## Facts

- Texas Penal Code §§ 43.21–.23 criminalized the “promotion” and “wholesale promotion” of “obscene devices,” defined as any device designed or marketed as useful primarily for stimulation of human genital organs.
- “Promotion” included selling, giving, lending, distributing, or advertising such devices; violations were punishable as state jail felonies, with up to two years’ imprisonment.
- Reliable Consultants, Inc. operated adult retail stores in Texas that sold sexual devices.
- PHE, Inc., doing business as Adam & Eve, sold sexual devices to Texas customers via mail and the internet and intervened as a plaintiff.
- Plaintiffs alleged the statute effectively prevented adults from obtaining sexual devices for private, consensual intimate conduct and therefore violated the Fourteenth Amendment after *Lawrence v. Texas*.
- Texas defended the statute as serving public morality and public-welfare interests, including discouraging non-procreative sex, discouraging commercialized sex, and protecting minors and unwilling adults from exposure.
- The district court granted the State’s Rule 12(b)(6) motion to dismiss and upheld the statute; plaintiffs appealed.

## Issues

1. Whether a state may criminalize the promotion and sale of sexual devices when doing so burdens adults’ substantive due process liberty to engage in private, consensual intimate conduct.
2. Whether asserted interests in public morality, discouraging certain sexual behavior, and protecting minors or unwilling adults provide a sufficient constitutional basis for the statute’s broad ban.

## Decision

- The Fifth Circuit reversed the district court’s dismissal.
- The court held the statute impermissibly burdened substantive due process rights protected by the Fourteenth Amendment as understood in *Lawrence v. Texas*.
- The court rejected public morality, standing alone, as an adequate justification for a law aimed at controlling private, consensual adult sexual choices.
- The court concluded the statute’s breadth was not rationally connected to the State’s asserted interests in protecting minors or unwilling adults, given less restrictive regulatory options.
- The case was remanded for further proceedings consistent with the holding; enforcement of the challenged provisions as written was barred.

## Legal Principles

- Substantive due process protects adult, private, consensual intimate conduct from criminal regulation grounded primarily in moral disapproval.
- A state law may violate substantive due process even if it regulates commercial conduct, when the regulation functionally obstructs access necessary to exercise protected intimate choices in private.
- Public morality alone is insufficient to justify criminal restrictions that target private, consensual sexual conduct protected by *Lawrence*.
- When a statute broadly criminalizes adult commerce unrelated to minors or public exposure, the absence of a reasonable fit between means and asserted public-welfare ends supports invalidation under rational-basis review as applied in this context.

## Conclusion

The Fifth Circuit held that Texas’s criminal ban on promoting and selling sexual devices violated the Fourteenth Amendment because it effectively burdened adults’ ability to engage in private, consensual intimate conduct, and the State’s morality-based and public-welfare rationales did not constitutionally justify the statute’s sweeping scope.


Reliable Consultants, Inc. v. Earle, 517 F.3d 738 (5th Cir. 2008)