the scope of substantive due process

Last month, the Fifth Circuit decide a potentially important case, Reliable Consultants, Inc. v. Earle. The opinion is here. The case involves "the constitutionality of a Texas statute making it a crime to promote  or sell sexual devices." The Fifth Circuit, by a 2-1 vote, found the statute unconstitutional. The decision creates a conflict with at least the 11th Circuit, which rejected constitutional challenges to similar Alabama law.

The basic issue in these cases is how to read Lawrence v. Texas. Since 2003, most courts have read Lawrence narrowly. Most courts have been unwilling to extend the Court's ruling to other contexts. Put another way, the dire predictions in Justice Scalia's dissent (that Lawrence puts an end to all morals legislation) have not yet come to pass.

The 5th Circuit's recent ruling takes up Lawrence's invitation. The court extends substantive due process to conduct that doesn't even involve a relationship, a fact mentioned repeatedly in Lawrence. The 5th Circuit also rejects public morality as a sufficient basis for the Texas law.

These cases raise profound issues about the nature of freedom, the state's interest in public morality, and the role of the judiciary, among others.

Richard M.