Can't wait to hear Souter say "G-spot"

The Fifth Circuit has denied an en banc rehearing of its February decision striking down the Texas Obscene Device Law, which outlawed dildoes and vibrators in the Lone Star State. The original decision relied on the usual suspects--substantive due process under the 14th Amendment, private intimate conduct, Lawrence v. Texas--to hold that the law heavily burdened Texas citizens who wished to get freaky with the help of a $220 Chrome Juicer.

Eugene Volokh speculates that the Supreme Court will hear Texas's appeal, and guesses it will vote 6-3 in favor of the law's constitutionality. The idea is that some of the moderate justices, specifically Kennedy and Breyer, will conclude that the traditional state's interest in regulating morality (which, according to Texas, includes an interest in "discouraging prurient interests in autonomous sex and the pursuit of sexual gratification unrelated to procreation”) should hold unless it implicates a right "important to most people's lives." Chrome Juicers and Fists of Adonis apparently don't make the cut.

Volokh's co-blogger Dale Carpenter lays out a more comprehensive set of possibilities, and tentatively suggests that the law could be struck down by a Kennedy-led 5-4 majority on either a 'fundamental right' or rational-basis analysis. I agree. Justice Kennedy will be certain to angle for a crucial role in the whatever decision the Court hands down, and I find Volokh's suggestion that Justice Breyer might join with a Scalia- or Roberts-led majority unlikely. And with Kennedy as the swing vote, I just can't see him joining an opinion that would undermine what I'm sure he sees as his legacy: the decision in Lawrence that finally got rid of the notion that a state could ban homosexual conduct between consenting adults. True, that opinion neatly dodged the crucial question of whether 'traditional' (read = sex-regulating) morality could ever suffice as a 'rational basis' for government interference with private sexual behavior. It is possible that once having cemented his spot as the key vote, Kennedy could parse some meaningless distinctions, do a lot of on-the-one-hand equivocating, and muddle his way toward allowing the law to stand.

But after all the grief he's taken from Scalia and the SocialCons for Lawrence, I just don't see him letting Texas come into his Court (and these days, he sure thinks it's his Court) and tell him that, Lawrence not withstanding, they can still tell people how and how not to fuck.

For readers who found the Chrome Juicer too tame, The October Protocol recommends The Marvelous Anchor.