Hard to believe, but in some places in the United States, it's illegal to sell sex toys. Something about legislating morality and keeping dildos away from the children. Slowly but surely, though, those laws are being struck down. It's interesting to think about why.

In 1986, the Supreme Court ruled that there is no constitutional right to engage in sodomy. That case, Bowers v. Hardwick, was an abomination for the gay community. True, gays were becoming more and more accepted in our society 22 years ago, but no one told the Supreme Court about this. The Bowers decision was notorious for its condescending tone towards gay sex.

The Supreme Court has moved further to the right since 1986, so everyone was shocked when the Court in 2003 when the Court overruled Bowers and struck down the sodomy law that had criminalized homosexual sex in Texas. "The majority held that intimate consensual sexual conduct was part of the liberty protected by substantive due process under the Fourteenth Amendment. Lawrence has the effect of invalidating similar laws throughout the United States that purport to criminalize homosexual activity between consenting adults acting in private. It may also invalidate the application of sodomy laws to heterosexual sex based solely on morality concerns."

When the Supreme Court hands down a ruling, lawyers around the country think about how that ruling affects their existing cases and also how that ruling can support new cases. Adventurous lawyers who wanted to challenge the laws making it illegal to sell sex toys used the Lawrence decision as part of their legal arguments. It worked last week.

A Federal appeals court in the South (the Fifth Circuit, for you lawyers out there) ruled that the reasoning in Lawrence means that the State of Texas cannot make it illegal to sell sex devices. As the appeals court put it, with certain exceptions not relevant here, "the statute criminalizes the selling, advertising, giving, or lending of a device designed or marketed for sexual stimulation." That means it was illegal for Fred to give Wilma a vibrator. For some reason, the law did not make it illegal to own a sex toy. So it was legal for Wilma to use it. Fred goes to jail.

The shocking thing about laws like this is that they are enacted at all. When George W. Bush ran for president in 2000, he told us that his experience as governor of Texas made him qualified to be president. This law was not passed on Bush's watch, but, really, is this the sort of shit that governors do all day? If so, not anymore. According to the appellate court, if the Supreme Court in Lawrence ruled that private intimate conduct at home cannot be regulated by the government, then the state cannot make it illegal to sell or give away sex toys. The crux of the opinion:

Just as in Lawrence, the State here wants to use its laws to enforce a public moral code by restricting private intimate conduct. The case is not about public sex. It is not about controlling commerce in sex. It is about controlling what people do in the privacy of their own homes because the State is morally opposed to a certain type of consensual private intimate conduct. This is an insufficient justification for the statute after Lawrence.