AUSTIN, Texas – Two bills currently under consideration in Texas, SB 3003 and HB 1549, might be newly proposed legislation, but there’s nothing new about the state seeking to strictly regulate the advertising, sale and distribution of sex toys and other adult products.

Submitted by Sen. Angela Paxton, whose husband Ken is the state’s Attorney General, SB 3003 makes it a criminal offense when a person “with criminal negligence… sells or delivers an obscene device online to an individual under the age of 18 or to any person without implementing an age verification process at the point of sale to reasonably ensure that the purchaser is 18 years of age or older.”

Violation of the law would constitute a Class A misdemeanor, which under Texas law carries a potential jail term of one year. Typically, these misdemeanors also bring a fine of up to $4000, but SB 3003 sets the civil penalty at “an amount not to exceed $5,000 for each violation.”

Meanwhile, HB 1549 offers “restrictions on the sale of obscene devices” such that stores which are not deemed a “sexually oriented business” under state law would be prohibited from selling sex toys. The bill provides that a “business in this state may not sell, offer for sale, or hold for sale an obscene device, unless the business is a sexually oriented business operating in accordance with Chapter 102.”

Under the new law, a “county or district attorney who believes that a business located in that county or district attorney’s jurisdiction has violated or is violating (the new law) may bring an action in a district court of the county to enjoin the business from violating that section.”

In addition to seeking the injunction, the county or district attorney “may request and the court may order any other relief that may be in the public interest, including… the imposition of a civil penalty in an amount not to exceed $5,000 for each violation… and an order requiring reimbursement to the county or district for the reasonable value of investigating and prosecuting a violation.”

These bills mark the resuscitation of a longtime effort by the state to restrict the sale, distribution and even mere possession of sex toys in Texas. Nearly 20 years ago, the U.S. Supreme Court declined to hear a challenge to a state law under which an adult shop clerk was arrested after showing two undercover police officers a penis-shaped device and advising the female officer that it would be “sexually effective.”

Two years later, the state’s ban the sale of sex toys – a priority for then-Attorney General and now Governor Greg Abbot – was struck down by the courts, with the U.S. Court of Appeals for the Fifth Circuit holding the law violated state residents’ Fourteenth Amendment right to privacy, a ruling grounded in the watershed case Lawrence v. Texas.

The state’s conservatives may feel that in the wake of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, the state might fare better in defending laws founded upon the Lawrence decision. There’s at least one Justice, Clarence Thomas, who has suggested several other precedents should be reconsidered in the same light as the Dobbs case.

“In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” Thomas wrote in his concurring opinion in Dobbs. “Because any substantive due process decision is ‘demonstrably erroneous,’ we have a duty to ‘correct the error’ established in those precedents.”

There’s a lot of ground to be covered between these two Texas bills being considered and a case challenging either of them making its way up to the Supreme Court, of course. But should it happen and enough of Thomas’ peers agree with his perspective, Texas might be able to reclaim ground it previously lost in its decades-long Dildo War.

Texas State Capitol Image by LoneStarMike via Creative Commons Attribution 3.0 Unported license