Fifth Circuit Judge Notes Split Re Interpretation of Lawrence as it applies to Commercial Activity

Per Reliable Consultants Inc. v. Earle, --- F.3d ----, 2008 WL 2941355 (5th Cir. Aug 01, 2008) (Garza, J., dissenting from the denial of rehearing en banc):

In construing the personal liberty interest announced in Lawrence to encompass commercial activity, the Reliable majority also split with an opinion of the Eleventh Circuit in a case strikingly similar to Reliable. See Williams, 378 F.3d at 1250. In Williams, the ACLU, on behalf of various individual users and vendors of sexual devices, filed a lawsuit seeking to enjoin an Alabama statute, which, like the challenged Texas statute here, prohibited the commercial distribution of such devices.FN6 Williams, 378 F.3d at 1233. The Williams Court began its analysis by observing that the Supreme Court never has recognized a broadly-defined fundamental right to "privacy" or to "personal autonomy." Id. at 1235 (citing Washington v. Glucksberg, 521 U.S. 702, 725, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997)). Nor, according to Williams, has the Supreme Court ever recognized a "free standing 'right to sexual privacy.' " Id. Indeed, Williams observed that the Supreme Court has at least twice declined to recognize a fundamental right to sexual privacy, choosing instead to define narrower liberty interests, specific to the cases at hand. See id. at 1235-36 (citing Carey v. Population Servs. Int'l, 431 U.S. 678, 688 n. 5, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977); Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003)). Finding no fundamental right, the Williams Court concluded that the narrow right announced in Lawrence did not extend to protect "the commercial distribution of sex toys," Williams, 378 F.3d at 1250, and thereby left untouched its pre- Lawrence decision, which, applying rational basis review, held that the Alabama statute did not violate the Fourteenth Amendment, Williams v. Pryor, 240 F.3d 944, 952 (11th Cir.2001). The Reliable majority's point of departure from Williams is their failure to recognize that the liberty interest announced in Lawrence is a narrow, personal one that does not extend to commercial activity. Notwithstanding the circuit-split that their opinion created, the Reliable majority made no effort to explain why, in their view, the Eleventh Circuit erred.


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