Toys Are Us: Sex Toys, Substantive Due Process, and the American Way


TOYS ARE US: SEX TOYS, SUBSTANTIVE DUE
PROCESS, AND THE AMERICAN WAY

CURTIS WALDO*

In the six years since the Supreme Court decided Lawrence v.
Texas,I circuit courts have disagreed over the proper standard of review for
statutes that implicate sexual privacy. 2 Two cases stand out: Williams v.
Attorney General of Alabama, from the Eleventh Circuit in 2004, 3 and
Reliable Consultants v. Earle, from the Fifth Circuit in 2008. 4 In Williams,
the court upheld an Alabama statute that prohibited the sale of sex toys;5 in
Reliable, the court struck down a Texas statute with similar wording.6 The
judges in both cases, whether writing for the majority or for the dissent,
measured the statutes against Justice Kennedy's opinion in Lawrence,7 but
their interpretations differed in significant respects. The majority in

* J.D. Candidate, Columbia Law School, 2010; B.A. University of Texas at

Austin, 2007. Thanks to Jamal Greene for input and guidance on numerous drafts, as well as
Sean Nelson and the other editors of the Columbia Journal of Gender and Law for all their
hard work.

1 539 U.S. 558 (2003).

2 See Brian Hawkins, Note, The Glucksberg Renaissance: Substantive Due Process
Since Lawrence v. Texas, 105 MIcH. L. REV. 409 (2006) (surveying substantive due process
claims after Lawrence); see also infra Part I.C.

3 Williams v. Attorney General of Alabama, 378 F.3d 1232 (11 th Cir. 2004).

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

5 Williams, 378 F.3d at 1233.

6 Reliable, 517 F.3d at 740.

7 See infra Part IL.A-B.

8 See Michael J. Hooi, Comment, Substantive Due Process: Sex Toys After

Lawrence, 60 FLA. L. REV. 507 (2008) (noting circuit split between Fifth and Eleventh
Circuits and urging Supreme Court to resolve). Texas has since declined to appeal the Fifth
Circuit's decision. See Mark Kernes, Sex Toy Sales Now Completely Legal in Fifth Circuit,
AVN, Nov. 2, 2008, http://www.avn.com/law/articles/33144.html (noting state's decision
not to file for writ of certiorari). Three states still prohibit the sale of sex toys and/or the
production and distribution of obscene material. See ALA. CODE § 13A-12-200.2 (2009); GA.



808 Columbia Journal of Gender and Law [Vol. 18:3

Williams, along with the dissent in Reliable, thought Lawrence required
rational basis review and that the sex toy statute would easily pass.
Conversely, the dissent in Williams believed that the Alabama statute
should be assessed under strict scrutiny but that it would fail even rational
basis review.9 Finally, the majority in Reliable was careful to apply neither
rational basis nor strict scrutiny, instead simply "apply[ing] Lawrence."'l

After Lawrence, those who have written about the circuit courts'
treatment of sex toy statutes have generally focused on the right to sexual
privacy threatened by these bans, which they contend that the majority in
Williams and the dissent in Reliable failed to appreciate." However, this
Article will argue that the circuit courts' disagreement in Williams and
Reliable is a result of the courts' continued, but misguided, practice of
evaluating the nature of the right asserted by the claimant.' 2 Lawrence
should be regarded as a retreat from this practice.' 3 The Lawrence Court,

CODE ANN. § 16-12-80 (2009); VA. CODE ANN. § 18.2-373 (2009). Alabama's ban on sex
toys and obscene materials has been upheld on two occasions: Williams v. Attorney General
ofAlabama, 378 F.3d 1232 (11 th Cir. 2004) and 1568 Montgomery Highway, Inc. v. City of
Hoover, 2009 WL 2903458 (Ala. Sept. 11, 2009). Mississippi also had a longstanding ban on
the sale of sex toys, but since Mississippi is located in the Fifth Circuit, this law is
presumably no longer valid.

9 See infra Parts II.A-B.

oReliable, 517 F.3d at 745.

The literature on sex toy cases is generally confined to Williams, as Reliable is a
more recent case. See Jota Borgmann, Hunting Expeditions: Perverting Substantive Due
Process and Undermining Sexual Privacy in the Pursuit of Moral Trophy Game, 15 UCLA
WOMEN'S L.J. 171 (2006) (criticizing Williams court for not protecting right to sexual
privacy); Shelly Elimelekh, The Constitutional Validity of Circuit Court Opinions Limiting
the Right to Sexual Privacy, 24 CARDOZO ARTS & ENT. L.J. 261 (2006) (same).

2 See infra Part I.A.

13 See infra Part I.B. Others have also argued that Lawrence may be a move away

from the strict scrutiny-rational basis dichotomy. See Randy E. Barnett, Justice Kennedy's
Libertarian Revolution: Lawrence v. Texas, 2003 CATO SUP. CT. REV. 21 (2003) (arguing
that Lawrence should usher in an era in which laws infringing on liberty are assumed to be
unconstitutional); Philip Chapman, Note, Beyond Gay Rights: Lawrence v. Texas and the
Promise of Liberty, 13 WM. & MARY BILL RTS. J. 245 (2004) (same). Barnett's method of
protecting liberty demands too much. It presumes a wide swath of activity to be protected,
and then allows the state to justify incursions onto any portion of that activity , as long as the
state's purpose is accomplished through a narrowly tailored means and is the least restrictive
alternative. In contrast, this Article's suggested approach, see infra Part III.A, would use a
more lenient standard in determining whether a law impermissibly infringes on liberty.



Toys Are Us

after finding that the statute at issue addressed a relationship that was
outside the proper realm of state action, 14 struck it down as prohibiting
activity which was "within the liberty of persons to choose. 15 What
Lawrence left unresolved was how future courts should determine when
state action impermissibly treads upon this "liberty." That is the problem
which this Article aims to solve.16

Part I will summarize the Court's modem substantive due process
cases, starting with Griswold v. Connecticut 7 and ending with Lawrence.
Part I.B argues that Lawrence applied neither rational basis nor strict
scrutiny review. Part I.C considers how scholars and judges have
interpreted Lawrence. Part I.D concludes that after Lawrence, the
preservation of public morality can no longer be the sole justification for
restricting liberty.

Part II explores the split between the Eleventh Circuit's Williams
opinion and the Fifth Circuit's judgment in Reliable. It argues that their
primary shortcoming is that they assume, even after Lawrence, that
unenumerated rights may be protected only if they can be singled out and/or
classified as "fundamental."' 18 Finally, this section argues that reading
Lawrence to have created a right to sexual privacy, as several of the judges
in Williams and Reliable did, would not invalidate statutes prohibiting the
sale of sex toys. 19

Part III proposes an interpretation of Lawrence that embodies a
narrow but absolute right to liberty. The nature or importance of the right
being asserted is not important; what is important is the state's justification,
or lack thereof, for its choice to legislate in a certain area. Part III.A argues
that this justification can only be shown when the state's legislation
substantially relates to preventing harm. Part III.B addresses changes in pre-
Lawrence doctrine suggested by this Article, and Part III.C addresses the

However, if the law does impermissibly infringe on liberty, it should be struck down,

regardless of government interests.

14 See infra Part I.D.

15 Lawrence v. Texas, 539 U.S. 558, 567 (2003).

16 See infra Part III.

7 381 U.S. 479 (1965).

8 See infra Part II.A-B.

'9 See infra Part II.C.

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objection that a "substantial relation" standard might be too indeterminate.
Finally, Part II1.D demonstrates how this interpretation of Lawrence would
be applied to statutes banning the sale of sex toys, as well as to other cases.
Though most laws would survive this interpretation of Lawrence, those
banning the sale of sex toys, as well as various protectionist and
paternalistic laws, would most likely be struck down, 20 not because such
laws infringe on a fundamental right, 2' but because the state would have
difficulty justifying its actions in these areas.

Judicial treatments upholding the constitutionality of statutes
banning the sale of sex toys have generally relied on the distinction between
private, autonomous conduct (which cannot be banned), and public,
commercial conduct (which can be banned). Conversely, judicial opinions
and scholarly works advocating for the unconstitutionality of laws banning
the sale of sex toys have generally focused on the stifling impact such laws
have on the private, autonomous conduct of individuals who wish to use sex
toys. In focusing on the rights of vendors, this Article suggests a different,
but ultimately more consistent, approach than either side of this debate has
yet taken.

I. THE LAST FORTY YEARS OF SUBSTANTIVE DUE PROCESS:
FROM PRIVACY TO LIBERTY

Part LA of this Article discusses the modern history of substantive
due process. This is necessary in order to appreciate how Justice Kennedy's
analysis in Lawrence, discussed in Parts I.B and I.C, marked a shift away
from the fundamental/non-fundamental rights approach of previous
substantive due process cases. Part I.D argues that Lawrence should be read
to invalidate laws justified solely on the basis that they preserve public
morality.

A. Griswold Through Glucksberg

Griswold v. Connecticut is the typical starting point for a survey of
modern substantive due process cases.22 Although it did not explicitly rely

20 See infra Part 1I1.D.

21 See infra Part II.C.

22 381 U.S. 479 (1965). This is where Justice Kennedy started in Lawrence.
Lawrence v. Texas, 539 U.S. 558, 564 (2003). For a look at substantive due process before
Griswold, see generally EDWARD S. CORWIN, LIBERTY AGAINST GOVERNMENT 58-115
(1948) (discussing substantive due process in the state courts before the Civil War); James

810 [Vol. 18:3



2009] Toys Are Us 811

on substantive due process, 23 the Griswold Court struck down a Connecticut
law prohibiting the use of contraceptives. 24 The Court based its reasoning
on the "right to privacy," found in the penumbras of the First, Third, Fourth,
Fifth, and Ninth Amendments. 25 Griswold was followed two years later by
Loving v. Virginia,26 in which the Court ruled that anti-miscegenation
statutes violated not only the Equal Protection Clause of the Fourteenth
Amendment,27 but also the "vital personal right[]" to marry.28 In Roe v.

W. Ely, Jr., The Oxymoron Reconsidered Myth and Reality in the Origins of Substantive
Due Process, 16 CONST. COMMENT. 315 (1999) (finding that even before the Civil War, "due
process" was seen as protection against laws that transferred property from one person to
another without consent). The entire idea of substantive due process has also been criticized.
See, e.g., Ellis v. Hamilton, 669 F.2d 510, 512 (7th Cir. 1982) (Judge Posner writing that
substantive due process is an "exotic constitutional doctrine" and "ubiquitous oxymoron");
ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW 31

(1990) (arguing that substantive due process is a "sham"); JOHN HART ELY, DEMOCRACY AND
DISTRUST: A THEORY OF JUDICIAL REVIEW 18 (1980) [hereinafter, ELY, DEMOCRACY AND
DISTRUST] ("[W]e apparently need periodic reminding that 'substantive due process' is a
contradiction in terms-sort of like 'green pastel redness."').

23 Griswold, 381 U.S. at 481-82 ("Overtones of some arguments suggest that

Lochner should be our guide. But we decline that invitation.") (citations omitted).

24 Id. at 485.

" Id. at 483-84. In this way, Justice Douglas distinguished the privacy right at
issue in Griswold from the "natural law due process philosophy" of earlier substantive due
process decisions. Id. at 515 (Black, J., dissenting). Some have argued that by listing specific
privacy rights, the Constitution implicitly does not recognize any other privacy rights. See
Louis Henkin, Privacy andAutonomy, 74 COLUM. L. REV. 1410, 1421-22 (1974); Thomas E.
Kauper, Penumbras, Peripheries, Emanations, Things Fundamental and Things Forgotten:
The Griswold Case, 64 MICH. L. REV. 235, 252-53 (1964). But see CASS SUNSTEIN, ONE
CASE AT A TIME: JUDICIAL MINIMALISM ON THE SUPREME COURT 110 (1999) (arguing that
Griswold was about desuetude, as opposed to a broad right of privacy).

26 388 U.S. 1 (1967).

27 U.S. CONST. amend. XIV, § I.

28 Loving, 388 U.S. at 9. Some see Lawrence as an extension of Loving's promise

of equality in marriage. See, e.g., Pamela S. Karlan, Foreword: Loving Lawrence, 102 MICH.
L. REV. 1447, 1449 (2004) (arguing that the logic of Lawrence demands some recognition of
equality); Jason Montgomery, An Examination of Same-Sex Marriage and the Ramifications
of Lawrence v. Texas, 14 KAN. J.L. & PUB. POL'Y 687, 692 (2005) (same); Marc Stein,
Boutilier and the U.S. Supreme Court's Sexual Revolution, 23 LAW & HIST. REV. 491, 493
(2005) (arguing that Lawrence "revised the heteronormative vision of sexual freedom,
equality, and citizenship that had guided the Court since the 1960s"). But see Berta E.
Hemdindez-Truyol, Querying Lawrence, 65 OHIO ST. L.J. 1151, 1262 (2004) (criticizing



812 Columbia Journal of Gender and Law [Vol. 18:3

Wade,29 the Court explained that because the "right to personal privacy"
was fundamental, the state had to have a "compelling" interest before it
could regulate the choice of whether to have an abortion or not.3°

Four years later, the Court ruled in Carey v. Population Services
that prohibiting the sale of contraceptives was equivalent to prohibiting the
use of contraceptives for purposes of fundamental rights analysis, further
extending the right of privacy.3

1 As prohibiting the sale of contraceptives
placed a "significant burden" on the exercise of a fundamental right, such
laws were unconstitutional, even though they regulated commercial
relationships.

32

Nine years after Carey, the Court's extension of privacy rights was
interrupted by Bowers v. Hardwick, in which the Court upheld a ban on oral
and anal sex between consenting adults.33 Writing for the majority, Justice
White ruled that a homosexual right to engage in sodomy is not "deeply
rooted in this Nation's history and tradition or implicit in the concept of

Lawrence for not focusing on the subordination aspect of sodomy statutes); Robert C.L.
Moffat, "Not the Law's Business:" The Politics of Tolerance and the Enforcement of
Morality, 57 FLA. L. REV. 1097, 1128-29 (2005) (arguing that society is not yet ready for
constitutionally mandated gay marriage); Cass R. Sunstein, The Right to Marry, 26
CARDozo L. REV. 2081 (2005) (arguing that right to marry can better be understood as an
Equal Protection right, as opposed to substantive due process right). See also Goodridge v.
Dep't of Pub. Health, 798 N.E.2d 941 (Mass. 2003) (ruling that the Massachusetts
Constitution demands same-sex marriage and citing Lawrence as support).

" 410 U.S. 113 (1973).

30 Id. at 154-55. The Roe Court's decision to apply a right of privacy to abortion

has been criticized. See John H. Ely, The Wages of Crying Wolf- A Comment on Roe v.
Wade, 82 YALE L.J. 920, 930 (1973) (arguing that outlawing abortion is not about
"governmental snooping" into citizens' private lives). But see Philip Heymann & Douglas
Barzelay, The Forest and the Trees: Roe v. Wade and Its Critics, 53 B.U. L. REV. 765, 772
(1973) (arguing that the "core" of past privacy cases justifies some protection of abortion
right).

31431 U.S. 678 (1977).

32 Id. at 689. Limiting access to abortion or contraception, not to mention sex toys,

could be said to discriminate against women on the basis of sex. After all, women are
affected disproportionately by these limitations. For more on this view, see generally Ruth B.
Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N.C. L.
REv. 375, 382 (1985) (arguing that the abortion question should be seen in terms of women's
rights); Sylvia A. Law, Rethinking Sex and the Constitution, 132 U. PA. L. REV. 955 (1984)
(arguing that modem constitutional law has not sufficiently focused on sexual equality).

33 478 U.S. 186 (1986), overruled by Lawrence v. Texas, 539 U.S. 558 (2003).



2009] Toys Are Us 813

ordered liberty. 34 These were the hallmarks, according to White, of any
fundamental, unenumerated right.35 Four justices dissented, criticizing
White for framing the fundamental right in such a narrow way.36

Nineteen years after Roe,37 the Court reaffirmed Roe's "central
holding" in Casey v. Planned Parenthood.3 8 While the per curiam opinion
in Casey preserved Roe's casting of the choice to seek out an abortion as a
fundamental right, it shifted from a trimester analysis to an undue burden
standard, in which any law regulating a woman's choice to seek out an
abortion may not place an "undue burden" on the woman's fundamental
right.39 Casey was therefore a departure from the traditional practice of
applying strict scrutiny to violations of fundamental rights.40 Casey also
represented a change in how the Supreme Court spoke of fundamental
rights. The per curiam opinion emphasized balancing "liberty and the
demands of organized society." 41 Indeed, the Court recast Roe as having

34Id. at 194 (quoting Moore v. East Cleveland, 431 U.S. 494, 503 (1977)); Palko
v. Connecticut, 302 U.S. 319, 325 (1937). Many have criticized Justice White's choice to
phrase the right at stake in this way. See, e.g., Laurence H. Tribe & Michael C. Dorf, Levels
of Generality in the Definition of Rights, 57 U. CHIi L. REV. 1057, 1108 (1990) (calling
Justice White's phrasing "egregiously wrong").

35 Bowers, 478 U.S. at 191-92.

36 1d. at 199.

37 The closest Roe came to falling was most likely Webster v. Reproductive Health
Services, 492 U.S. 490 (1989), in which Justices Rehnquist, White, and Kennedy were
willing to relegate the right to abortion to a liberty interest that could have been overridden
by the state's rational interest in potential life. Id. at 520. Justice Scalia would have gone
even further, overturning Roe completely. Id. at 532. Roe was saved only by Justice
O'Connor, who believed the state could not place an undue burden on the woman's right to
attain an abortion. Id. at 530.

38 505 U.S. 833, 853 (1992).

39 Id. at 876. Some have lauded the undue burden standard as a "plausible and
coherent" reaction to the moral problems associated with abortion. See David A. Strauss,
Abortion, Toleration, and Moral Uncertainty, 1992 SuP. CT. REV. 1, 27. But see Michael
Stokes Paulsen, Captain James T. Kirk and the Enterprise of Constitutional Interpretation:
Some Modest Proposals from the Twenty-Third Century, 59 ALB. L. REV. 671, 679-81
(1995) (criticizing Casey as disingenuous).

40 See Louis D. Bilionis, The New Scrutiny, 51 EMORY L.J. 481, 496 (2002)

(calling the Casey undue burden standard an "intermediate standard of review").

41 Casey, 505 U.S. at 850 (quoting Poe v. Ullman, 367 U.S. 497, 542 (1961)
(Harlan, J., dissenting from dismissal on jurisdictional grounds)).



814 Columbia Journal of Gender and Law [Vol. 18:3

protected a "dimension of personal liberty. 'A2 The right to privacy in Roe
was now a subset of a general right to personal liberty.43

Compare the reasoning in Casey to the Court's analysis five years
later in Washington v. Glucksberg," in which Chief Justice Rehnquist
criticized the more open-ended approach of the per curiam opinion in
Casey.45 Eschewing Casey's "liberty" analysis, Rehnquist began by
"carefully formulating" the specific right at issue and then inquiring
"whether this asserted right has any place in our Nation's history. '46 Not
surprisingly, since Rehnquist was able to phrase the "right" at stake as the
"right to commit suicide which itself includes a right to assistance in doing
so,"47 it was not difficult for him to find evidence that the right to commit

4 1 Id. at 853.

43 Randy Barnett explored this transformation further in Barnett, supra note 13.
See also Steven G. Calabresi, The Tradition of the Written Constitution: Text, Precedent, and
Burke, 57 ALA. L. REV. 635, 680 (2006) (noting Justice Kennedy's switch from privacy to
liberty); Nan D. Hunter, Living with Lawrence, 88 MINN. L. REV. 1103, 1108-09 (2004)
(same); Lisa K. Parshall, Redefining Due Process Analysis: Justice Anthony M Kennedy and
the Concept of Emergent Rights, 69 ALB. L. REV. 237 (2005) (same). But see Dale Carpenter,
Is Lawrence Libertarian? 88 MINN. L. REV. 1140 (2004) (responding to Professor Barnett's
libertarian interpretation of Lawrence); Jamal Greene, Beyond Lawrence: Metaprivacy and
Punishment, 115 YALE L.J. 1862, 1872 (2006) (calling "Lawrence's libertarian overtures...
too brazen to be countenanced fully"); Cass R. Sunstein, What Did Lawrence Hold? Of
Autonomy, Desuetude, Sexuality, and Marriage, 55 SUP. CT. REV. 27, 60-61 (2003) (arguing
that Lawrence was primarily about striking down silly and generally unenforced laws and
will probably not have much of a practical impact on substantive due process jurisprudence);
Laurence H. Tribe, Lawrence v. Texas: The "Fundamental Right" that Dare Not Speak its
Name, 117 HARV. L. REV. 1893, 1938 n.174 (2004) (arguing that a libertarian interpretation
of Lawrence is "dubious").

44 521 U.S. 702 (1997).

"s See id. at 721-22. In his Glucksberg opinion, Rehnquist explicitly pointed out he
was not adopting Justice Harlan's substantive due process analysis in Poe. Id at 722 n.17.
The historical approach of Glucksberg has been criticized. See, e.g., Randy E. Barnett,
Scrutiny Land, 106 MICH. L. REV. 1479 (2008). But see Edward C. Lyons, Reason's
Freedom and the Dialectic of Ordered Liberty, 55 CLEV. ST. L. REV. 157, 232 (2007)
(arguing that Glucksberg offered a "better reading of constitutional substantive due process
analysis," compared to a reading emphasizing personal autonomy).

46 Glucksberg, 521 U.S. at 722-23. Rehnquist distinguished Casey and therefore

did not overrule it by arguing that while "many of the rights and liberties protected by the
Due Process Clause sound in personal autonomy . . . all important, intimate, and personal
decisions are [not] so protected." Id. at 727.



2009] Toys Are Us 815

suicide had not been historically protected. As such, the Court upheld
Washington's ban on assisted suicide.48

B. Lawrence v. Texas

Casey and Glucksberg sent mixed messages to lower courts about
how to approach substantive due process cases. 49 The Casey opinion
diminished the importance of the fundamental/non-fundamental rights
distinction; the Glucksberg approach rigidly depended on the distinction. 50

As Part I.B shows, Lawrence v. Texas51 represented a shift toward the
Casey approach, which placed less emphasis on a strict classification of
rights.

In Lawrence, Justice Kennedy, joined by four other Justices, struck
down a Texas statute that prohibited sodomy between homosexuals. 52

Extending the practice seen in Casey, Justice Kennedy framed the Court's
decision as protecting liberty, not privacy.53 For example, he wrote of a
liberty that protects persons from unwanted government intrusion,54 a
liberty under the Due Process Clause,55 and a substantive guarantee of
liberty. 56 In fact, one commentator noted that Justice Kennedy mentioned

47 Id. at 723. For more on the level of generality problem, see Tribe & Dorf, supra

note 34; infra Part II.BI.

48 See Glucksberg, 521 U.S. at 773 (Souter, J., concurring).

49 Scholars have noted this disparate treatment of unenumerated rights. See
Barnett, supra note 13 (noting conflict between Glucksberg and Casey); Lois Shepard,
Looking Forward With the Right of Privacy, 49 U. KAN. L. REv. 251, 263-64 (2001) ("While
Casey . . . may have suggested the demise of fundamental rights analysis, the Court in
Washington v. Glucksberg discussed and affirmed in principle the idea that rights of privacy
are fundamental rights deserving of strict scrutiny.").

50 See supra note 49 (citing scholars who have noted this difference).

"' 539 U.S. 558 (2003).
52 Id. at 567.

53 See supra note 43 and accompanying text (noting shift from privacy to liberty).

54 Lawrence, 539 U.S. at 562.

" Id. at 564.

56 Id. at 575.



Columbia Journal of Gender and Law

the right to "liberty" twenty-five times in Lawrence, whereas he discussed
privacy only in descriptive terms as to the conduct in question. 7 Indeed,
privacy shifted from the focal point in Griswold and Roe to a subset of a
general right to liberty after Casey and Lawrence.58

Justice Kennedy also never mentioned whether he was applying
"rational basis" or "strict scrutiny" review to the Texas statute. One could
argue that he applied rational basis review, as he did not engage in
Glucksberg analysis or mention the creation of any "new" fundamental
rights. Justice Kennedy also noted that the Texas statute "further[ed] no
legitimate state interest," 59 which recalls the rational basis test.

Justice Kennedy also discussed rights of "fundamental
significance" 60 and "vital interests." 61 These phrases imply more than
typical rational basis review. Additionally, Justice Kennedy adopted a
portion of Justice Stevens' dissent in Bowers, which read in part,
"individual decisions by married persons, concerning the intimacies of their
physical relationship, even when not intended to produce offspring, are a
form of 'liberty' protected by the Due Process Clause of the Fourteenth
Amendment. Moreover, this protection extends to intimate choices by
unmarried as well as married persons., 62 Therefore, if the choice to be
intimate with one's partner, even if procreation or marriage is not involved,
is a "form of 'liberty' protected by the Due Process Clause," then Justice

57 See Barnett, supra note 13.

58 See supra note 43 and accompanying text (noting shift from privacy to liberty).

59 Lawrence, 539 U.S. at 578.

60 Id. at 565.

61 Id at 564. Laurence Tribe has noted this "talismanic verbal formula." See Tribe,

supra note 43, at 1917 (referring to Kennedy's "protection of liberty under the Due Process
Clause [that] has a substantive dimension of fundamental significance in defining the rights
of a person." (quoting Lawrence v. Texas, 539 U.S. 558, 565 (2003))).

62 Lawrence, 539 U.S. at 577 (quoting Bowers v. Hardwick, 478 U.S. 186, 216
(1986) (Stevens, J., dissenting)).

816 [Vol. 18:3'



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Kennedy was protecting a fundamental right.63 If Justice Kennedy was
protecting a fundamental right, he must have been applying strict scrutiny. 64

This Article's argument is that Justice Kennedy applied neither
strict scrutiny nor rational basis review to the Texas sodomy statute. His
opinion in Lawrence contained no reference to Glucksberg's two-part
framework, and though Justice Kennedy did critique the historical approach
of the Bowers' majority,65 he never said that any particular right has a firm
"place in our Nation's traditions," as required in Glucksberg.66 Instead,
Justice Kennedy's approach was more straightforward. The Texas statute
sought to control a relationship that was within the liberty of people to
determine for themselves.67 Whether the right claimed was a right to engage
in sodomy, or a right to be left alone, or a right to sexual privacy, was not
the focus of the inquiry. In fact, although Justice Kennedy criticized the
narrow way in which the Bowers majority phrased the right at stake,68 as
Justice Scalia pointed out in dissent,69 Justice Kennedy never proposed a
different, "better" formulation.

Regardless of whether Justice Kennedy applied rational basis or
strict scrutiny to the Texas statute, he did identify the relationship at stake
and declare that the citizen's interest in such a relationship was "within the
liberty of persons to choose., 70 The state could not justify this restriction,
and so it was struck down. The wording of the right, therefore, was not

63 Id. Presumably this is because other such Fourteenth Amendment rights have
been labeled "fundamental" in the past.

64 This was the argument Judge Barkett made in dissent in Williams v. Attorney

General of Alabama, 378 F.3d 1232, 1252-53 (2004). For more discussion of Barkett's
Williams dissent, see infra Part II.A.

65 Bowers v. Hardwick, 478 U.S. 186 (1986), overruled by Lawrence v. Texas 539

U.S. 558 (2003).

66 Washington v. Glucksberg, 521 U.S. 702, 723 (1997). For an argument that

Lawrence could be read to implicitly overrule Glucksberg, see Diana Hassel, Sex and Death:
Lawrence's Liberty and Physician-Assisted Suicide, 9 U. PA. J. CONST. L. 1003 (2007). But
see Hawkins, supra note 2 (noting lower courts' reluctance to extend Lawrence).

67 Lawrence, 539 U.S. at 567.

68 Id. (characterizing the Bowers Court as having "misapprehended the claim of

liberty there presented to it").

69 For more on Justice Scalia's dissent, see infra Part I.C.2.

70 Lawrence 539 U.S. at 567.

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818 Columbia Journal of Gender and Law [Vol. 18:3

important; what was important was that the state was infringing on the
liberty of its citizens in a way that was not justifiable.

C. Scholarly Reaction to Lawrence

Many judges and commentators have speculated about what level
of scrutiny Justice Kennedy's opinion in Lawrence demands for laws that
may impermissibly infringe on liberty. 71 A related source of speculation
centers around laws Lawrence might invalidate and which laws might

72survive. Part I.C examines these questions in turn.

1. Level of Scrutiny Required

In regards to what level of scrutiny Lawrence demands, circuit
courts generally prefer remaining with the more conservative Glucksberg
approach,73 but responses have hardly been unanimous. Some have
interpreted Lawrence as a rational basis decision,74 while others have
interpreted Lawrence as having applied strict scrutiny.75 Still others have

76seen Lawrence as standing for an intermediate level of scrutiny.
Scholarly treatment of Lawrence has been similarly divided. Some

have assumed that Lawrence is a fundamental rights decision,77 and others

71 See infra notes 73-85 and accompanying text.

72 See infra notes 87-97 and accompanying text.

73 See Hawkins, supra note 2 (surveying substantive due process claims after
Lawrence and finding that most courts prefer the Glucksberg approach).

74 See Sylvester v. Fogley, 465 F.3d 851, 858 (8th Cir. 2006); Muth v. Frank, 412
F.3d 808, 818 (7th Cir. 2005); Williams v. Att'y Gen. of Ala., 378 F.3d 1232, 1238 (11th
Cir. 2004); Lofton v. Sec'y of the Dep't of Children & Family Servs., 358 F.3d 804, 817
(11 th Cir. 2004); Witt v. U.S. Dep't of Air Force, 444 F. Supp. 2d 1138, 1143 (W.D. Wash.
2006); United States v. Extreme Assocs., Inc., 352 F. Supp. 2d 578, 591 (W.D. Pa. 2005).

75 See Williams, 378 F.3d at 1252 (Barkett, J., dissenting); Fields v. Palmdale Sch.
Dist., 271 F. Supp. 2d 1217, 1221 (C.D. Cal. 2003) (including Lawrence within citations of
precedent establishing fundamental rights); Hudson Valley Black Press v. IRS, 307 F. Supp.
2d 543, 548 (S.D.N.Y. 2004) (same).

76 See United States v. Marcum, 60 M.J. 198 (C.A.A.F. 2004).

77 See Donald H.J. Hermann, Pulling the Fig Leaf Off the Right of Privacy: Sex
and the Constitution, 54 DEPAUL L. REV. 909, 910 (2005); Tribe, supra note 43, at 1917.



Toys Are Us

see it as a rational basis decision. 8 Some see Lawrence as suggesting an
intermediate, balancing approach to substantive due process cases.7 9

Still others see Lawrence as not having applied any specific level of
80 Soe avscrutiny, Some have argued, 1 for example, that Lawrence marks a return

to Justice Harlan's dissent in Poe v. Ullman, 82 in which Justice Harlan
argued that the Fourteenth Amendment 83 protects citizens against "all
substantial arbitrary impositions and purposeless restraints" on liberty.84

Still others have argued that Lawrence represents a shift toward a libertarian
approach to substantive due process analysis, in which laws that infringe on
the liberty of citizens are assumed to be unconstitutional.8 5 Judge Reavley
of the Fifth Circuit also took the position that Lawrence did not fit neatly
into either the strict scrutiny or the rational basis box.86

78 See Sarah Catherine Mowchan, A Supreme Court That is "Willing to Start Down

That Road": The Slippery Slope of Lawrence v. Texas, 17 REGENT U. L. REV. 125, 130-32
(2004); Sunstein, supra note 43 (arguing that courts will ultimately read Lawrence as narrow
decision); Note, Unfixing Lawrence, 118 HARv L. REV. 2858 (2005) (same).

79 See Donald L. Beschle, Lawrence Beyond Gay Rights: Taking the Rationality

Requirement for Justifying Criminal Statutes Seriously, 53 DRAKE L. REV. 231 (2005); John
G. Culhane, Writing On, Around and Through Lawrence v. Texas, 38 CREIGHTON L. REV.
493 (2005); Nancy C. Marcus, Beyond Romer and Lawrence: The Right to Privacy Comes
out of the Closet, 15 COLUM. J. GENDER & L. 355 (2006); Jerald A. Sharum, Comment,

Controlling Conduct: The Emerging Protection of Sodomy in the Military, 69 ALB. L. REV.
1195, 1202 (2006).

so This is the position taken by this Article. See supra Part I.B.

81 See, e.g., Hunter, supra note 43, at 1108-09.

82 367 U.S. 497 (1961).

83 U.S. CONST. amend. X1V, § 1.

84 Poe, 367 U.S. at 543 (Harlan, J., dissenting).

85 See, e.g., Barnett, supra note 13; Chapman, supra note 13. But see Karlan, supra

note 28, at 1449-50 (arguing that while Lawrence may not fit within the strict scrutiny-
rational basis framework, this is because cases involving homosexuals require another
framework altogether).

86 See Reliable Consultants, Inc. v. Earle, 517 F.3d 738 (2008). For more on the

Reliable case, see infra Part l.B.

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820 Columbia Journal of Gender and Law [Vol. 18:3

2. Types of Laws That Will Be Struck Down

Justice Scalia's dissent in Lawrence offered the most immediate,
and one of the more expansive, predictions of what types of laws might be
struck down under Lawrence.87 His dissent highlighted many of the changes
he thought the Court's opinion represented. 88 Specifically, Scalia predicted
that Justice Kennedy's opinion would lead to constitutionalizing same-sex
marriage.8 9 In responding to this portion of Scalia's dissent, Kennedy added
a disclaimer noting that Lawrence in no way affected same-sex marriage,
conduct involving minors, coercive conduct, or public conduct.90 Lawrence,
he said, involved only "personal and private" conduct.9

The problem, as Scalia pointed out, was that Kennedy's disclaimer
was a tautology.92 Of course the facts of Lawrence did not involve minors
or same-sex marriage. By itself, this does not mean that the reasoning of
Kennedy's opinion could not be applied to a different set of facts in the
future.

Not all predictions have been as far-reaching as Justice Scalia's.
Cass Sunstein has speculated that Lawrence would only strike down
unenforced, "silly" laws, and that a significant shift is unlikely. 93 On the
other hand, some authors have suggested that Lawrence might demand that

87 Perhaps ironically, Justice Scalia's dissent has now become the "authoritative"

guide to lower circuit courts as to the meaning of Lawrence. See Posting of Dale Carpenter
to Volokh Conspiracy, http://volokh.com/posts/1217696454.shtml (Aug. 2, 2008, 13:00
EST).

88 Lawrence v. Texas, 539 U.S. 558, 591 (2003) (Scalia, J., dissenting) ("What a

massive disruption of the current social order, therefore, the overruling of Bowers entails.").
89 Id. at 604.

90 Id. at 578. Neither Justice Kennedy nor Justice Scalia mentions the possibility

that Lawrence could require sex toy statutes to be struck down. For more on Lawrence's
relationship to same-sex marriage, see supra note 28.

91 Lawrence, 539 U.S. at 578.

92 One could also criticize Justice Kennedy's disclaimer as being internally

inconsistent with the rest of his opinion. See Tribe, supra note 43, at 1950-51 (arguing that
the Court's conception of harms that same-sex marriage would bring is the same set of harms
that the Court said was not sufficient to justify statutes banning sodomy).

93 Sunstein, supra note 43; Cass R. Sunstein, Liberty After Lawrence, 65 OHIO ST.
L.J. 1059 (2004). See also Note, supra note 78 (arguing that lower courts have not fully
embraced Lawrence, and so future extension is improbable).



Toys Are Us

many laws be struck down, including those against physician-assisted
suicide94 and growing marijuana for medicinal use.95 Laurence Tribe has
argued that despite Justice Kennedy's disclaimer to the contrary, laws
banning same-sex marriage and same-sex adoption are "bound to follow"
and be similarly struck down.96 Others have argued that Lawrence logically
requires statutes banning adult incest to be struck down.97

D. Lawrence as an End to Morals Legislation

Building off the scholarship discussed in Part I.C, this Article takes
the position that Lawrence will ultimately invalidate laws justified solely on
the basis that they preserve public morality.98 In light of the Court's recent
precedents, this shift is not as groundbreaking as some have made it out to
be.99 However, what is notable about this move in Lawrence is the Court's
focus on the state's justification for its law as opposed to the fundamental
nature of the right at stake.

Much of Lawrence's text suggests that preserving public morality
can no longer justify laws which infringe on liberty. For example, the Court
quoted its previous decision in Casey, which stated that it is not the Court's
place to "mandate [its] own moral code."' 00 The Court also adopted Justice

94 See Hassel, supra note 66.

95 See Barnett, supra note 45.

96 Tribe, supra note 43, at 1945. The Eleventh Circuit declined Professor Tribe's

invitation to apply Lawrence to same-sex adoption cases in Lofion v. Sec 'y of the Dep 't of
Children & Family Servs., 358 F.3d 804 (11 th Cir. 2004).

97 See infra note 313 and accompanying text (discussing Lawrence's implications
for incest).

98 Suzanne Goldberg has argued this. See Suzanne B. Goldberg, Morals-Based
Justifications for Lawmaking: Before and After Lawrence v. Texas, 88 MINN. L. REv. 1233,
1234-35 (2004) ("Rather than representing a break with tradition, Lawrence reflected the
Court's long-standing jurisprudential discomfort with explicit morals-based rationales for
lawmaking."). But see Greene, supra note 43, at 1872 (arguing that "[Lawrence] does not
reach the full panoply of morals regulation").

99 See, e.g., Lawrence v. Texas, 539 U.S. 558, 591 (2003) (Scalia, J., dissenting)
("What a massive disruption of the current social order, therefore, the overruling of Bowers
entails.").

100 Id. at 571 (quoting Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 850

(1992)).

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822 Columbia Journal of Gender and Law [Vol. 18:3

Stevens' position in Bowers that "the fact that the governing majority in a
State has traditionally viewed a particular practice as immoral is not a
sufficient reason for upholding a law prohibiting the practice."'' 1

This shift is further justified by tradition. Many prominent members
of the founding generation understood the Ninth Amendment as codifying a
right to be left alone. 0 2 This view survived into the nineteenth century,
through the passage of the Fourteenth Amendment 0 3 and the Industrial
Revolution. 10 4 While the Supreme Court has frequently invoked the
legislature's right to make laws based on the preservation of public
morality,'0 5 the Court has not upheld a law solely on this basis for more
than fifty years. 10 6 Although the Supreme Court widely upheld state

101 Id. at 577 (quoting Bowers v. Hardwick, 478 U.S. 186, 216 (1986)).

102 See THOMAS JEFFERSON, QUERY 17, 157- 161 (1784) ("The legitimate powers of
government extend to such acts only as are injurious to others."). See also RANDY BARNETT,
RESTORING THE LOST CONSTITUTION 54-60 (2004) (describing Founders' conception of
natural rights as the right to liberty).

103 See THOMAS M. COOLEY, A TREATISE ON CONSTITUTIONAL LIMITATIONS WHICH

REST UPON THE LEGISLATIVE POWER OF THE UNITED STATES OF THE AMERICAN UNION 572
(1868) (describing the police power as the power to "insure to each the uninterrupted
enjoyment of his own, so far as is reasonably consistent with the like enjoyment of rights by
others").

104 See CHRISTOPHER TIEDEMAN, TREATISE ON THE LIMITATIONS OF POLICE POWER

IN THE UNITED STATES 1 (1886) ("The object of government is to impose that degree of
restraint upon human actions, which is necessary to the uniform and reasonable conservation
and enjoyment of private rights."). But see Bork, supra note 22, at 44-45 ("The better view
of the state legislative power is that ... it encompasses the power to make any enactment
whatever that is not forbidden by a provision of a constitution.").

105 See, e.g., Samuels v. McCurdy, 267 U.S. 188, 198 (1925) (noting that the

legislature can seek to suppress the use of liquor in the interest of public health and
morality); Crane v. Campbell, 245 U.S. 304, 307-08 (1917) (upholding a ban on alcohol
possession because it was intended to protect public morality and did so); Cosmopolitan
Club v. Virginia, 208 U.S. 378, 384 (1908) (arguing that a state can protect "the health, the
morals, and the prosperity of the people" through liquor regulation); Cronin v. Adams, 192
U.S. 108, 115 (1904) (upholding a law banning women from entering saloons and noting that
the sale of liquor "is a question of public expediency and public morality").

106 Suzanne Goldberg has explored many of these cases in depth. See Goldberg,
supra note 98. Specifically, Professor Goldberg pointed to Barnes v. Glen Theatre, Inc., 501
U.S. 560 (1991), in which Justice Souter, who provided the crucial fifth vote, justified his
decision not on grounds of public morality, but "on the State's substantial interest in
combating the secondary effects of adult entertainment establishments." Id. at 582. See also



Toys Are Us

prohibition laws in the latter part of the nineteenth century, it usually noted
the harm to the "public health . . . and the public safety" posed by such
laws.' 0 7 While preserving public morality was enough to uphold a
prohibition on bigamy in the 1878 case Reynold v. United States,'0 8 the
Court also noted the harm to women and children often brought by
bigamy.

0 9

Logic and consistency also suggest that the preservation of public
morality alone should never be enough to sustain an incursion on liberty. If
moral disapproval by a majority of the legislature were sufficient to uphold
an incursion onto personal liberty, then few laws infringing on an
unenumerated liberty right could ever be struck down. This is because the
legislature could justify any infringement by arguing that it disapproves of
the morality of the prohibited action." 0 Moral disapproval alone might not
be enough to justify an incursion on a "fundamental" liberty right. In such a
case the Court would still be required to first balance the interests of the
state against the interests of the individual, and second to label a certain
right as fundamental or non-fundamental. This Article will suggest these
two steps are misguided."'

Part I argued that Lawrence signals two propositions: First, that the
Court is moving away from the rational basis/strict scrutiny dichotomy, and
second, that the preservation of public morality is no longer a permissible
justification for the state to restrict liberty. Part II will examine one
disagreement that has emerged from the Lawrence controversy, with the
goal of showing the problems associated with protecting unenumerated
rights according to the fundamental or non-fundamental nature of the
asserted right.

City of Erie v. Pap's A.M., 529 U.S. 277 (2000), in which five of the seven justices voting to
sustain an ordinance forbidding nude dancing did not even mention morality, but instead
relied on the harmful secondary effects of nude dancing. Id. at 300-01.

107 E.g., Mugler v. Kansas, 123 U.S. 623, 662 (1887).

10898 U.S. 145, 165 (1878).

109 See id. at 167-68.

110 See BARNE-TI, supra note 102, at 331 ("[W]ere the state allowed the power to

prohibit any purely private activity on the sole ground that a majority of the legislature
deems it to be immoral, there would be no limit on state power since no court could review
the rationality of such a judgment.").

. See infra Part 1I1.B.

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Columbia Journal of Gender and Law

II. HOW SEX TOYS ILLUSTRATE THE
SHORTCOMINGS OF A TIERED APPROACH
TO PROTECTING UNENUMERATED RIGHTS

Lawyers have argued that Lawrence should be applied to a number
of different types of statutes, including the right to use medical
marijuana;' 2 the right for a cop to have sexual relations with a crime
victim; 113 and the right of homosexual parents to adopt children.' 14

However, this Part will focus on decisions in which courts have considered
the application of Lawrence to statutes banning the sale of sex toys. 115 It
will focus on these cases for two reasons: first, the Fifth and Eleventh
Circuit opinions both read Lawrence as having different effects on the
constitutionality of two virtually identical statutes; second, unlike the statute
at issue in Carey, sex toy statutes do not "significant[ly] burden '"16 the
"right" of individuals to maintain whatever level of sexual intimacy they
and their partners deem worthwhile." 17 This means that reading Lawrence to
have created a fundamental right to sexual privacy" 18 and striking down
bans on the sale of sex toys based on this created right is misguided. Taking
a narrow view of Lawrence and upholding these bans because of their

112 Raich v. Gonzales, 500 F.3d 850, 864 (9th Cir. 2007).

113 Sylvester v. Fogley, 465 F.3d 851, 858 (8th Cir. 2006).

114 Lofton v. Sec'y of the Dept. of Children & Family Servs., 358 F.3d 804 (11th

Cir. 2004).

115 This Part will focus on Williams v. Attorney General of Alabama, 378 F.3d

1232 (1 1th Cir. 2004) and Reliable Consultants, Inc. v. Earle, 517 F.3d 738 (5th Cir. 2008).

116 The Supreme Court used this standard in Carey v. Population Servs. Int ', 431

U.S. 678, 689 (1977), discussed supra Part L.A and infra Part II.C.

117 See infra Part II.C.

118 Some judges and scholars have argued this. See Reliable, 517 F.3d at 743

(arguing that Lawrence created a right to sexual privacy, which statutes that ban the sale of
sex toys violate); Elimelekh, supra note 11 (same); Borgmann, supra note 11 (arguing that if
Lawrence created a right to sexual privacy then laws banning the sale of sex toys would
violate such a right); Rosalind Dixon, A Democratic Theory of Constitutional Comparison,
56 AM. J. COMP. L. 947, 966 (speculating about the "very real likelihood" that "U.S.
traditions ha[ve] evolved to a point where they favored the recognition of a protected right to
sexual privacy").

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commercial nature is similarly misguided. 119 Part II will explore the
variations on these errors in the Williams and Reliable opinions, and Part III
will propose a more coherent approach that examines the nature of the
government's justification for its choice to restrict liberty, as opposed to an
approach that examines the nature of the right asserted by the claimant.

A. The Eleventh Circuit and Williams

Part II.A will discuss Williams v. Attorney General ofAlabama12 0 -
the first post-Lawrencel2

1 federal case 22 to address a state law banning the
sale of sex toys. The Williams court upheld Alabama's law as consistent
with Lawrence.

In Williams, the American Civil Liberties Union sued the state of
Alabama, arguing that a ban on the exchange of any object "useful
primarily for the stimulation of human genital organs for any thing of

119 This is the preferred approach of the majority in Williams and the dissents in

Reliable. See infra Part II.A-B.

120 378 F.3d 1232 (11 th Cir. 2004).

12 1 The statute that would eventually be upheld in Williams had first been

challenged in July of 1998, a month after the statute had taken effect. Williams v. Pryor
(Williams 1), 41 F. Supp. 2d. 1257, 1282-84 (N.D. Ala. 1999). Despite applying only rational
basis review, the district court struck down the statute. On appeal, however, the Eleventh
Circuit upheld the statute, finding that the promotion and preservation of public morality did
constitute a rational basis for the statute. Williams v. Pryor (Williams I1), 240 F.3d 944 (11 th
Cir. 2001). On remand, the district court decided that contrary to its previous decision, there
was a fundamental right to sexual privacy, and that the Alabama statute violated this right.
Williams v. Pryor (Williams II1), 220 F. Supp. 2d 1257, 1257 (N.D. Ala. 2002) (pre-
Lawrence). The district court found the statute could not withstand strict scrutiny and so
struck it down. Id. at 1260.

122 Three state supreme courts had already struck down sex toy statutes on

Fourteenth Amendment grounds before Lawrence, beginning with Tooley v. Seven Thirty-
Five East Colfax, Inc., 697 P.2d 348, 370 (Colo. 1985) (ruling Colorado's general
prescription of sex toys was too broad and "impermissibly burden[ed] the right of privacy"
of those who had "legitimate" uses for such devices). In State v. Hughes, 792 P.2d 1023,
1031 (Kan. 1990), the Kansas Supreme Court agreed, finding that because the Kansas law
did not isolate itself only to obscene devices, the statute impermissibly infringed on a privacy
right which "encompasses therapy for medical and psychological disorders." Id. After
Hughes, the Kansas legislature changed its law to include a medical exception. See supra
note 8. In State v. Brenan, 772 So.2d 64, 72-76 (La. 2000), while the Louisiana Supreme
Court specifically did not find a fundamental right to be at stake, the Court still struck down
a Louisiana statute on rational basis grounds, finding that an unqualified ban on sex toys was
overbroad in combating the supposed purpose of protecting unconsenting adults and minors.

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Columbia Journal of Gender and Law

pecuniary value" violated the fundamental right to sexual privacy of those
who use sex toys. 123 Chief Judge Birch, writing for the majority, disagreed
with the proposition that Lawrence had created such a fundamental "right to
sexual privacy," 124 noting that the Supreme Court specifically left open the
question of whether there was a fundamental right to sexual privacy, 125 and,
moreover, that it had pointedly decided not to recognize such a right in
Lawrence.126 Scholars have criticized this interpretation. For example,
Shelly Elimelekh criticized Birch for not finding that Lawrence recognized
"some sort of right to sexual privacy."' 27 In addition, Donald Hermann has
argued that because Justice Kennedy adopted Justice Stevens' dissent in
Bowers, Justice Kennedy must have agreed that "essential 'liberty' . ..
surely embraces the right to engage in nonreproductive, sexual conduct,"' 28

meaning Lawrence finally recognized a fundamental right to sexual
privacy. 121

Birch next argued that since Lawrence contained no Glucksberg
analysis, no fundamental right could have been "created,"' 130 and Justice
Kennedy must therefore have applied rational basis analysis.' 3' This made
Lawrence a rational basis case, and because no fundamental right to sexual
privacy had been created there, the Williams claimants were trying to
convince the court to recognize a new fundamental right. However, to do so

123 ALA. CODE § 13A-12-200.2 (2009).

124 See Williams v. Att'y Gen of Ala., 378 F.3d 1232, 1235 (1 1th Cir. 2004).

125 In Carey v. Population Services International, 431 U.S. 678, 688 n.5 (1977) the
Supreme Court declared it had "definitively [not] answered the difficult question whether
and to what extent the Constitution prohibits state statutes regulating (private consensual
sexual) behavior among adults, and we do not purport to answer that question now."

126 See Williams, 378 F.3d at 1238.

127 See Elimelekh, supra note 11, at 280.

128 See Hermann, supra note 77, at 940-41 (quoting Bowers v. Hardwick, 478 U.S.

186, 216 (1986) (Stevens, J., dissenting)).
129 See supra notes 62-64 and accompanying text.

130 Judge Birch mentions the phrase "new fundamental right" numerous times
throughout his Williams opinion. Williams, 378 F.3d passim. However, one might be rightly
skeptical as to how something fundamental could be "new." See infra note 281 and
accompanying text.

131 Williams 378 F.3d at 1238.

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would require Glucksberg analysis. 132 Birch then analyzed whether that
right was "deeply rooted in this nation's history" and "implicit in the
concept of ordered liberty."' 33 He framed the right at issue narrowly, as the
right to sell, buy, and use sexual devices. 34 Unsurprisingly, Birch found
that the right was not historically protected and thus not fundamental. 3

In applying rational basis review 136 Birch held that if, as the dissent
argued,137 Lawrence did remove "public morality" as a sufficient rational
basis for laws banning private, non-commercial conduct, the facts in
Williams were distinguishable. The facts involved activity beyond the
"private" and "consensual" conduct at issue in Lawrence. 138

132 See id at 1239 ("Because the ACLU is seeking recognition of a right neither

mentioned in the Constitution nor encompassed within the reach of the Supreme Court's
existing fundamental-right precedents, we must turn to [Glucksberg analysis].").

133 Id. at 1239 (quoting Washington v. Glucksberg, 521 U.S. 702, 721 (1997)).

134 Id. at 1242. For more on the cumbersome process of framing rights, see infra
Part III.B. 1.

135 Id. Birch also chastised the district court for confusing historical non-

interference with historical protection. Id. at 1244. In order to pass the second Glucksberg
barrier, according to Birch, a practice must not only have been historically permitted, but it
also must have been affirmatively protected. Id. The dissent criticized this characterization
of Glucksberg, arguing that "[h]ad the Supreme Court required affirmative governmental
protection of an asserted liberty interest, all of the Court's privacy cases would have been
decided differently." Id. at 1258.

136 Id. at 1238 n.8.

137 The dissent's position was that Lawrence was a fundamental rights case, but

that even if one read Lawrence as a rational basis decision, Lawrence's holding would
mandate that public morality was no longer a sufficient rational basis for banning private,
non-commercial conduct. Id. at 1259-60. Birch did not necessarily agree or disagree with
this phrasing. He argued in footnote eight that all he can justifiably take from Lawrence is
that Texas's sodomy prohibition furthered no legitimate state interest. Id. at 1238 n.8. The
Eleventh Circuit later ruled in Williams v. Morgan, 478 F.3d 1316, 1320 (1 lth Cir. 2007),
that the preservation of public morality provided a rational basis for Alabama's sex toy
statute.

138 Williams, 378 F.3d at 1238 n.8. What if the Alabama law had proscribed the use

of sex toys and not the sale? On one hand, Birch himself wrote that, "restrictions on the
ability to purchase an item are tantamount to restrictions on the use of that item," and so a
ban on use would presumably be just as permissible as a ban on sale. Id. at 1242. On the
other hand, Birch's response to the dissent's rational basis interpretation of Lawrence (that
Lawrence involved private, consensual conduct) depended on the public, commercial nature
of selling sex toys. In this way, Birch's opinion is oxymoronic: The constitutionality of the
statute depends on the public, commercial nature of the proscribed activity, yet such

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Columbia Journal of Gender and Law

The primary shortcoming of the Williams majority was to assume
that Lawrence must have been either a strict scrutiny or rational basis case.
While phrases in Lawrence such as "legitimate state interest"'139 do point
toward rational basis analysis, Birch overlooks portions of the text in
Lawrence that imply strict scrutiny, such as references to rights of
"fundamental significance"'' 40 and Justice Kennedy's adoption of Justice
Stevens' dissent in Bowers. 141 One could also argue that by favorably
quoting Justice Stevens' dissent in Bowers, which took issue with the
majority's conservative, historical approach to protecting fundamental
rights, Justice Kennedy was implicitly criticizing, if not overruling,
Glucksberg.142 Birch's opinion should be faulted not necessarily for failing
to "find" a fundamental right to sexual privacy in Lawrence, but for setting
out on such a search in the first place.

Judge Barkett's dissent challenged the majority's limitation of
Lawrence to the "unconstitutionality of criminal prohibitions of consensual
adult sodomy."'' 43 If one does not confine Lawrence to its specific facts,
Barkett argued, one must recognize that Lawrence was based on a
substantive due process right to private sexual intimacy.144 This right was
"fundamental" and required strict scrutiny analysis. 45 Furthermore, Barkett
maintained that Alabama's only post-Lawrence justification for its statute-

commercial activity is also equivalent for constitutional purposes to the underlying, non-
commercial activity. This inconsistency disappears, however, if one isolates Lawrence to its
facts, which seems to be Birch's interpretation and is shared by some in academia. See
Mowchan, supra note 78, at 142-43 (2004) (warning against a broad interpretation of
Lawrence); Sunstein, supra note 43 (arguing that Lawrence will not be read broadly); Note,
supra note 78 (observing that as of 2005 Lawrence had not been read broadly). For more on
the sale-use distinction, see infra Part II.C.

139 Lawrence v. Texas, 539 U.S. 558, 578 (2003).

"Old. at 565.

141 Id. at 577-78.

142 Despite joining the majority in Glucksberg, Kennedy did not cite Glucksberg

even once.in the Lawrence opinion.

143 Williams, 378 F.3d at 1236.

144 Id. at 1252. In contrast, Judge Birch's opinion essentially did isolate Lawrence
to its facts. See id. at 1238 n.8; see also supra note 138.

145 Id.; see also supra note 64 and accompanying text.

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preserving public morality-was insufficient to survive rational basis
review. 146

Although Judge Barkett dissented from the majority, her reasoning
utilized the same framework as that of Judge Birch, where rights are either
fundamental or non-fundamental. 147 However, that framework is not
required by Lawrence. 148 Significantly, Justice Kennedy applied neither
rational basis nor strict scrutiny review in Lawrence. Forcing Lawrence into
a bipolar model is to remain mired in an old paradigm. 49

B. The Fifth Circuit and Reliable

In Reliable Consultants, Inc. v. Earle, 150 the Fifth Circuit struck
down a Texas statute similar to the one upheld four years earlier in
Williams, ruling that the statute was inconsistent with Lawrence.'5 1 This
Part will argue that while Reliable correctly held the statute
unconstitutional, Judge Reavley's opinion incorrectly framed the right at
stake as a right to sexual privacy.

146 Id at 1260; see also supra Part I.D.

141 See id. at 1252.

148 See supra Part I.B.

149 See supra Part I.B.

IS0 517 F.3d 738 (5th Cir. 2008).

151 As opposed to the three state supreme courts which have struck down their

state's sex toy statutes, see supra note 122, Texas state courts have upheld such laws. See
Yorko v. State, 690 S.W.2d 260, 265 (Tex. Crim. App. 1985) (holding that Texas could
outlaw the promotion of sex toys). However, the Yorko court found that Texas could not
outlaw the presence or use of obscene devices writ large due to the Supreme Court's rulings
in Stanley v. Georgia, 394 U.S. 557, 568 (1969) (holding that "the First and Fourteenth
Amendments prohibit making mere private possession of obscene material a crime") and
United States v. 12 200-Foot Reels of Super 8mm Film, 413 U.S. 123, 128 (1973) (finding
that "the protected right to possess obscene material in the privacy of one's home does not
give rise to a correlative right to have someone sell or give it to others."). Twenty years later,
after Lawrence, in State v. Acosta, No. 08-04-00312-CR, 2005 WL 2095290 (Tex. App.
Aug. 31, 2005), a Texas appellate court once again upheld a statute banning the sale of sex
toys, noting that the statute applied only to public conduct, as opposed to the statute in
Lawrence, which prohibited private conduct.

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Columbia Journal of Gender and Law

1. Opinion of Panel

In Reliable, the Fifth Circuit struck down a Texas statute that
prohibited the "selling, advertising, giving, or lending of a device designed
or marketed for sexual stimulation."' 52 Judge Reavley applied neither
rational basis nor strict scrutiny to the Texas statute in contrast to the
Williams majority and dissent. 153 Reavley stated that the court's job was to
"apply Lawrence,"'' 54 and recognize the establishment of a "right to sexual
privacy.' 55 Reavley argued the fundamental/non-fundamental distinction in
this case was just an argument about nomenclature; 56 such a right exists,
and the court's job is to apply it.' 57 Having found a "right to sexual
privacy," Reavley stated that the state's justification-public morality-for
infringing on that right to sexual privacy was insufficient after Lawrence. i 8

Reavley was the only judge in either Williams or Reliable with the foresight
to argue that Lawrence was not necessarily a strict scrutiny or rational basis
case. 159

Reavley's opinion could be criticized for interpreting the "right"
that Lawrence protected as a right to sexual privacy. However, Justice
Kennedy offered no insight as to what particular right, if any, Lawrence was

152 Reliable, 517 F.3d at 741 (paraphrasing the Texas statute). The Texas statute at

issue was TEX. PENAL CODE ANN. §§ 43.21-23 (Vernon 1993). It is similar to the statute at
issue in Williams, except the Texas statute also proscribed the lending or giving away of sex
toys to others. Statutorily-approved purposes included "bona fide medical, psychiatric,
judicial, legislative, or law enforcement purpose[s]." Id.

153 Judge Reavley is not the only one to take this position. See supra notes 80-85.

"' Reliable, 517 F.3d at 745.

115 Id. at 745 n.32 ("Lawrence did not categorize the right to sexual privacy as a
fundamental right, and we do not purport to do so here. Instead, we simply follow the precise
instructions from Lawrence and hold that the statute violates the right to sexual privacy,
however it is otherwise described.").

156 
id.

'57 id.

... Id. at 745-46. The majority also considered the "compelling interest" in
protecting children from improper sexual expression, but found the statute too overbroad to
fend off constitutional challenge. Id. at 746. They found the same with regards to protecting
"unwilling adults." Id.

159 See supra Part I.B.

830 [Vol. 18:3



2009] Toys Are Us 831

creating or protecting. 60 In the first sentence of Lawrence, Kennedy wrote,
"Liberty protects the person from unwarranted government intrusions into a
dwelling or other private places."' 6' Given the many possible interpretations
of Lawrence-the isolated facts on one side,' 62 and a broad, harm principle-
based holding on the other 163 -there is no reason for insisting that
Lawrence created a precise "right to sexual privacy."'' 64 Between these
extremes, there is a plethora of possible "fundamental rights" that could
have been created. For instance, Lawrence might have created a general
fundamental right of adults to engage in consensual sexual conduct or a
narrower fundamental right of adults to engage in sexual intercourse, in the
home for example.

65

One might argue that Kennedy's disclaimer, noting that Lawrence
involved only private, personal conduct, could imply a right to sexual
privacy. 166 This is certainly an implication one could draw, but sexual
conduct is hardly the only sort of conduct that is private or personal.
Furthermore, just because the facts of Lawrence involved only private
conduct does not mean Lawrence's reasoning could not be applied to
instances of public or commercial conduct.

The Reliable dissent challenged Reavley's "simplified" due process
analysis, chiding Reavley for not specifically applying rational basis or
strict scrutiny review. 167 Judge Barksdale argued that Lawrence clearly

160 See supra text accompanying note 69. In footnote thirty-two of his Reliable

opinion, quoted supra note 155, Reavley referred to the right to sexual privacy, but then
added "however it is otherwise described," implying that phrasing the right in that way was a
decision made mostly out of convenience.

161 Lawrence v. Texas, 539 U.S. 558, 562 (2003).

162 This is essentially the position taken by Birch in Williams. See supra note 138.

163 Professor Barnett, for example, has taken this view. See Barnett, supra note 13.

164 Kennedy certainly never used the phrase. For more on the level of generality

problem, see infra Part III.B.I.

165 See Carpenter, supra note 87 (listing possible holdings of Lawrence).

166 Lawrence, 539 U.S. at 578. For more on Justice Kennedy's disclaimer, see
supra notes 90-92 and accompanying text.

167 Reliable Consultants v. Earle, 517 F.3d 738, 749 (5th Cir. 2008) ("I believe,

however, that the level of scrutiny to be employed is of critical importance to our review.").



Columbia Journal of Gender and Law

applied rational basis review. 68 He also noted, similar to Judge Birch in
Williams, that the Texas statute in Reliable banned conduct that was public
and commercial, 169 unlike the statute in Lawrence, which banned conduct
that was private and non-commercial. Barksdale seized upon this distinction
and reasoned that since the conduct at issue in Reliable was public and
commercial, it must pass rational basis analysis. 17 °

This reasoning is surprising for two reasons. First, Barksdale did
not refer to Carey v. Population Services International,171 cited by the
majority for the proposition that a ban on sale can be equivalent to a ban on
use for constitutional purposes. Cass Sunstein, for instance, implicitly
criticized Barksdale on this count, arguing that because of Carey, bans on
the use and sale of sex toys would be effectively equivalent for
constitutional purposes. 172 Second, Barksdale did not address the possibility
that a law regulating "conduct... both public and commercial" could ever
fail the rational basis test. 173 Supreme Court precedents are generally lenient
in allowing public commercial regulation, 174 but one could argue that bans
on the sale of sex toys address types of harms not contemplated by these
precedents. As such, commercial regulation in this area should be more
readily scrutinized.

168 id.

169 ld.

170 Id.

171 Carey is discussed supra Part L.A and infra Part II.D.

172 See Sunstein, supra note 93. But see United States v. 12 200-Foot Reels of

Super 8mm. Film, 413 U.S. 123, 128 (1973) (finding that "the protected right to possess
obscene material in the privacy of one's home does not give rise to a correlative right to have
someone sell or give it to others").

173 Reliable, 517 F.3d at 749.

174 See Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 456 (1978) (writing that the

state retains "power to regulate commercial activity deemed harmful to the public" and can
therefore regulate attorney qualifications).

832 [Vol. 18:3



Toys Are Us

2. Denial of Rehearing En Banc

Judge Garza's dissent from denial of rehearing en banc presented a
more extensive critique of the Reliable majority's reasoning.' 75 Garza also
criticized the Reliable majority both for failing to apply either rational basis
or strict scrutiny and for protecting a commercial right, whereas Lawrence
was specifically isolated to what Garza deemed a "personal liberty
interest." 176 Like Judge Barksdale, Garza disagreed that a ban on the sale of
sex toys equates to a ban on the use of sex toys. 77 To Garza the former
involves only bans on "commercial conduct."' 78 Such bans are apparently
so clearly rational that their rationality need not be explained. 179

Like Judge Birch in Williams, Garza could be faulted for
overlooking portions of Lawrence that imply strict scrutiny analysis.' 80

However, as with Birch's opinion in Williams, the dissent's primary flaw
was assuming that Lawrence demanded either strict scrutiny or rational
basis review in the first place. 18' Therefore, all the opinions in Williams and
Reliable have the same general shortcoming-namely, assuming that rights
must be singled out. Moreover, except for Reavley's opinion, they assume
incursions on rights must be subject to strict scrutiny or rational basis
review. Part II.C will argue that a right to sexual privacy, fundamental or
not, does not protect the right of a vendor to sell sex toys to his customers,
as such a ban does not present a significant burden on the sexual privacy
rights of sex toy users.

175 Reliable Consultants v. Earle, 538 F.3d 355, 359-60 (5th Cir. 2008) (Garza, J.,

dissenting). The dissent is also notable for persuading seven circuit judges to dissent from a
denial of rehearing. See Carpenter, supra note 87.

176 Id. at 360.

177 Id.

178 id.

179 Unlike Garza, Judge Birch made the argument for rationality in his Williams

opinion, in which he noted, "There is nothing 'private' or 'consensual' about the advertising
and sale of a dildo. And such advertising and sale is just as likely to be exhibited to children
as to 'consenting adults."' Williams v. Att'y Gen. of Ala, 378 F.3d 1232, 1238 n.8 (11 th Cir.
2004).

180 See supra Parts I.B, II.A.

181 See supra Parts I.B, II.A.

2009] 833



834 Columbia Journal of Gender and Law [Vol. 18:3

C. Sex Toy Statutes and the Right to Sexual Privacy

As noted in Parts II.A and II.B, the statutes at issue in Williams and
Reliable regulated only the sale and advertising of sex toys, not their use.
Some have argued this distinction is constitutionally insignificant.' 82 In
contrast, Part II.C will argue that laws prohibiting the sale of sex toys are of
a different character than laws truly proscribing private sexual activity. This
means that if one remains in the fundamental/non-fundamental rights
framework, a fundamental "right to sexual privacy" would not invalidate
laws prohibiting the sale of sex toys.

States' justification for statutes that proscribe the sale of sex toys,
especially after Lawrence, will almost invariably relate to the public harm
that could be done in advertising or displaying these devices., 83 Contrast
this to Lawrence, in which Texas made no plausible argument that
outlawing sodomy between homosexuals prevented a public harm. In the
wake of Lawrence, preventing public harm, whether it be obscenity or harm
to innocent children, would be at the center of the state's argument in
defending its sex toy statutes. 184

The result of this distinction is that the state could acknowledge that
Lawrence established a right to sexual privacy, yet still plausibly argue that
statutes prohibiting the sale of sex toys should be upheld. 85 The claimant
could then overcome this public harm justification by convincing the court
that a ban on the sale of sex toys equates to a ban on the use of sex toys. I s6

182 See Elimelekh, supra note 11; Sunstein, supra note 93; John Tuskey, What's a

Lower Court to Do? Limiting Lawrence v. Texas and the Right to Sexual Autonomy, 21
TOuRo L. Rav. 597 (2005). This view has been disputed, however, by Judge Birch in
Williams and Judge Barksdale in Reliable, both of whom differentiated between laws
prohibiting public commercial conduct and private, non-commercial conduct.

183 See Brief of Defendant-Appellee at 43, Williams v. Att'y Gen. of Ala., 378

F.3d 1232 (11th Cir. 2002) (No. 06-11892-J) (arguing that injunction invalidating entire
Alabama law was overbroad since the district court could have invalidated the law only
insofar as it did not prohibit the sale of sex toys to minors).

184 See id

185 How plausible such an argument might be would depend on the degree of

regulation. Indeed, the Eleventh Circuit has struck down sex toy statutes on commercial
speech grounds but not substantive due process grounds. See This That and the Other Gift
and Tobacco, Inc. v. Cobb County, Ga., 439 F.3d 1275 (11 th Cir. 2006). The Fifth Circuit in
Reliable did not reach the issue of commercial speech. Reliable Consultants, Inc. v. Earle,
517 F.3d 738 (5th Cir. 2008).

186 See infra notes 187-189 and accompanying text.



Toys Are Us

Once the court makes this leap, the value of the state's public harm
justification would be greatly diminished since the state would be venturing
into a private arena-an intrusion that normally receives strict scrutiny. 187

The primary obstacle facing the state in arguing that its ban on the
sale of sex toys does not equate to a ban on the use of sex toys is Carey v.
Population Services International.188 Here, the Supreme Court ruled that a
ban on the sale of contraceptives placed enough of a burden on the right to
use contraceptives as to be constitutionally equivalent. 189 Justice Brennan
reached this conclusion in Carey for two reasons. First, under Griswold and
Roe, the choice to control one's procreation is at the core of personal
autonomy rights. 190 Second, bans on the sale of contraceptives significantly
burden one's ability to use contraceptives. 91 Indeed, as Brennan noted,
such bans might even pose more of a burden on an individual's ability to
use contraceptives than a ban on use.' 92

Neither of these two justifications for equating bans on sale to bans
on use hold up for statutes banning the sale of sex toys. First, the Supreme
Court has never ruled that the ability to enjoy the use of sex toys rises to the
"fundamental" level of the ability to control one's family as recognized in
Griswold and Roe.'93 After all, the right to enjoy sexual intimacy should be
understood as something separate from the right to be sexually intimate in

187 Although no Supreme Court case directly cites the proposition, an outright ban

on the use or possession of sex toys would probably be unconstitutional on First Amendment
grounds. See Stanley v. Georgia, 394 U.S. 557 (1969) (finding the right to possess
pornographic material in the home is protected by the First Amendment). While Stanley does
speak of a broad, "fundamental ... fight to be free," id. at 564, the Court specifically rested
its decision on First Amendment grounds, not on an unenumerated right to liberty. See id. at
565 ("If the First Amendment means anything, it means that a State has no business telling a
man, sitting alone in his own house, what books he may read or what films he may watch.").

118 431 U.S. 678 (1977).

189 Griswold v. Connecticut, 381 U.S. 479 (1965) (declaring a ban on the use of

contraceptives unconstitutional). For more on Griswold and Carey, see supra Part I.A.

'90 See Carey, 431 U.S. at 685.

191 See Griswold, 381 U.S. at 485.

192 See Carey, 431 U.S. at 678 ("Indeed, in practice, a prohibition against all sales,

since more easily and less offensively enforced, might have an even more devastating effect
upon the freedom to choose contraception.").

193 But see Stanley v. Georgia, 394 U.S. 557 (1969) (upholding right to possess
pornographic material); discussion supra note 187.

2009] 835



836 Columbia Journal of Gender and Law [Vol. 18:3

the first place. 194 The Texas Court of Criminal Appeals expounded on this
distinction in the 1985 case Yorko v. State,'95 in which the court argued that
while the decision to have an abortion or use contraception touches on "the
most intimate of human activities,"'196 the decision to use sexual devices
furthers mere sexual gratification.' 97

Second, whereas a prohibition on the sale of contraceptives
impaired one's ability to exercise a fundamental right in Carey, a ban on the
sale of sex toys presents no such barrier. Citizens of Alabama who feel so
compelled are free to purchase sex toys in other states. In fact, the claimants
in Williams already possessed multiple sex toys. 198 The internet also allows
for commercial transactions unavailable at the time of Carey.199 Finally, the
state would presumably point to the different characteristics of

194 Lee Goldman takes this view. See Lee Goldman, The Constitutional Right to
Privacy, 84 DENY. U. L. REv. 601, 642-43 (2006) (arguing that a ban on the sale of sex toys
has a de minimis affect on an individual's privacy rights). Goldman argues for a Lockean
view of substantive due process rights in which courts look to balance interests between the
public good and the privacy of the individuals. For Goldman, sex toy statutes do not
sufficiently tip the scales in favor of individual privacy. But see Williams v. Pryor, 41 F.
Supp. 2d 1257, 1265-66 (N.D. Ala. 1999) (discussing health difficulties faced by women
who use sex toys); Obstetrical & Gynecological Devices, 21 FDA § 884.5940 (2000)
(certifying "vaginal muscle stimulators" for therapeutic purposes such as combating post
partum depression or avoiding sexually transmitted diseases). See also Danielle J.
Lindemann, Pathology Full Circle: A History of Anti-Vibrator Legislation in the United
States, 15 COLUM. J. GENDER & L. 326 (2006) (examining therapeutic uses for sex toys).; and
supra note 122 and accompanying text (citing state supreme court decisions which held
statutes prohibiting the sale of sex toys unconstitutional because they did not have exceptions
for therapeutic uses).

"' 690 S.W.2d 260 (Tex. Crim. App. 1985). For more discussion of Yorko, see
supra note 151.

196 Yorko, 690 S.W.2d at 268 (quoting Carey v. Population Servs. Int'l, 431 U.S.

684, 685 (1977)).

"' Id. at 265.

198 Williams v. Att. Gen. of Ala., 378 F.3d 1232, 1233 (11 th Cir. 2004) ("[l~n fact,

the users involved in this litigation acknowledge that they already possess multiple sex
toys.").

199 Websites selling sex toys on the internet present no obstacle to someone living
in Alabama who wanted to order sex toys. See, e.g., Eden Fantasys,
http://www.edenfantasys.com (last visited Nov. 1, 2009); The Adult Toy Shoppe,
http://www.theadulttoyshoppe.com (last visited Nov. 1, 2009). This does not mean, however,
that a determined state district attorney could not prosecute an Alabama resident whom the
district attorney found to be purchasing such devices on the internet.



Toys Are Us

contraceptives and sex toys: contraception needs to be purchased on a
consistent basis, whereas sex toys can be purchased once and used multiple
times thereafter. Therefore, not being able to purchase contraception at a
local grocery store or pharmacy would present a greater burden on the
claimant's right than would the inability to purchase sex toys at a local strip
mall.

Therefore, while bans on the sale of sex toys may restrict liberty in
a significant way, focusing on the limitations to sexual privacy implicated
by these bans is misleading, for the bans' effect on sexual privacy is
negligible at best. Part III proposes that examining the state's justification
for its restriction on liberty, as opposed to the nature of the right at stake, is
a superior approach.200 Part III will also examine the consequences of such
an approach for the statutes discussed in Part 11.201

Il. AN ABSOLUTE BUT CONSERVATIVE APPROACH
TOWARD PROTECTING LIBERTY

Part III.A presents an interpretation of Lawrence that rejects the
rational basis/strict scrutiny dichotomy, and that requires the state to justify
its laws as substantially related to the prevention of harm. Part III.B
addresses the changes this Article's analysis would make to pre-Lawrence
doctrine. Part III.C discusses the practical benefits of this Article's
interpretation of Lawrence, and finally Part III.D illustrates how this
Article's analysis would be applied to sex toy cases and in other contexts.

A. An Absolute Right to Liberty

1. Outline of Proposed Analysis

There seemingly has never been a shortage of ideas about how the
judiciary should treat unenumerated rights to liberty. The Supreme Court's
practice since Griswold has been to divide such rights into either "liberty
interests" or "fundamental rights. 20 2 Burdens on the former receive
passive 2

0
3 rational basis analysis, while burdens on the latter receive strict

20 See infra Part III.A. 1.

2' See infra Part III.D. 1.

202 See supra Part I.A.

203 In Williamson v. Lee Optical Oklahoma, Inc., for example, Justice Douglas,

speaking for a unanimous Court, wrote that in order for a law infringing on an unenumerated

2009] 837



838 Columbia Journal of Gender and Law [Vol. 18:3

scrutiny. As an alternative, some scholars204 and judges have advocated a
balancing approach where "'liberty' is not a series of isolated points," but a
"rational continuum. 2 0 5 The Court's job is then to decide when the interests
of "organized society" are so pressing that they justify an infringement of
citizens' rights.20 6 Some have favored no protection for unenumerated
rights,0 7 whereas others believe any infringement on liberty ought to
require a means-end fit and a showing that no less restrictive alternative
exists.

2 8

The approach taken in Lawrence, which this Article suggests that
the Court take to its logical conclusion, would codify 20 9 a narrow but

right to liberty to pass constitutional muster, "[i]t is enough that there is an evil at hand for
correction, and that it might be thought that the particular legislative measure was a rational
way to correct it." 348 U.S. 483, 488 (1955). See also Fed. Commc'ns Comm'n v. Beach
Commc'ns, 508 U.S. 307, 315 (1993) (Justice Thomas writing that "a legislative choice is
not subject to courtroom fact-finding and may be based on rational speculation unsupported
by evidence or empirical data ...."). It is this lax attitude toward laws infringing on liberty
that this Article urges the Court to move away from.

204 See, e.g., Goldman, supra note 194 (advocating balancing of interests in cases

when government infringes on liberty in pursuit of a proper purpose); Hunter, supra note 43
(arguing that Lawrence embraced Harlan's dissent in Poe); Tribe & Dorf, supra note 34, at
1069 (pointing approvingly toward Harlan's reference to a rational continuum of rights).

205 Poe v. Ullman, 367 U.S. 497, 543 (1961) (Harlan, J., dissenting).

206 Id. at 542-3 (Harlan, J., dissenting) (quoting U.S. Const. amend. XIV, § 1). See

also RONALD DWORKIN, FREEDOM'S LAW: A MORAL READING OF THE AMERICAN

CONSTITUTION (1996) (arguing that the Constitution sets out broad moral principles which
judges must interpret and apply). But see BORK, supra note 22, at 234-35 (arguing Harlan's
"vision of a due process clause" places "effectively no limits [on] the judge's power to
govern us").

207 See, e.g., BORK, supra note 22, at 234-35. Judge Bork's unwillingness to

protect unenumerated rights is not wholly consistent with his professed allegiance to history
and tradition. See Calder v. Bull, 3 U.S. 386, 388 (1798) ("An ACT of the Legislature (for I
cannot call it a law) contrary to the great first principles of the social compact, cannot be
considered a rightful exercise of legislative authority."); BARNETT, LOST CONSTITUTION,

supra note 102 (describing Founders' respect for higher, unwritten law); Thomas C. Grey,
Do We Have an Unwritten Constitution?, 27 STAN. L. REV. 703, 716 (1975) (describing
Founders' respect for higher, unwritten law); Noah Webster, America, N.Y. DAILY
ADVERTISER, Dec. 31, 1787(mocking the practice of enumerating specific rights for
protection).

208 See Barnett, supra note 13.

209 1 use the word "codifies" instead of "grants" or "creates" because as James

Madison, the writer of the Ninth Amendment, understood, the Ninth Amendment did not



2009] Toys Are Us 839

absolute right to liberty that cannot be infringed upon. Because a broadly
construed absolute right could seriously damper the state's ability to
maintain law and order, the right ought to protect a narrow bandwidth of
activity in a firm, consistent manner. Generally, the judiciary ought to defer
to the legislature's judgment in deciding what falls into this narrow
bandwidth; however, the judiciary should interfere when it believes the
legislature has acted in a way that is not substantially related to preventing
harm.21°

The words "substantial relation" or "substantially related" are
usually associated with intermediate scrutiny analysis, under which a law
must advance an important government interest by substantially related
means. 21 1 To clarify, this Article is not advocating intermediate scrutiny for
laws that infringe on liberty. Instead, it urges courts to employ a
"substantial relation" standard to determine whether a law infringes on a
narrow bandwidth of activity, which ought to be protected regardless of
government interests. 212

create new rights-it simply embodied rights that men had always enjoyed. See generally

RANDY BARNETT, THE RIGHTS RETAINED BY THE PEOPLE: THE HISTORY AND MEANING OF THE

NINTH AMENDMENT (1989). However, some have argued that the Ninth Amendment applied
only to "those individual rights contained in the state constitutions, statutes, and common

law." See Russell L. Caplan, The History and Meaning of the Ninth Amendment, 69 VA. L.
REV. 259 (1983). But see ELY, DEMOCRACY AND DISTRUST, supra note 22, at 204 (pointing

out that state constitutions contained provisions similar to the Ninth Amendment, which
implies the Ninth Amendment cannot be seen solely as a restriction on state power); John
Choon Yoo, Our Declaratory Ninth Amendment, 42 EMORY L.J. 1008 (1993) (altering the
language of the Ninth Amendment implies that the Founders intended to limit the ability of a
"National People" to exert sovereignty). Another argument is that the Ninth Amendment was
meant only to limit the powers delegated by the Constitution to the federal government. See
Thomas B. McAfee, The Original Meaning of the Ninth Amendment, 90 COLUM. L. REV.
1306 (1990). But see BARNETT, supra note 102, at 244-52 (disputing this view); Mark C.
Niles, Ninth Amendment Adjudication: An Alternative to Substantive Due Process Analysis
of Personal Autonomy Rights, 48 UCLA L. REV. 85 (2000) (same).

210 See infra Part Ill .A.2 (discussing concept of harm).

211 See ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES & POLICIES 415

(1997). Donald Beschle has also argued that Lawrence might hint at an intermediate scrutiny
approach to substantive due process cases, although Professor Beschle favors an "open-
ended balancing approach to Fourteenth Amendment cases." Beschle, supra note 79, at 252.
This Article, however, would disfavor a balancing approach. See infra Part IIl.B.2.

212 See infra Part III.B.2. The approach suggested by this Article closely mirrors

that of the first Justice Harlan, dissenting in Lochner v. New York, 198 U.S. 45 (1905).
Justice Harlan argued that "[a]ll [federal and state] cases agree that [the police] power
extends at least to the protection of the lives, the health, and the safety of the public against



Columbia Journal of Gender and Law

This approach would unquestionably lead to government
infringement of some liberty rights. While unfortunate, this is a natural
consequence of organized government, a consequence considered by the
Founders. l3 Men surrender some natural rights in joining society, but the
Founders believed that men could not possibly surrender them all.214 Randy
Barnett has argued that natural rights given up include only the right to
enforce infractions against one's own natural rights, which would have been
permissible in a state of nature.215 In contrast, this Article's position is that
these surrendered rights encompass activity which does not inflict harm on
others, yet can still be rightly prohibited because the law at issue
substantially relates to preventing harm.

2. What Does "Harm" Mean?

The concept of "harm" is nebulous, as most actions, public or
private, could be said to harm some people in some way. 16 While arguing
for a specific definition of what constitutes harm is outside the scope of this
Article, Part III.A.2 will nevertheless suggest a foundation from which
courts can build in the future.217

the injurious exercise by any citizen of his own rights," id. at 65, and the legislation at issue
should be required to have a "substantial relation" to meeting this end. Id. at 69.

213 See, e.g., 4 Jonathan Elliot, South Carolina (in Legislature), in ELLIOT'S

DEBATES: THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE

FEDERAL CONSTITUTION 295 (1836) [hereinafter ELLIOT'S DEBATES] (Robert Barnwell
arguing "[i]n the compacts which unite men into society, it always is necessary to give up a
part of our natural rights to secure the remainder."). But see 3 Jonathan Elliot, Bill of Rights,
in ELLIOT'S DEBATES, supra, at 657 ("[T]here are certain natural rights, of which men, when
they form a social compact, cannot deprive or divest their posterity.").

214 See BARNETT, supra note 102, at 70-71.

215 Id.

216 See Goldman, supra note 194 at 622 ("Unless one is a hermit living in the

woods, all actions can cause some harm to others.").

217 This Article uses the word "foundation" because presumably the courts would

expound upon the definitions of "substantial relation" and "harm" over time, similar to the
ways in which courts expound the common law. See Washington v. Glucksberg, 521 U.S.
702 (1997) (Souter, J., concurring) (urging a common law approach to substantive due
process cases). But see ANTONIN SCALIA, A MATTER OF INTERPRETATION (1996) (criticizing
common law approach to constitutional adjudication). For an extensive look at the ambiguity
involved in defining "harm," see Steven D. Smith, Is the Harm Principle Illiberal?, 51 AM.
J. JuRis. 1 (2006).

840 [Vol. 18:3



Toys Are Us

John Stuart Mill's conception of harm is useful. Mill wrote of
preventing harm only "in the first instance," meaning the state should not
concern itself with preventing harm to others that is derivative of the harm
to the principal.21 8 Therefore, under this Article's proposed analysis, the
state could not justify laws prohibiting cocaine use or suicide merely
because the cocaine user's plight causes harm to the user's family. This is
because the harm caused to the family would be derivative of the harm to
the principal.

Whether the harm self-inflicted by a cocaine user should be
prevented by the state presents a different question. After all, such an act
might partially or completely deprive the individual of his ability to make
choices for himself-the very end that Mill sought to advance. 219 However,
Mill also argued that because the person who takes a risk (crossing a rickety
bridge, for example) is in the best position to measure the value of his own
life, the state should not replace the risk taker's assessment of risk with its
own.220 While not seeking to resolve this debate, this Article takes the latter
position-that harm to oneself does not constitute harm the state should
seek to prevent. This Article also takes the position that the state should not
aim to prevent offense to one's moral sensibilities, whether that harm be
caused by sodomy, 221 incest, 222 or sex toys. 223

The common law of torts has spelled out some activity that, while
not physically harmful to a person or his property, should still be

218 JOHN S. MILL, ON LIBERTY 17 (Electric Books Co. 2001) (1859). The elevation
of so-called negative rights (the right to be left alone) has been criticized. See, e.g., STEPHEN
HOLMES & CASS R. SUNSTEIN, THE COST OF RIGHTS: WHY LIBERTY DEPENDS ON TAXES (W.

M. Norton & Co. 1999) (arguing that even negative rights require positive obligations, such
as taxes, to enforce). Nevertheless, some scholars have seen Lawrence, discussed supra Part
I, as embracing the harm principle in criminal law. See Goldberg, supra note 98; Eric
Tennen, Is the Constitution in Harm's Way? Substantive Due Process and Criminal Law, 8
CAL. CRIM. L. REV. 3 (2004).

219 MILL, supra note 218, at 60 ("He therefore defeats, in [the case of suicide], the

very purpose which is the justification of allowing him to dispose of himself").

220 Id. at 57.

221 See supra Part I.B.

222 See infra Part III.D.2.

223 See infra Part III.D. 1. For an argument that Lawrence reached this result, see

supra Part I.D.

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842 Columbia Journal of Gender and Law [Vol. 18:3

compensable by the state.224 For example, the common law of torts
recognizes the infliction of emotional distress, 225 defamation, 226 incursions
on privacy, 227 and fraud,228 as compensable harms. These sorts of harms are
neither self-inflicted, nor derivative of the harm to the principal, so this
Article's proposed analysis would do nothing to frustrate the continuing
compensation (or regulation) of such harms.

This leaves unresolved, among other issues, 229 how courts should
go about determining when an action by the legislature addresses one of
these preventable harms. An overly lax standard will allow the state to
justify almost all of its actions by pointing to some hypothetical harm it
aims to prevent.230 An overly strict standard, however, will frustrate the
legislature's ability to regulate legitimate public harms. 231

3. How to Determine When Actions by the Legislature Prevent Harm?

This Article proposes that the judiciary intervene whenever the
legislature's actions are not substantially related to preventing harm. Such
intervention would allow the state to proscribe some activity that arguably
does not harm others, as long as the legislation substantially relates to
preventing harm.232 This represents a middle ground between the passive233

224 For more on the types of harm compensated in tort law, as well as the evolving

methods of compensating such harms, see generally Steven P. Croley & Jon D. Hanson, The
Nonpecuniary Costs of Accidents: Pain-and-Suffering Damages in Tort Law, 108 HARV. L.
REV. 1785, 1797 n.35 (1995) (exploring idea of nonpecuniary loss and how it should be
compensated); John Oberdiek, Philosophical Issues in Tort Law, 3 PHIL. COMPASS 734
(2008) (exploring nature of harm compensated in tort).

225 RESTATEMENT (SECOND) OF TORTS § 46 (1977).

226
1 Id. at § 577.

227 Id at § 652B.

2281 Id. at § 525.

229 See supra note 217 and accompanying text.

230 See supra note 203.

231 See supra note 13.

232 While relevant, the legislature's motives would not be dispositive under this

Article's analysis. Consider laws banning the possession or sale of marijuana. The possibility
of such a prohibition would most likely provoke myriad motivations from legislators, some
of which involve preventing harm and some of which involve expressing disapproval of a



2009] Toys Are Us

rational basis analysis that is often applied to laws infringing on mere
liberty interests and the demanding strict scrutiny analysis that is applied to
laws infringing on fundamental rights.234

A "substantial relation" standard has played a prominent role in the
Supreme Court's Equal Protection jurisprudence, in which laws
differentiating on the basis of gender must bear a substantial relation toward
furthering an important government interest.235 Craig v. Boren, for example,
presented the Supreme Court with a law that allowed vendors to sell beer to
females at age eighteen, but restricted sale to males until they reached the
age of twenty-one.23 6 The Supreme Court found that research showing
young males were involved in more traffic accidents than women was
insufficient to spare the law.237 The Court considered that even the statistics
presented by the state238 found that a mere two percent of young males were

239arrested for alcohol-related driving offenses. Moreover, the statute only
addressed beer and not other types of alcohol. 240 The Court also found that

minority's choice in recreational activity. Similarly, some individual legislators might act
with multiple purposes and with different levels of conviction. This problem has not stopped
courts from nevertheless evaluating a legislature's motives in other circumstances. A
violation of the Equal Protection Clause, for example, requires "proof of racially
discriminatory intent or purpose," despite the fact that the intentions of legislators might
differ dramatically. Village of Arlington Heights v. Metropolitan Housing Dev. Corp, 429
U.S. 252, 253 (1977). This choice, however, has been criticized. See, e.g., David A. Strauss,
Discriminatory Intent and the Taming of Brown, 56 U. CHI. L. REV. 935 (1989) (calling
focusing only on intent "inadequate in a fundamental way").

233 See supra note 203.

234 This heightened rational basis review has also been called "rational basis with

bite." See BARNETr, supra note 102, at 344.

235 See CHEMERINSKY, supra note 211, at 415.

236 Craig v. Boren, 429 U.S. 190 (1976). For more on intermediate scrutiny in

cases of gender classifications, see generally William R. Engles, Comment, The "Substantial
Relation" Question in Gender Discrimination Cases, 52 U. CHI. L. REV. 149 (1985).

237 Craig, 429 U.S. at 201.

238 The Court criticized the methodology of the state's statistics, noting the state's

study was "lacking in controls necessary for appraisal of the actual effectiveness of the male
3.2% beer prohibition." Id. at n. 14.

239 "Certainly if maleness is to serve as a proxy for drinking and driving, a

correlation of 2% must be considered an unduly tenuous 'fit."' Id. at 201-02.



Columbia Journal of Gender and Law

the law was likely motivated by stereotypes about the personalities of
young men and women, as opposed to a legitimate belief that the legislature
was honestly trying to prevent traffic accidents. 241 Together, these factors
persuaded the Court that the law's discriminatory nature was impermissible.

The 1985 case of City of Cleburne v. Cleburne Living Center24

similarly illustrates the type of scrutiny a "substantial relation" requirement
would demand. In Cleburne, the city required that the operator of a group
home for mentally handicapped persons obtain a special building permit
that other group home operators were not required to obtain.2 43 The city
justified this measure on the grounds that the neighboring property owners
would be upset; that the facility would be near a school, which would
subject the residents of the group home to ridicule by schoolchildren; that
the home was on a flood plain; and finally, that there were concerns about
the group home's size.244 The Supreme Court rejected the first two
justifications as improper concerns for a zoning proceeding and the last two
because these were not problems unique to group homes for the mentally
handicapped. 45 While the Supreme Court called this rational basis

240 "None [of the state's evidence] purports to measure the use and dangerousness

of 3.2% beer as opposed to alcohol generally." Id. at 203.

241 See id. at n.14 ("Hence 'reckless' young men who drink and drive are

transformed into arrest statistics, whereas their female counterparts are chivalrously escorted
home.") (citing WALTER RECKLESS & BARBARA KAY, THE FEMALE OFFENDER: REPORT TO

THE PRESIDENTIAL COMMISSION ON LAW ENFORCEMENT AND ADMINISTRATION OF JUSTICE 4,

7, 13, 16-17 (1967)). As mentioned supra note 232, while this Article's proposed analysis
does not focus exclusively on searching for illegitimate legislative motives, evidence of such
motives may indicate that the law at hand is not substantially related to preventing harm.

242 473 U.S. 432 (1985).

243 Id. at 447.

244 Id. at 448-50.

245 Id. at 450.

844 [Vol. 18:3



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analysis, 246 such review is not in accord with the passive level of review
247applied in other rational basis cases.

B. Changes in Pre-Lawrence Doctrine

This Article's proposed analysis changes two key elements of pre-
Lawrence substantive due process doctrine.248 Building off of Justice
Kennedy's opinion in Lawrence,249 this Article discards the distinction
between fundamental and non-fundamental rights, and it eliminates the
caveat of a compelling government interest. While these two changes are
substantial, Part II.B will argue that they are justified.

1. Fundamental v. Non-Fundamental Rights

Abandoning the fundamental/non-fundamental rights dichotomy is
justified for both functional and normative reasons. Functionally, in
substantive due process cases, 250 this dichotomy in arguments about

246 One could argue that the Court in Cleburne should have seen the mentally

retarded as a suspect class, and that the heightened rational basis analysis in Cleburne was a
result of the Court's discomfort with recognizing such a classification. See The Supreme
Court-Leading Cases: Discrimination Against the Mentally Retarded, 99 HARV. L. REV.
161 (1985) (making this argument).

247 See supra note 203. Similarly, in Grutter v. Bollinger, 539 U.S. 306 (2003), the

Supreme Court upheld the Michigan Law School's affirmative action program, applying
strict scrutiny. Id at 343. Some have argued, however, that the Court's review of the Law
School's program was closer to intermediate scrutiny. See Suzanne Goldberg, Equality
Without Tiers, 77 S. CAL. L. REV. 481 (2004) (arguing that Grutter and Gratz signal a new
unifying approach to Equal Protection cases). See also Beschle, supra note 79, at 248 ("[The
Grutter case] demonstrates an application of strict scrutiny less rigid than that commonly
applied.").

248 One could also argue it changes a third key element-namely, that laws must be

targeted at preventing some tangible harm and not promoting the legislature's idea of a
moral life. As Part 1.D argued, this is not a substantial change from the Court's jurisprudence
over the last fifty years, and it is a change that Lawrence embraced.

249 See supra Part I.B.

250 Although the problem of phrasing rights is highlighted in substantive due

process cases, it is not a dilemma unique to such cases. The Constitution says nothing, for
instance, about whipping prisoners, yet it is generally assumed such behavior would be
precluded by the Eighth Amendment. U.S. Const. amend. VIII. This is not because "the right
to not be whipped" is spelled out in the Constitution, but because "the right to not be
whipped" falls under the umbrella of cruel and unusual punishment. In substantive due

8452009]



Columbia Journal of Gender and Law

unenumerated liberty rights devolves into arguments over whether the
rights ought to be labeled as "fundamental", 25

1 or as a liberty interest. As a
discussion of this "level of generality" problem will show, an inquiry into
the specific right being protected is more confusing than an appraisal of the
government's justification for its law.252

While Justice Scalia has proposed a method by which substantive
due process rights ought to be deemed fundamental or non-fundamental, his
method of phrasing the right as narrowly as possible would never uphold
any rights at all when taken to its logical conclusion.253 A specific right can
always be phrased more narrowly to the point where the specific plaintiffs
and defendants are named. For instance, in Reliable,25 4 if the Fifth Circuit
had inquired as to whether history and tradition upheld Reliable
Consultants' right to sell sex toys to some specific customer, then no
historical analysis would have been possible because the parties in a case
like Reliable are not likely to have been in the business for very long, let
alone long enough to constitute a long-standing tradition.

Some scholars have argued that the "level of generality" problem
ought to be fixed by conceptualizing rights as points along a rational
continuum. 255 While this approach has been criticized for aggrandizing the

process analysis, however, matters are made more difficult since there is no textual source
under which rights can be included or not included.

251 This is because incursions on fundamental rights receive strict scrutiny. See

CHEMERINSKY, supra note 211, at 417.

252 For more discussion of the way in which fundamental rights are framed in

substantive due process analysis, see John F. Basiak, Inconsistent Levels of Generality in the
Characterization of Unenumerated Fundamental Rights, 16 U. FLA. J.L. & PUB. POL'Y 401
(2005) (arguing for consistent yet moderate level of generality); Tribe & Dorf, supra note
34, at 1071 (arguing for a value-free way of pinpointing one certain, "correct" level of
generality for how a right is to be phrased).

253 In footnote six of Michael H. v. Gerald D., Justice Scalia, joined by Chief

Justice Rehnquist, argued that one ought to look to "the most specific level at which a
relevant tradition protecting, or denying protection to, the asserted right can be identified."
Michael H. v. Gerald D, 491 U.S. 110, 127 n.6 (1989). For more criticism of footnote six,
see Tribe & Dorf, supra note 34, at 1085-92.

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

Reliable, see supra Part II.B.

255 Laurence Tribe and Michael Dorf have argued for a level of generality that
mimics Justice Harlan's proposed "rational continuum" in his dissent in Poe v. Ullman. In
this way, the level of generality problem may be solved by acknowledging a range of
possible outcomes, all of which could be consistent with prior precedent. Judges then make

846 [Vol. 18:3



2009] Toys Are Us 847

role of judges in constitutional jurisprudence,256 the argument's primary
flaw is that it still requires rights to be labeled fundamental or non-
fundamental. The rational continuum view tries to answer the same problem
that Scalia was trying to solve-it simply offers a different solution. 7

Alternatively, abandoning the fundamental/non-fundamental distinction
would add clarity to the discussion about protecting unenumerated rights,
for courts would no longer be forced to engage in ad hoc phraseology and
instead be allowed to examine the state's justification for its action.

Furthermore, from a functional perspective, it is often difficult to
describe what specific "right" a particular activity involves. Pierce v.
Society of Sisters is an excellent example of this sort of problem.258 While
Pierce is often cited for the proposition that the Constitution grants a
fundamental right to parents to direct their children's education,259

claimants in the case were actually private Catholic schools concerned
about going out of business when their students were forced to attend public
schools. 260 The business of the schools was "remunerative, 26

1 and "for
profit." 262 The schools' business was "useful and meritorious, ' 263 and the

appeals to outside moral values in arguing for one particular level of generality. See Tribe &
Dorf, supra note 34. But see Robert H. Bork, Neutral Principles and Some First Amendment
Problems, 47 IND. L.J. 1 (1971) (arguing that constitutional principles must be neutrally
derived, free of ad hoc political judgments).

256 See BORK, supra note 22, at 234-35.

257 Tribe & Dorf, supra note 34, at 1057 ("[We] focus[] on one important aspect of

the quest for constitutional meaning: how to determine whether a particular liberty ... is a
'fundamental' right.").

258 268 U.S. 510 (1925).

259 See, e.g., Jed Rubenfeld, The Right to Privacy, 102 HARV. L. REV. 737, 783

(1989) (citing Pierce as standing for the right to educate children); Louis M. Seidman, The
Dale Problem: Property and Speech Under the Regulatory State, 75 U. CHI. L. REV. 1541,
1545 n.28 (2008) (citing Pierce as providing the right to choose private education for one's
children).

260 See Stephen L. Carter, Parents, Religion, and Schools: Reflections on Pierce, 70

Years Later, 27 SETON HALL L. REV. 1194, 1200 (1997) (stating that the "livelihood of the
private schools the [Oregon] law effectively outlawed").

261 Pierce, 268 U.S. at 532.

262 Id. at 533.

263 Id. at 534.



Columbia Journal of Gender and Law

schools had "business and property for which they claim[ed] protection.,264
While the Court did note that "[t]he child is not the mere creature of the

,,265 o hstate, most of the opinion is dedicated to espousing the virtues of the
privately run, corporate schools that would lose business if Oregon's law
came into effect. Pierce illustrates that it is often unclear where one right
ends and another begins. What is clearer is that the state in Pierce could
offer no justification as to why private schools could not educate whomever
they pleased.266

Shifting focus away from examining the nature of the right asserted
would also provide additional protection for incursions on commercial
rights, which currently receive only passive rational basis review 267 as they
are usually labeled mere liberty interests. 268 On top of historical 269 and
functional270 justifications, the normative justification for protecting
personal rights above commercial rights is weak.27' While the virtues of

'64 Id. at 535.

265 Id.

266 For a general history of Pierce and its impact, see Carter, supra note 259.

267 See supra note 203.

268 See, e.g., W. Coast Hotel Co. v. Parrish, 300 U.S. 379, 398-99 (1937)

(deferring to legislature on reasonableness of commercial regulation).

269 See Loan Ass'n v. Topeka, 87 U.S. 655, 663 (1875) (noting that just as the

government's transferring homestead A from B to C would be unconstitutional, so would the
ordering of B's wife to marry C); James Madison, The Federalist No. 10, in THE FEDERALIST
PAPERS 79 (Charles Kesler & Clinton Rossiter eds., Penguin 1961) (1788) [hereinafter
Madison, The Federalist] (writing that government's "first object" is to protect the faculties
which allow men to acquire property); James Madison, Property, NATIONAL GAZETrE, Mar.
29, 1792, at 174 [hereinafter Madison, Property] ("[property] embraces every thing to which
a man might attach value"). Cf 2 MELVIN I. UROFSKY, A MARCH OF LIBERTY: A
CONSTITUTIONAL HISTORY OF THE UNITED STATES 496-502 (1988) (arguing that substantive
due process emerged as a protective mechanism for industry in the late nineteenth century).

270 See Ronald H. Coase, The Economics of the First Amendment: The Market for

Goods and the Market for Ideas, 64 AM. ECON. REV. 384 (1974) (arguing that for the same
reasons government yields to the virtues of the marketplace in matters of goods, it should
also yield to the marketplace in matters of free speech). But see Owen Fiss, Why the State?,
100 HARV. L. REV. 781 (1987) (arguing that because the government can never be "neutral"
toward speech, it should give up entirely).

271 But see MORTON J. HORWITz, THE TRANSFORMATION OF AMERICAN LAW, 1870-

1960: THE CRISIS OF LEGAL ORTHODOXY 247-72 (1992); Goldman, supra note 194 at 621
("[Commercial activity] is engaged in with others and does not by itself involve any sense of

848 [Vol. 18:3



2009] Toys Are Us 849

controlling one's body and expressive relationships must remain
unquestioned, the virtues of controlling one's livelihood are no less
important.272 To deny or seriously impair one's right to earn a living can
have just as deleterious an impact on one's life as the denial of the right to
engage in consensual sexual relations 273 or the right to marry.274

Founders such as James Madison did not form a government so that
the right to "life" could be protected against the outside use of force, though
the right to property could be infringed as the majority saw fit.275 Madison

intimacy."); Tribe, supra note 43, at 1940-41 (arguing that human relationships are either
"instrumental" or "expressive," the latter of which is "indispensable" and deserves greater
protection by the government). But see Walter Dellinger, The Indivisibility of Economic
Rights and Personal Liberty, 2004 CATO SUP. CT. REV. 9 (2004) (arguing that preservation of
personal rights and preservation of commercial rights are mutually dependent).

272 Successful or not, claimants often try to convince courts that the state's

preventing them from earning a living is unconstitutional. See, e.g., State v. Balance, 51
S.E.2d 731, 735 (N.C. 1949) (the right to be a photographer); Meadows v. Odom, 360
F.Supp.2d 811 (M.D. La. 2005) (the right to arrange flowers, discussed infra Part III.D.2).
Jed Rubenfeld has argued that courts should invoke substantive due process when the
resulting impact of the state's regulation has a profound effect on the citizen's livelihood.
See Rubenfeld, supra note 259.

273 Prostitution is a common example of an instance when the right to earn a living

can overlap with the right to engage in consensual sexual relations. Under this Article's
proposed analysis, the state would argue that its prohibition of prostitution substantially
related to preventing some harm-namely the harm presented by coercion or exploitation of
women. The state would argue that its solution-prohibition of all prostitution-was
substantially related to preventing this harm. The state's argument in such a case would be
strong-the presence of even some regulated prostitution still allows for the possibility that
women will be coerced, either by their pimps or by johns. For more on Lawrence's impact
on prostitution, see Belkys Garcia, Reimagining the Right to Commercial Sex: The Impact of
Lawrence v. Texas on Prostitution Statutes, 9 N.Y. CITY L. REV. 161 (2005) (arguing that
while Lawrence may not invalidate prostitution statutes in the short term, it may pave the
way for decriminalization in the future). But see Sunstein, supra note 43 (stating that
"Lawrence is best taken not to affect existing law" concerning prostitution).

274 See supra note 28.

275 See WILLI PAUL ADAMS, THE FIRST AMERICAN CONSTITUTIONS: REPUBLICAN

IDEOLOGY AND THE MAKING OF THE STATE CONSTITUTIONS IN THE REVOLUTIONARY ERA 194
(2001) (surveying early state constitutions and finding that "[t]he first state constitutions thus
clearly emphasized the individual's claim to legal protection of his property"); Madison,
Property supra note 269, at I (emphasizing need for government protection of property).
Indeed, Madison saw property as more vulnerable to legislative majorities than "rights of
conscience." See JACK N. RAKOVE, ORIGINAL MEANINGS: POLITICS AND IDEAS IN THE
MAKING OF THE CONSTITUTION 314-315 (1996) (describing how Madison recognized that
because government would always have to regulate economic matters to some degree,



Columbia Journal of Gender and Law

understood that a person's body and his property are inseparable-each is
the product of human individuality and rationality. 276 To say that one
supersedes the other is to say the right half of a cup of coffee is more
deserving of consumption than the left half. Abandoning the
fundamental/non-fundamental distinction would protect these vital
commercial interests since courts would scrutinize more intently laws that,
while not concerning personal autonomy, do not prevent harm in any
appreciable way.

2. No More Compelling Interests

Abandoning the compelling interest aspect of substantive due
process analysis raises different objections. Even strong advocates of
protecting liberty would allow the government to intrude on such rights as
long as these intrusions are narrowly tailored to address some proper
purpose and are the least restrictive alternative available. 277

Just as scholars have argued that a narrow but absolute right is
278preferable for free speech and free exercise cases, protecting a narrow

bandwidth of activity absolutely is preferable to protecting a wide span of
activity, subject to the interests of government. This Article's proposed
analysis would therefore consider government interests, but only insofar as
determining whether a right exists-not whether the government interests
are pressing enough to allow an incursion on that right.

This is not merely a rhetorical shift. If one is skeptical of
government power, as certain Founders surely were,279 one would prefer

derogation of property rights would always be likelier than a derogation of rights of
conscience).

276 See Madison, Property, supra note 269.

277 See BARNETT, supra note 102, at 336.

278 See Vincent Blasi, The Pathological Perspective and the First Amendment, 85

COLUM. L. REV. 449, 452-59 (1985) (arguing that free speech rights can become politically
vulnerable when interpreted expansively); Philip Hamburger, More Is Less, 90 VA. L. REV.
835 (2004) (arguing the same for right to free exercise of religion).

279 See, e.g., JAMES MADISON, PROCEEDINGS OF MAY 3 1, NOTES (1787) reprinted in

1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 51 (Max Farrand ed., 1966)
(referring to "turbulence and follies of democracy"). Some scholars have seen the Founding
in more democratic terms. See, e.g., LARRY KRAMER, THE PEOPLE THEMSELVES: POPULAR
CONSTITUTIONALISM AND JUDICIAL REVIEW (2004) (arguing that Founders trusted people to
preserve their rights). But see RAKOVE, supra note 275, at 49 ("Madison traced the sources
of unjust legislation to... 'the people themselves').

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2009] Toys Are Us

that a right be protected in a narrow but absolute way, compared to a
manner that is broad but flexible to the changing needs of government.2 80

Individual rights are often most vulnerable during times of national
hardship, so conceptualizing these rights as subject to the interests of the
state could very well lead to the derogation of the interests of the individual
during times of military or economic turmoil. 281 Balancing rights also
ignores the natural soil from which individual rights spring. The Founders
spoke of inalienable rights-rights that government could not take away
because government never owned them in the first place. 82

C. Avoiding Indeterminacy and Promoting Efficacy

Both for purposes of consistency 283  and restraint,284  any
constitutional standard ought to be practicable. Part III.C will argue that this
Article's proposed analysis would not lead to expansive, indeterminate

280 See Hamburger, supra note 278, at 890-91 (arguing that growingly expansive

conception of free exercise right by the Supreme Court and academia has led to derogation
of right).

281 But see RAKOVE, supra note 275, at 332-33 (describing Madison's belief that

not even an enumeration of rights could prevent the majority from suspending habeas corpus
during time of "civil turmoil").

282 See, e.g., I ANNALS OF CONGRESS 759 (1789) (Rep. Sedgwick stating that the

right to assemble is a "self-evident, unalienable right which the people possess"); Thomas
Jefferson, Query 17, in NOTES ON THE STATE OF VIRGINIA 157-61 (William Peden ed., U. of
N.C. Press 1954) (1784) ("The rights of conscience we never submitted, we could not
submit."); Grey, supra note 207 (arguing that the Founders favored a higher, unwritten,
fundamental law); Suzanna Sherry, The Founders' Unwritten Constitution, 54 U. CHI. L.
REV. 1127, 1127-28 (1987) (same). See also United States v. La Jeune Eugenie, 26 F. Cas.
832 (C.C.D. Mass. 1822) (rev'd on other grounds) (referring to right to not be slave as
among those "discoverable by the light of reason").

283 For example, in his Lawrence dissent, Justice Scalia expressed worry that the

majority opinion could produce inconsistency. Lawrence v. Texas, 539 U.S. 558, 604 (2003)
("The people may feel that their disapprobation of homosexual conduct is strong enough to
disallow homosexual marriage, but not strong enough to criminalize private homosexual
acts-and may legislate accordingly."). See also Bork, supra note 255 (arguing for judicial
consistency).

284 See ALEXANDER BICKEL, THE LEAST DANGEROUS BRANCH 133-34 (2d ed.

1986) (arguing for virtues of deferring to legislature on matters of policy); J. Harvie
Wilkinson I1l, Of Guns, Abortion, and the Unraveling Rule of Law, 95 VA. L. REV. 253
(2009) (same).



Columbia Journal of Gender and Law

litigation and that it is sufficiently, but not overly, deferential to a
legislature's fact-finding power.

While adoption of this Article's analysis might increase the number
of plaintiffs claiming that the government is infringing on their liberty
rights, the number of claims would eventually decline as claimants discover
that an absolute but narrow right to liberty is not a license to partake in any
activity one wishes.2 85 Even if the number of cases decided in the claimants'
favor is greater than previously, such an increase would be justifiable since
it would mean the legislature had been passing laws not substantially
related to preventing harm. Furthermore, many of the Supreme Court's
most famous (albeit controversial) decisions, such as Brown v. Board of
Education,286 have led to initial increases in the number of constitutional
claims filed.287 Although the implications of such cases were initially
unclear, over time the outcomes of potential cases became clearer, and
indeterminacy was less of a problem. 288

Some might argue that this Article's solution would require the
judicial branch to find facts that are outside its normal area of expertise: that
is, the facts necessary to determine whether or not a law substantially
relates to preventing harm. This point, however, ignores the constitutional
fact-finding in which courts already engage and in which they must engage
in order to protect individual rights, whether they be enumerated or
unenumerated. 289 For example, in First Amendment cases, courts must
ensure that laws regulating the time, place, and manner of speech are
narrowly tailored to meet a substantial government interest, do not

... See infra Part 11I.D (exploring applications of this Article's proposed analysis).

286 347 U.S. 483 (1954).

287 See MICHAEL J. KLARMAN, BROWN V. BOARD OF EDUCATION AND THE CIVIL

RIGHTS MOVEMENT (2007).

288 See id.

289 Several state courts also engage in extensive fact-finding as to the propriety of
economic regulations. See, e.g., Susan Boyd, A Doctrine Adrift: Land Use Regulation and
the Substantive Due Process of Lawton v. Steele in the Supreme Court of Washington, 74
WASH. L. REV. 69 (1999) (discussing how substantive due process has been used on the state
level to invalidate naked wealth transfers between private parties). The Supreme Court has
also ruled that substantive due process protection applies to punitive damages in civil cases.
State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 416 (2003). While this
"protection" in punitive damage cases does not require the pinpointing of any certain
economic "right," the normative reasons for protecting a claimant's money in punitive
damage cases could surely extend to cases in which legislatures regulate commercial rights.

[Vol. 18:3



2009] Toys Are Us 853

unreasonably limit other avenues of expression, and present the least
possible intrusion upon the freedom of expression. 290 Such analysis is
impossible unless courts independently evaluate the extent to which a law is
over- or under-inclusive. Unlike speech, the liberty rights of which this
Article has spoken are not enumerated in the text of the Constitution, but
the "necessity" evaluation that courts typically perform for speech cases is
also not enumerated.2 9' Nevertheless, courts have not stopped formulating
precedent regarding what is a necessary regulation of speech.292 Judges are
comfortable making "necessity" evaluations because they understand that
such determinations are indispensible for simultaneously safeguarding
freedom and allowing the sort of common sense regulation that
governments must enforce. There is no reason to believe that, given an
appropriate standard, the judiciary could not also perform this function in
cases pertaining to unenumerated rights.293

D. Application

Any constitutional standard should be capable of producing
consistent, predictable results.294 The goal of Part III.D is to demonstrate
that the application of this Article's proposed analysis to sex toy cases and

290 See Ward v. Rock Against Racism, 491 U.S. 781, 789 (1989).

291 See id.

292 See id. One could also call this sort of elaboration on what constitutes a

violation of a constitutional right a "constitutional construction." This term is popular among
modem originalists. See, e.g., Lawrence Solum, Heller and Originalism, Part Il1: The
Interpretation-Construction Distinction, LEGAL THEORY BLOG, July 3, 2008,
http://lsolum.typepad.com/legaltheory/2008/07/heller-and-orig.html (defining constitutional
construction as "the activity of translating the semantic content of a legal text into legal
rules, paradigmatically in cases where the meaning of the text is vague").

293 Some might argue that this sort of analysis would be just as inappropriate for

enumerated rights as it is for unenumerated rights. This sort of argument, described in
BICKEL, supra note 284, necessarily takes issue with the entire logic of judicial review. See
also BORK, supra note 22, at 139-41 (describing countermajoritarian difficulty). However,
even critics of judicial review, such as Bickel and Bork, acknowledge that the courts must
protect some rights, which requires some evaluation as to the necessity or reasonableness of
a regulation, which requires some extra-textual standard.

294 See supra notes 283-284 and accompanying text.



854 Columbia Journal of Gender and Law [Vol. 18:3

to other cases would not lead to the sort of indeterminacy often associated
with intermediate scrutiny analysis in other contexts. 295

1. Sex Toy Statutes

To determine the constitutionality of laws banning the sale of sex
toys, judges would have to determine whether the legislation is substantially
related to preventing harm. This analysis296 would allow the court to
honestly evaluate the state's justification for its statute. This is a superior
and more direct approach than that taken in Williams and Reliable, which
hinged on which box the "right" at stake should be placed into.297

The state could present two reasons why such statutes substantially
relate to targeting a preventable harm. First, it could argue that the sale of
sex toys must be prohibited in order to prevent unsuspecting or nafve
minors from purchasing products they do not understand or that their
parents do not want them to see. Second, the state could argue that the
advertising of adult material would infringe upon public decency in a way
similar to the harm caused by an offensive billboard on the side of a
highway.298

An outright prohibition on the sale of sex toys is not substantially
related to preventing these harms. A vast majority of vendors already
restrict entrance to their stores to those over eighteen or twenty-one. 299 If

295 See Beschle, supra note 79 (calling intermediate scrutiny far less determinate

than strict scrutiny or rational basis, yet still advocating that it be applied in substantive due
process cases).

296 See supra Part I.

297 For criticism of this approach, see supra Parts I.B, II.A-B, III.B. 1.

298 For more on Lawrence's potential impact on obscenity statutes, see Michael P.
Allen, The Underappreciated First Amendment Importance of Lawrence v. Texas, 65 WASH.

& LEE L. REV. 1045 (2008); Elizabeth M. Glazer, When Obscenity Discriminates, 102 Nw.
U. L. REV. 1379 (2008). State efforts to prohibit billboards advertising the presence of adult
stores have often been found unconstitutional on First Amendment grounds. See Federal
Judge Blocks Kan. Ban on Sexy Billboards, ASSOCIATED PRESS, July 1, 2009, available at
http://www.firstamendmentcenter.org/Speech/adultent/%5Cnews.aspx?id=21778 (surveying
cases in which courts have found restrictions on such signs unconstitutional on First
Amendment grounds). The content of such signs was usually textual and did not have sexual
imagery.

299 For instance, in Williams I, the stores at issue had prominent signs posted
outside their doors stating, "If offended by explicit sexuality, Please do not enter, You must
be 21 years of age." Williams v. Pryor, 41 F. Supp. 2d 1257, 1262 (N.D. Ala. 1999). In order



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the state is concerned that stores are not adhering to these self-imposed
restrictions, it could simply pass laws prohibiting minors from entering
stores that sell sex toys, as opposed to prohibiting all sales.

As for laws banning the advertising of sex toys, an outright
prohibition is not substantially related to preventing the harm posed by an
offensive, public advertisement. 300 Again, the state could prohibit the public
advertising of sex toys, yet still permit the sex toys to be sold. Furthermore,
some vendors of sex toys do not engage in public advertising at all and
function instead by word of mouth.30 '

Statutes banning the sale of sex toys also provide a good example
of how the "substantial relation" test can filter out insincere justifications
from the legislature.30 2 A possible motivation behind these statutes might be
that certain legislators disapprove of the use of sex toys, and banning their
sale is a way for the legislators to symbolically express their disapproval.
Requiring the legislature to present a reason that its law substantially relates
to preventing harm uncovers the "real" justification.

2. Other Statutes

This Article's proposed analysis would have little impact on most
environmental and commercial regulations. It is likely these laws
substantially relate to preventing harm by preventing fraud or externalities
and should be upheld. This is in contrast to what would happen if all
environmental or commercial regulation had to be narrowly tailored and in

to justify an outright ban, the state would also have to present at least some evidence that so
many minors are trying to infiltrate sex toy shops that the only solution must be to prohibit
all sales. The state did not present such evidence in the Williams case, and it probably could
not make such a showing. See Brief of Defendant-Appellee, Williams v. Att'y Gen. of Ala.,
378 F.3d 1232 (1 1th Cir. 2002) (No. 06-11892-J).

300 The Court in Reliable dismissed the vendors' commercial speech based First

Amendment claims. Reliable Consultants v. Earle, 517 F.3d 738, 747 (5th Cir. 2008).

301 "Saucy Lady, Incorporated," for example, gains customers primarily through

referrals. See Williams, 41 F. Supp. 2d at 1263. In contrast, certain magazines sold in
Alabama do advertise the sale of sex toys. Id. at 1268. However, one could argue that minors
are most likely to be exposed to advertisements on the internet, the presence of which
Alabama's law does nothing to prevent. While a fact like this would not be dispositive under
this Article's analysis, it is surely something that the court should consider in evaluating
whether or not the statute substantially relates to preventing harm.

302 See supra note 232.

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856 Columbia Journal of Gender and Law [Vol. 18:3

the least restrictive way available.3 °3 For example, if this were the case, the
state would have to prove that its carbon dioxide emissions standards were
the most narrowly tailored and least restrictive means available to protect
air quality. This would be a very high standard for the state to meet, and
most such regulations would be struck down since the claimant could
almost always show that some other unregulated source of carbon dioxide
existed, or that a claimant's carbon dioxide emissions could be regulated in
a less restrictive way. 3

0
4 The rational basis alternative, however, would be

just as undesirable.30 5 The state would simply assert that a particular
regulation preserved a public good, and the court would likely accept the
state's justification.30 6

Certain state licensing statutes provide an example of commercial
regulation that would not substantially relate to preventing harm. Many
such laws are targeted more at protecting existing members of those
industries, 307 rather than ensuring an applicant's fitness or regulating that
profession in a reasonable manner.30 8 For example, in Meadows v. Odom,309

303 See supra note 13.

304 See supra note 277.

305 See supra note 203.

306 But see City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985)
(striking down a zoning law under rational basis review). For more on Cleburne, see supra
Part I1I.A.3.

307 The Sixth Circuit ruled in Craigmiles v. Giles, 312 F.3d 220 (6th Cir.2002), that

"[c]ourts have repeatedly recognized that protecting a discrete interest group from economic
competition is not a legitimate governmental purpose." Id. at 224 (citing City of Philadelphia
v. New Jersey, 437 U.S. 617, 624 (1978) ("Thus, where simple economic protectionism is
effected by state legislation, a virtually per se rule of invalidity has been erected."). See also
Santos v. City of Houston, 852 F. Supp. 601, 608 (S.D. Tex. 1994) (holding that "economic
protectionism in its most glaring form ... [is] not legitimate"). But see Powers v. Harris, 379
F.3d 1208, 1220 (10th Cir. 2004) ("[T]he Supreme Court has consistently held that
protecting or favoring one particular intrastate industry, absent a specific federal
constitutional or statutory violation, is a legitimate state interest."); Meadows v. Odom, 360
F. Supp. 2d 811, 821 (M.D. La. 2005) (agreeing with the Powers court). See also Timothy
Sandefur, Is Economic Exclusion a Legitimate State Interest? Four Recent Cases Test the
Boundaries, 14 WM. & MARY BILL RTS. J. 1023 (2006) (arguing that protectionism is not
legitimate state interest).

308 Fitness and reasonable regulation have typically been the permissible bases for

state licensing statutes. See Schware v. Board of Bar Exam'rs, 353 U.S. 232, 239 (1957)
(outlining reasons why state can regulate licensing of lawyers). However, because such laws



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a Louisiana District Court upheld a rigid31 ° licensing process for those
applying to be floral arrangers. Some licensing of floral arrangers might be
substantially related to ensuring fitness or reasonable regulation. 3 11

However, the requirements in the Meadows case were so high that the
legislation could not have substantially related to preventing harm.3 12 The
rational basis review was not enough to strike down the licensing
requirements in Meadows. However, the alternative, a strict scrutiny
standard, would demand a narrow tailoring and the least restrictive
alternative. This would be just as undesirable since strict scrutiny might not
permit any licensing by the state at all, possibly resulting in fraud or low
quality service.

Additionally, laws banning incest most likely do not substantially
relate to preventing harm. The legislature could potentially present two
reasons to the contrary: first, that outlawing incest prevents the long-term
corruption of the gene pool, and second, that outlawing incest prevents the
subjugation of impressionable relatives.31 3 To determine whether outlawing

are subject only to rational basis analysis, courts can almost always find licensing laws are

rationally connected to promoting fitness or permissible regulation. Cf supra note 307.

309 360 F. Supp. 2d 811 (M.D. La. 2005).

310 The licensing process is divided into written and practical portions. The

applicants' arrangements are graded on such qualities as "whether the applicant's floral
arrangement has 'the proper focal point,' whether the flowers in the arrangement are 'spaced
effectively,' and whether 'the greenery was picked properly."' Plaintiff's Complaint,
Meadows v. Odom, 360 F. Supp. 2d 811 (M.D. La. 2005) (No. CIV.A. 03-960-B-2). Tests
are graded by arrangers already licensed by the state; pass rates are typically less than fifty
percent; many arrangements receive perfect scores from certain judges, while receiving a
score of zero from other judges on the same panel; and applicants who have been floral
arrangers for decades outside Louisiana often fail the exam. Id.

311 The plaintiffs in Meadows challenged the rationality of any licensing

requirement for floral arrangers. Meadows, 360 F. Supp. 2d at 823 ("[T]he plaintiffs contend
they are only challenging the right of the state to license the florist occupation and are not
challenging the fairness of the examination or the manner in which it is given."). Regardless
of the plaintiffs' strategy in Meadows, this Article's analysis would not demand that no state
license florists. Instead, such licensing must substantially relate to preventing the sort of
harm usually addressed by licensing statutes (fitness and reasonable regulation). For more on
the plaintiffs' strategy in Meadows, see Clark Neily, No Such Thing: Litigating Under the
Rational Basis Test, 1 N.Y.U. J. L. & Liberty 898 (2005).

312 See supra note 310.

313 See Brett H. McDonnell, Is Incest Next?, 10 CARDOZO WOMEN'S L.J. 337, 352-
53 (2004) (discussing justifications for incest laws and finding that "core forms of incest"

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incest substantially relates to preventing these harms, courts would have to
debate whether statutes banning all incest actually address the danger
presented by corruption of the gene pool. Some incest laws, for example,
outlaw sex between stepchildren or sex between those of the same
gender.31 4 Evidence also shows that the risk of corrupting the gene pool is
insignificant for sex between cousins.31 5

The concern regarding subjugation would raise the different
question of whether the subjugation harm is not already adequately
addressed by statutory rape laws, or other laws concerning coercive sexual
relations. The state would have to argue that instances of one adult having
sex with another adult in the same family were so pressing that all sexual
relations between family members should be prohibited, no matter what the
level of coercion. Since it is doubtful that the state could meet this
burden,31 6 laws prohibiting all sexual relations between consenting adult
relatives would not substantially relate to preventing the harm posed by
subjugation.

Most important in these examples is how this Article's analysis
would shift the court's attention from evaluating the importance of the
asserted right-whether it be the right to arrange flowers or the right to
have sex with one's cousin-to evaluating the state's justification for its
laws. Forcing the state to justify its laws using a "substantial relation"
standard would place some check on the legislative power, while not
entangling the courts in the everyday regulation of public goods.

IV. CONCLUSION

For forty years, the Supreme Court has protected unenumerated
liberty rights by labeling some rights "fundamental" and others "liberty

would probably "survive rational basis with bite"). But see Karlan, supra note 28, at 1458
(arguing that because laws against incest do not "draw lines" around individuals in the same
way that prohibitions on same-sex marriage do, the two sorts of laws are of different
characters entirely); Tribe, supra note 43, at 1944 (same).

314 See, e.g., KAN. STAT. ANN. § 21-3602 (2009) (outlawing same-sex incestuous

sodomy).

315 See Denise Grady, Few Risks Seen to the Children of 1st Cousins, N.Y. TIMES,

Apr. 4, 2002, at A l (reporting on a review of six major studies).

316 See McDonnell, supra note 313, at 354 ("Since we are focused on relationships

between adults it appears paternalistic to assume that most such relationships would be
coercive in a way that courts could not observe.").

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interests," with violations of the latter receiving passive rational basis
review and violations of the former receiving strict scrutiny. This tiered
approach has led to the disparagement of commercial interests, which rarely
receive "fundamental" status. It has also produced rhetorical confusion, as
arguments over unenumerated rights devolve into disputes about how the
specific right at stake should be phrased. Williams and Reliable are good
examples of both problems. To invoke strict scrutiny, claimants in these
cases invariably argue that the Supreme Court has "created" a right to
sexual privacy, even though bans on the sale of sex toys have a negligible
impact on sexual privacy. Instead, the statutes should be understood as
burdening the commercial interests of the affected vendors and sellers.
These are burdens that neither the Williams nor the Reliable courts
appreciated, and burdens that the state cannot sufficiently justify. Requiring
that all legislation substantially relate to preventing harm would avoid these
difficulties and present a limited, yet defined, check against the power of
the legislature to restrict the liberty of its citizens.

2009] 859