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Publication Date

2009

Abstract

Sexual norms in the United States are in flux. The rapid growth of the adult industry and the popularity of television shows that deal with sexuality evidence an ever-growing trend towards more liberal sexual norms. While many Americans accept-or even welcome-this shift in our sexual culture, others feel significant anxieties about the moral well-being of the community as a result of this shift away from traditional,conservative sexual values. As the culture war wages on, some states have chosen to respond to these anxieties through legislation. The U.S. Supreme Court's 2003 decision in Lawrence v. Texas, however, appears to have called into question states' assertions of their traditional police power in this realm. Through an analysis of the recent circuit split between the Fifth and Eleventh Circuit Courts of Appeal over the constitutionality of state sex toy sales bans, this Note explores many of the issues that have arisen since Lawrence about the constitutionality of state regulation of sexual conduct and morality. Ultimately, this Note concludes that the Fifth Circuit's expansion of Lawrence's ambiguous precedent in Reliable Consultants, Inc. v. Earle pushes the doctrine of substantive due process down a path that serves only to unleash judicial discretion and undermine the democratic process of law-making embodied in the Constitution. In contrast, this Note suggests following the narrower approach to Lawrence, adopted by the Eleventh Circuit in Williams v. Attorney General of Alabama, as a way to cabin Lawrence's expansive implications and preserve the states' traditional police powers.

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