Monday, November 12, 2012
Manuel Possolo has posted Morals Legislation after Lawrence: Can States Criminalize the Sale of Sexual Devices? (Stanford Law Review, Forthcoming) on SSRN. Here is the abstract:
In Lawrence v. Texas, the Supreme Court struck down a Texas law criminalizing sexual relations between individuals of the same sex. The Court held that laws based in nothing more than moral disapproval lack a legitimate basis and are therefore unconstitutional. Despite the Court’s strong language, state and lower federal courts have made contradictory interpretations of Lawrence. In particular, the Fifth and Eleventh Circuits, and several state courts, disagree over the constitutional validity of laws criminalizing the sale of devices used for sexual stimulation. In this Note, I argue that the Fifth Circuit reached the right decision, holding that such laws are unconstitutional after Lawrence. In addition, this Note explores the Court’s evolving approach to morals legislation more generally. Part I examines where Lawrence came from and what exactly it said. Part II analyzes state and lower federal court decisions that disagree over the constitutional validity of laws criminalizing the sale of sexual devices. Part III explores the consequences that Lawrence might have on morals legislation going forward.