legislative action" Texas's prohibition (with exceptions) on selling sexual devices.

Because it is enough to differ with the majority's extension of Lawrence in this case, we need not adopt parts II and III of Judge Garza's dissent.

EMILIO M. GARZA, Circuit Judge, dissenting from the denial of rehearing en banc:

The Fourteenth Amendment protects our highest aspirations as persons and as citizens of the United States:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

U.S. CONST. amend. XIV § 1 (emphasis added).

A panel of this Court relying on Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), has held effectively that the Fourteenth Amendment protects a "substantive due process right," Reliable Consultants, Inc. v. Earle, 517 F.3d 738, 744 (5th Cir.2008), to promote a device "designed and marketed as useful primarily for stimulation of the human genital organs," TEX. PENAL CODE ANN. §§ 43.21-23 (Vernon 2003 & Supp.2007). See Reliable, 517 F.3d at 747. Because of Lawrence, this Court declined to reconsider Reliable en banc. It is precisely because of the Lawrence opinion and the Reliable majority's unwarranted extension of Lawrence that I would grant rehearing en banc.

I

In Reliable, two retail distributors of sexual devices sought to increase their sales of and advertising for sexual devices in Texas. Faced with a Texas statute prohibiting the promotion of such devices,¹ these businesses sought a declaratory judgment to hold the statute unconstitutional and permanently enjoin its enforcement. See Reliable, 517 F.3d at 741-42. Based on their understanding of Lawrence, the Reliable majority held that the Texas statute "impermissibly burden[ed] the individual's substantive due process right to engage in private intimate conduct of his or her choosing." Id. at 744. Accordingly, the Reliable majority struck down the statute. In my view, the Reliable majority made two critical errors: they misunderstood the right announced in Lawrence, and they extended that right far beyond its limits.

In Lawrence, Houston police officers were dispatched to a private residence in response to a reported weapons disturbance. Upon entering, they observed the resident, one "Lawrence," engaging in a sexual act with another man; the officers arrested the two men who were later convicted of the crime of "deviate sexual intercourse, namely anal sex, with a member of the same sex (man)." Lawrence 539 U.S. at 562-63, 123 S.Ct. 2472. At the time, Texas law provided: "A person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex." TEX. PENAL CODE ANN. § 21.06(a) (2003).² The Lawrence Court framed the question presented as: "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." Lawrence, 539 U.S. at 564, 123 S.Ct. 2472. The Court answered this question in the affirmative.³

It is beyond dispute that the Supreme Court decided Lawrence as a substantive due process case. Analyzing a case under substantive due process, a court will apply one of two levels of scrutiny. If the challenged law infringes upon a fundamental right, a court applies strict scrutiny. See Reno v. Flores, 507 U.S. 292, 301-02, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993). If the challenged law infringes some other nonfundamental liberty interest, a court applies rational basis review. See Meyer v. Nebraska, 262 U.S. 390, 399-400, 43 S.Ct. 625, 67 L.Ed. 1042 (1923). The Court in Lawrence did not announce a fundamental right that would have triggered a strict scrutiny analysis but rather recognized only a narrow liberty interest protecting "two adults who, with full and mutual consent from each other, engage[ ] in sexual practices," 539 U.S. at 578, 123 S.Ct. 2472, "in the confines of their homes," id. at 567, 123 S.Ct. 2472.⁴ Accordingly, the Lawrence Court tested the constitutionality of the challenged statute under rational basis review, holding that the "Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual." Id. at 578, 123 S.Ct. 2472.

Although the Reliable majority seemed to acknowledge that Lawrence did not recognize a fundamental right, they failed to acknowledge that Lawrence recognized only a narrow liberty interest worthy of rational basis review. Instead, the majority recast the right announced in Lawrence as something outside of substantive due process jurisprudence entirely:

The Supreme Court did not address the classification nor do we need to do so, because the Court expressly held that "individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of `liberty' protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by the unmarried as well as married persons."

Reliable, 517 F.3d at 744-45 (quoting Lawrence, 539 U.S. at 578, 123 S.Ct. 2472). The Reliable majority thus avoided determining what level of scrutiny to apply to the statute. Id. at 749 (Barksdale, J., dissenting). Although from that point forward the majority applied some form of rationality review, their opinion proceeded largely untethered from precedent and in conflict with at least two of our sister Circuits. See Seegmiller v. Laverkin City, 528 F.3d 762, 771-72 (10th Cir.2008) (sustaining executive action under rational basis review in light of Lawrence); Williams v. Attorney General of Alabama, 378 F.3d 1232, 1236 (11th Cir.2004) (noting "the Lawrence opinion ... ultimately applied rational basis...