This must have a rational basis, too

Hat-tip to Ann at Feministing: the Supreme Court refused to hear an appeal of Acosta v. Texas, a challenge to the Texas law banning sex toys.

[Link] An adult bookstore employee in El Paso, Texas, sued the state after his arrest for showing two undercover officers a device shaped like a penis and telling the female officer the device would arouse and gratify her.

The employee, Ignacio Sergio Acosta, says a Texas law outlawing the manufacture, marketing or dissemination of an “obscene device” including those shaped like sex organs is unconstitutional because it prevents individuals from using such devices, violating their right to sexual privacy.


An El Paso County court granted Acosta’s motion to dismiss a criminal complaint against him, but an appeals court reinstated it, saying the Texas law did not infringe on private sexual behavior.

The bar against promoting obscene devices has been found in other court cases not to infringe on a right to use obscene devices at home, the court of appeals for the Eighth District of Texas ruled.

I haven’t read the court of appeals’ decision, but I’m pretty sure the majority opinion twists itself into interesting shapes trying to argue that there is a rational basis for the decision. Sex toys don’t cause any harm and are no hazard to anyone; there is no compelling interest to ban them.

Here’s where Amartya Sen’s concept of competencies comes in. To use a more straightforward example, take spying: it may be that you have the right not to have your private communications monitored, but if the government institutes regulations in such a way that you can’t communicate with people in any non-public way, you still have no right to privacy.

Similarly, the right to sex in any way you and any partner like is an integral part of the right to privacy; banning non-hazardous sex toys at the point of origin is thus no different from banning them in private bedrooms, which is clearly an invasion of privacy.

One Response to This must have a rational basis, too

  1. anon says:

    Reminds me of a nasty little comic called flem. WARNING NSFW:

    They’re cake toppers, heheh. It’s one of those guilty pleasures, or else just nasty. Trust me, it’s pretty bad.

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