Texas bans the possession of or promoting the use of more than six dildos.
OK, you KB members from Texas. Time to toss all your sex toys over the count of six or face jail time and/or a fine.
My question besides the obvious is how did they come to agree on six dildos?
I turn this over to Toe. He can explain the constitutionality of this law.
Section 43.23 of the Texas Penal Code states: "A person commits an offense if, knowing its content and character, he wholesale promotes or possesses with intent to wholesale promote any obscene material or obscene device." Another provision specifies: "
A person who possesses six or more obscene devices or identical or similar obscene articles is presumed to possess them with intent to promote the same," the implication being that the person would violate the restriction on promoting such devices.
In ruling against the state in February 2008, judges on the 5th U.S. Circuit Court of Appeals cited Lawrence and Garner v. Texas, the U.S. Supreme Court's 2003 opinion striking down bans on consensual sex between gay couples, in violation of the 14th Amendment. State lawyers did not appeal the dildo ruling to the U.S. Supreme Court.
"Just as in Lawrence," the circuit court judges wrote, "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 after Lawrence."
Lawyers familiar with the appeals court ruling agreed, when we asked, that the sexual devices statute remains in Texas law — but that’s an empty reality, most said.
James C. Todd, a since-retired Texas assistant attorney general who defended the law in federal district court, said by phone he wasn’t surprised that legislators haven’t acted to repeal the law. His speculation: "They don’t want to go back and in the next election have it said (that) my opponent voted against a law to prohibit indecency."
Todd said that while the law remains on the books, it’s unenforceable; since it’s declared unconstitutional, no prosecutor would prosecute someone for violating it, he said.