FACT CHECK: Are dildos really illegal in Texas?

Sexlaws

Earlier this week, i09.com published the above map illustrating “the weirdest sex laws in the United States.” While acknowledging that many sex laws you read about online are “urban legends,” i09.com went on to say that in Texas, “you can’t own more than six dildos.”

Up until 2008, this was actually true. Under Section 43.21 of the Texas Penal Code, first passed by the Legislature in the 1970s, it was illegal to sell “obscene devices” — or any device “including a dildo or artificial vagina, designed or marketed as useful primarily for the stimulation of human genital organs.”

However, in 2004, two adult store chains challenged the law, and in 2008, a federal appeals court struck it down as unconstitutional. A three-judge panel of the 5th U.S. Circuit Court of Appeals based its decision on the U.S. Supreme Court’s 2003 ruling in Lawrence. V. Texas.

“Because of Lawrence v. Texas, 539 U.S. 558 (2003), the issue before us is whether the Texas statute impermissibly burdens the individual’s substantive due process right to engage in private intimate conduct of his or her choosing,” the majority wrote. “Contrary to the district court’s conclusion, we hold that the Texas law burdens this constitutional right. An individual who wants to legally use a safe sexual device during private intimate moments alone or with another is unable to legally purchase a device in Texas, which heavily burdens a constitutional right.”

Republican Texas Attorney General Greg Abbott defended the dildo ban, arguing that the state had “morality based” reasons for the law, including “discouraging prurient interests in autonomous sex and the pursuit of sexual gratification unrelated to procreation.” Following the 5th Circuit ruling, Abbott’s office requested a rehearing en banc, but the court declined.

Although the i09.com map is technically wrong, it serves as a timely reminder about the Republican frontrunner for Texas governor in 2014.

As the Texas Tribune noted recently, while the attorney general is charged with defending state laws, he has discretion over how aggressively to do so. For example, former AG Jim Mattox once withdrew an appeal defending the state’s sodomy law because he agreed it was unconstitutional.

In the case of the dildo ban, Abbott’s decision to appeal — and then request a rehearing en banc — indicates that he agreed with the law.

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