Another Texas statute may be winding its way to the United States Supreme Court.

Yesterday, in Reliable Consultants, Inc. v. Earle, a panel of the Fifth Circuit struck down the Texas statute regulating “obscene devices”¹ on the ground that it violated the same substantive-due-process principle that animated Lawrence v. Texas. The vote was 2-1 on that question, with Judge Reavley and Judge Prado in the majority and Judge Barksdale dissenting.

There now appears to be a direct split between the Fifth Circuit and the Eleventh Circuit on whether Lawrence invalidates this class of laws.²

1. The two relevant statutes are Texas Penal Code §43.21(7) and Texas Penal Code §43.23. [↩]
2. I suppose it cuts against certiorari that there are only a handful of states with statutes precisely like these, but reading Lawrence to undermine statutes grounded in public morality may have unforeseen effects — such as the 2005 district court decision (later reversed by the Third Circuit) that had used Lawrence to hold the federal obscenity statute unconstitutional. [↩]