So the moral police are at it again and this time legislating from the bench. Texas went from banning dildos, vibrators and other "obcene toys" to allowing them under a declaration of the law being unconstitutional, and back again to a ban, at least in Corpus for now. Robert Guest wrote about a Court in Corpus Christi ignoring the ruling of a higher level federal court declaring that a Texas law banning "obcene" devices (dildos and other toys) to be unconstitutional:
§ 43.23. OBSCENITY. (a) 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.
An obscene device is a dildo, vibrator etc. Of all the things to waste law enforcement resources on, dildo prohibition is probably the most useless (marijuana would be a close second).
This brings us to a recent decision by the 13th District Court of Appeals in Corpus Christi-
Villareal vs. State
Facts (from the court’s opinion)-
On June 25, 2004, Corpus Christi Police Officer Adrian Dominguez was working undercover when he visited a business, called Friends 4 Ever, to determine if it was selling obscene materials or devices. Dominguez was aware that law enforcement agents had previously informed the business owner that the business needed to cease selling certain items that were considered obscene under state law. Appellant was at the business working as a cashier and sales clerk. During the visit, Dominguez purchased a vibrator from appellant; the vibrator was called "Lick it Lover" and resembled the male sexual organ. A few hours after Dominguez’s purchase, police officers arrived at the business, where they executed a search warrant and placed appellant under arrest.
You would think that a city with twice the national average for property crime, and 21 murders annually could find a better use of their undercover police. But I digress. A jury found Villareal guilty, and the judge sentenced her to 6 months in county jail!
Wait a minute, wasn’t that law declared unconstitutional?
That’s right. The federal 5th Circuit Court of Appeals issued an injunction in February declaring 43.23 unconstitutional. However, the Court of Appeals in Corpus Christi held that a federal court injunction is not binding on State courts. That is, until our state’s highest criminal court, the Court of Criminal Appeals, rules that 43.23 is unconstituional, the conviction still stands.
Now, it’s clear that the judges in Corpus recognize how untenable their position is. In their own words.
This Court thus remains duty-bound, for better or worse, to follow the rulings of the court of criminal appeals, which has held–in contrast to the Fifth Circuit–that section 43.23 does not violate the due process clause of the Fourteenth Amendment.
Why is it that Amerians have such a tyrannical view about sex? Oh no, someone has a dildo. Oh, what are we going to do, that is not "normal". After all I am seeing and experiencing, this is clearly a matter of this country having forgotten where we came from (multiple parts of Europe) and fleeing social and religious oppression… well, guess what, it looks like it is back. Only this time, there is not a land mass the size of the United States for those of us just appalled to move to and start a new country.
It is a basic principle of the judicial process that a State cannot give to one of its residents less freedoms than those provided by the federal system, thanks to the Fourteenth Amendment — Due Process clause. The real idiocy here is that the judge in Courpus Christi writing the opinion even recognized that. Hopefully, that judge will face some sort of sanction or other penalty for simply ignoring a higher court’s ruling. Or, maybe the voters will realize they have someone in office who should not be re-elected….
Until then, and at least in Corpus Christi—adults, be ware. Do not sell dildos, vibrators, and other adult-themed toys.
And in the mean time, if you can find it, watch this weeks episode of Boston Legal–one of the primary cases was about a sexual surrogate (mom) who was in the middle of a heated battle to retain custody of her daughter, as his father wanted to take her away (saying that mom was unfit). While I have mocked that show repeatedly, it is fun to watch sometimes as the characters say and do things that all of us lawyers have thought but few of us have done in order to avoid "contempt".