IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals
No. 06-51067 August 1, 2008
Charles R. Fulbruge III
RELIABLE CONSULTANTS INC, doing business as Dreamer's and Le Rouge
Plaintiff - Appellant
PHE INC, doing business as Adam and Eve Inc
Intervenor - Plaintiff - Appellant
RONNIE EARLE, in his official capacity only, Travis County District
Defendant - Appellee
STATE OF TEXAS,
Intervenor - Defendant - Appellee
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Appeals from the United States District Court for the Western District of Texas, Austin[End Page ]
ON PETITION FOR REHEARING EN BANC
(Opinion February 12, 2008, 5 Cir.,
Before REAVLEY, BARKSDALE, and PRADO, Circuit Judges.
Treating the Petition for Rehearing En Banc as a Petition for Panel
Rehearing, the Petition for Panel Rehearing is DENIED. The court having been
polled at the request of one of the members of the court and a majority of the
judges who are in regular active service and not disqualified not havingvoted in
favor (FED. R. APP. P. and 5TH CIR. R. 35), the Petition for Rehearing En Banc
EDITH H. JONES, Chief Judge, together with JOLLY, SMITH, CLEMENT, and
OWEN, Circuit Judges, dissenting from the denial of rehearing en banc:
Part I of Judge Emilio Garza's dissent, infra, explains well why the
procedural and substantive flaws embodied in the Reliable panel opinion should
have warranted en banc rehearing by this court. To summarize, Reliable
extends Lawrence v. Texas, 539 U.S. 558
, 123 S. Ct. 2472
warrant;1 conflicts with the decisions of other circuits; overrules sub silentio a
prior controlling decision of this court; and ignores the obvious tension between
its result and Supreme Court precedent upholding similar sexual device
legislation. Far from being "compelled" by Lawrence to overturn the Texas sexual devices statute, the Reliable majority exploited the decision's broad and
vague statements about liberty while ignoring the Court's self-imposed limits on
The Supreme Court alone will ultimately decide how far and on what basis
Lawrence extends beyond the scope of conduct there given constitutional
protection. It is not for lower courts, in our view, to leverage Lawrence into
overriding all sorts of "morals" laws in defiance of the democratic processes that
produced them. Lawrence did not disavow Chief Justice Rehnquist's admonition
in Washington v. Glucksberg:
But we "ha[ve] always been reluctant to expand the concept of
substantive due process because the guideposts for responsible
decisionmaking in this unchartered area are scarce and
open-ended." Collins v. City of Harker Heights, 503 U.S. 115
112 S. Ct. 1061
, 1068 (1992). By extending constitutional protection
to an asserted right or liberty interest, we, to a great extent, place
the matter outside the arena of public debate and legislative action.
We must therefore "exercise the utmost care whenever we are asked
to break new ground in this field," ibid., lest the liberty interest
protected by the Due Process clause be subtly transformed into the
policy preferences of the Members of this Court. Moore v. City of
As Judge Evans has noted, to argue that Lawrence condones every type of sexual
practice trivializes that decision and "demeans the importance of its holding which deals a fatal
blow to criminal laws aimed at punishing homosexuals." Muth v. Frank, 412 F.3d 808
(7th Cir. 2005) (Evans, J., concurring).
East Cleveland, 431 U.S. 494
, 502, 97 S. Ct. 1932
, 1937 (1977)
521 U.S. 702
, 720, 117 S. Ct. 2258
, 2267-68 (1997) (full citations supplied).
Whatever the policy preferences of the Reliable majority may be, I respectfully
doubt that the Members of the Supreme Court intended Lawrence to place
"outside the arena of public debate and legislative action" Texas's prohibition
(with exceptions) on selling sexual devices.
Because it is enough to differ with the majority's extension of Lawrence in
this case, we need not adopt parts II and III of Judge Garza's dissent.
GARZA, J., dissenting from the denial of rehearing en banc:
The Fourteenth Amendment protects our highest aspirations as persons
and as citizens of the United States:
No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor shall
any State deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction the
equal protection of the laws.
U.S. CONST. amend. XIV § 1 (emphasis added).
A panel of this Court relying on Lawrence v. Texas, 539 U.S. 558
has held effectively that the Fourteenth Amendment protects a "substantive due
process right," Reliable Consultants, Inc. v. Earle, 517 F.3d 738
, 744 (5th Cir.
2008), to promote a device "designed and marketed as useful primarily for stimulation of the human genital organs," TEX. PENAL CODE ANN. §§ 43.21-23
(Vernon 2003 & Supp. 2007). See Reliable, 517 F.3d at 747. Because of
Lawrence, this Court declined to reconsider Reliable en banc. It is precisely
because of the Lawrence opinion and the Reliable majority's unwarranted
extension of Lawrence that I would grant rehearing en banc.
In Reliable, two retail distributors of sexual devices sought to increase
their sales of and advertising for sexual devices in Texas. Faced with a Texas statute prohibiting the promotion of such devices,1 these businesses sought a
The Texas statute at issue provides, in relevant part:
(a) A person commits an offense if, knowing its content and
character, he wholesale promotes or possesses with intent to
wholesale promote any obscene material or obscene device. . . .
(c) A person commits an offense if, knowing its content and
character, he: (1) promotes or possesses with intent to promote
any obscene material or obscene device. . . .
TEX. PENAL CODE ANN. § 43.23(a), (c) (emphasis added). An "obscene device" is "a device
including a dildo or artificial vagina, designed or marketed as useful primarily for the stimulation of human genital organs." Id. at § 43.21(a)(7). "Promote" means "to manufacture,
issue, sell, give, provide, lend, mail, deliver, transfer, transmit, publish, distribute, circulate,
[End Page 5]
declaratory judgment to hold the statute unconstitutional and permanently
enjoin its enforcement. See Reliable, 517 F.3d at 741-42. Based on their
understanding of Lawrence, the Reliable majority held that the Texas statute
"impermissibly burden[ed] the individual's substantive due process right to
engage in private intimate conduct of his or her choosing." Id. at 744.
Accordingly, the Reliable majority struck down the statute. In my view, the
Reliable majority made two critical errors: they misunderstood the right
announced in Lawrence, and they extended that right far beyond its limits.
In Lawrence, Houston police officers were dispatched to a private residence
in response to a reported weapons disturbance. Upon entering, they observed
the resident, one "Lawrence," engaging in a sexual act with another man; the
officers arrested the two men who were later convicted of the crime of "deviate sexual intercourse, namely anal sex, with a member of the same sex (man)."
Lawrence 539 U.S. at 562-63. At the time, Texas law provided: "A person
commits an offense if he engages in deviate sexual intercourse with another
individual of the same sex." TEX. PENAL CODE ANN. § 21.06(a) (2003).2 The
Lawrence Court framed the question presented as: "whether petitioners'
criminal convictions for adult consensual sexual intimacy in the home violate
their vital interests in liberty and privacy protected by the Due Process Clause
of the Fourteenth Amendment." Lawrence, 539 U.S. at 564. The Court
disseminate, present, exhibit, or advertise, or to offer or agree to do the same." Id. at §
43.21(a)(5). "Wholesale promote" means "to manufacture, issue, sell, provide, mail, deliver,
transfer, transmit, publish, distribute, circulate, disseminate, or to offer or agree to do the same for purpose of resale." Id. at § 43.21(a)(6).
The Texas statute at issue in Lawrence defined "deviate sexual intercourse" as:
(A) any contact between any part of the genitals of one person
and the mouth or anus of another person; or
(B) the penetration of the genitals or the anus of another person
with an object.
TEX. PENAL CODE ANN. § 21.01(1) (2003).
[End Page 6]
answered this question in the affirmative.3
It is beyond dispute that the Supreme Court decided Lawrence as a substantive due process case. Analyzing a case under substantive due process,
a court will apply one of two levels of scrutiny. If the challenged law infringes
upon a fundamental right, a court applies strict scrutiny. See Reno v. Flores, 507 U.S. 292
, 301-02 (1993). If the challenged law infringes some other non-
fundamental liberty interest, a court applies rational basis review. See Meyer
v. Nebraska, 262 U.S. 390
, 399-400 (1923). The Court in Lawrence did not
announce a fundamental right that would have triggered a strict scrutiny
analysis but rather recognized only a narrow liberty interest protecting "two
adults who, with full and mutual consent from each other, engage in sexual
practices," 539 U.S. at 578, "in the confines of their homes," id. at 567.4
Accordingly, the Lawrence Court tested the constitutionality of the challenged statute under rational basis review, holding that the "Texas statute furthers no
legitimate state interest which can justify its intrusion into the personal and
private life of the individual." Id. at 578
Although the Reliable majority seemed to acknowledge that Lawrence did
not recognize a fundamental right, they failed to acknowledge that Lawrence
recognized only a narrow liberty interest worthy of rational basis review.
Instead, the majority recast the right announced in Lawrence as something
outside of substantive due process jurisprudence entirely:
The Supreme Court did not address the classification nor do we
need to do so, because the Court expressly held that "individual
The Court framed a related question: whether Bowers v. Hardwick, 478 U.S. 186,
190, 196 (1986) should be overruled. Although the Court overruled Bowers, see id. at 578, it
did not disturb its fundamental holding, see id. at 590 & n.2 (Scalia J., dissenting) (citations
The Court specifically disavowed Equal Protection analysis even though the
petitioners advanced it as an alternative (and narrower) basis for invalidating the statute.
Justice O'Connor would have invalidated the Texas statute under the Equal Protection Clause.
Lawrence, 539 U.S. at 579-85 (O'Connor, J., concurring in the judgment).
[End Page 7]
decisions by married persons, concerning the intimacies of their
physical relationship, even when not intended to produce offspring,
are a form of "˜liberty' protected by the Due Process Clause of the
Fourteenth Amendment. Moreover, this protection extends to
intimate choices by the unmarried as well as married persons."
Reliable, 517 F.3d at 744-45 (quoting Lawrence, 539 U.S. at 578). The Reliable
majority thus avoided determining what level of scrutiny to apply to the statute.
Id. at 749 (Barksdale, J., dissenting). Although from that point forward the
majority applied some form of rationality review, their opinion proceeded largely
untethered from precedent and in conflict with at least two of our sister Circuits.
See Seegmiller v. Laverkin City, 528 F.3d 762
, 771-72 (10th Cir. 2008)
(sustaining executive action under rational basis review in light of Lawrence);
Williams v. Attorney General of Alabama, 378 F.3d 1232
, 1236 (11th Cir. 2004)
(noting "the Lawrence opinion . . . ultimately applied rational basis review,
rather than strict scrutiny, to the challenged statute") (citing Lofton v. Sec. Dept.
of Children and Family Servs., 358 F.3d 804
, 816-17 (11th Cir. 2004)).
My disagreement with the Reliable majority is fundamental: having
misunderstood the personal liberty interest announced in Lawrence, they created
a commercial right ex nihilo to promote sexual devices. The Lawrence Court
announced a narrow liberty interest protecting "two adults who, with full and
mutual consent from each other, engage in sexual practices," 539 U.S. at 578,
"in the confines of their homes," id. at 567. Nothing more. Indeed, despite some
broad rhetoric, the Lawrence Court refrained from announcing a fundamental
right under substantive due process analysis and stressed the limited scope of
the case before it:
The present case does not involve minors. It does not involve
persons who might be injured or coerced or who are situated in
relationships where consent might not easily be refused. It does not
involve public conduct or prostitution. It does not involve whether
the government must give formal recognition to any relationship
that homosexual persons seek to enter. The case does involve two
adults who, with full and mutual consent from each other, engaged
[End Page 8]
in sexual practices common to a homosexual lifestyle.
Lawrence, 539 U.S. at 578. The Reliable majority improperly broadened the scope of this narrow personal liberty interest to encompass commercial activity.
The liberty interest announced in Lawrence protects only adult,
consensual, private conduct. The statute in Reliable does not prohibit sexual
conduct, private or otherwise. Nor does it impermissibly burden any personal
right. It prohibits only commercial conduct, e.g. manufacturing, selling, or
advertising sexual devices, including dildos and artificial vaginas, which the
people of Texas, acting through their elected representatives, have deemed to be
particularly immoral, offensive, or otherwise warranting commercial prohibition.
See Reliable, 517 F.3d at 741; compare Griswold v. Connecticut, 381 U.S. 479
485 (1965) (striking statute that forbade "the use of contraceptives rather than
regulating their manufacture or sale"). Moreover, the statute prohibits only
commercial acts in the State of Texas. Texans face no punishment should they
choose to possess or use such devices. Nor do they face punishment for
purchasing such devices in another State and bringing them into Texas for their
private use. See id. Indeed, if Texas had wanted to proscribe private conduct, such as that shielded from State regulation under Lawrence, it could have done so by extending the challenged statute to prohibit the possession or use of such
devices at home. Texas did not. Notwithstanding the challenged statute,
Texans remain free to use whatever devices they wish to augment their private,
adult, consensual sexual activity. Accordingly, the Texas statute does not
infringe any personal liberty interest, announced in Lawrence or otherwise.5 See
In extending Lawrence to invalidate Texas's sexual devices statute, the Reliable
majority ignored the rule that one panel of this Court may not overrule a prior panel decision.
The majority overruled sub silentio Red Bluff Drive-In, Inc. v. Vance, 648 F.2d 1020
1981), a decision that upheld the same statute the Reliable majority struck down. Although
the majority might contend that Lawrence "compelled" their contrary decision, the preceding
discussion shows that is plainly wrong. The majority also has overlooked cases rebuffing
objections to obscenity prosecutions, which contended that Lawrence protects such conduct
among consenting adults. See United States v. Coil, 442 F.3d 912
, 915 (5th Cir. 2006); United
[End Page 9]
Lawrence, 539 U.S. at 578.
In construing the personal liberty interest announced in Lawrence to
encompass commercial activity, the Reliable majority also split with an opinion
of the Eleventh Circuit in a case strikingly similar to Reliable. See Williams, 378
F.3d at 1250. In Williams, the ACLU, on behalf of various individual users and
vendors of sexual devices, filed a lawsuit seeking to enjoin an Alabama statute,
which, like the challenged Texas statute here, prohibited the commercial
distribution of such devices.6 Williams, 378 F.3d at 1233. The Williams Court
began its analysis by observing that the Supreme Court never has recognized a
broadly-defined fundamental right to "privacy" or to "personal autonomy." Id.
at 1235 (citing Washington v. Glucksberg, 521 U.S. 702
, 725 (1997)). Nor,
according to Williams, has the Supreme Court ever recognized a "free standing
"˜right to sexual privacy.'" Id. Indeed, Williams observed that the Supreme Court
has at least twice declined to recognize a fundamental right to sexual privacy,
choosing instead to define narrower liberty interests, specific to the cases at
hand. See id. at 1235-36 (citing Carey v. Population Servs. Int'l, 431 U.S. 678
688 n.5 (1977); Lawrence v. Texas, 539 U.S. 558
(2003)). Finding no
States v. Extreme Assocs., Inc., 431 F.3d 150
, 155-61 (3d Cir. 2005). These cases took seriously,
as the Reliable majority did not, the Court's admonition: "If a precedent of this Court has direct
application in a case, yet appears to rest on reasons rejected in some other line of decisions, the
Court of Appeals should follow the case which directly controls, leaving to this Court the
prerogative of overruling its own decisions." Rodriguez de Quijas v. Shearson/American Exp.,
Inc., 490 U.S. 477
, 484 (1989). Red Bluff stands in a direct line of cases permitting obscenity
regulation. See, e.g., Sewell v. Georgia, 435 U.S. 982
(1978) (dismissing challenge to sexual
devices statute for want of a substantial federal question). It is not for this Court to say that
Lawrence undercuts the Supreme Court's obscenity jurisprudence.
The challenged Alabama statute contains much of the same language as the Texas statute challenged in Reliable. It provides:
It shall be unlawful for any person to knowingly distribute, possess with intent
to distribute, or offer or agree to distribute any obscene material or any device
designed or marketed as useful primarily for the stimulation of human genital
organs for any thing of pecuniary value.
ALA. CODE 13A-12-200.2(a)(1) (Supp. 2003) (emphasis added).
[End Page 10]
fundamental right, the Williams Court concluded that the narrow right
announced in Lawrence did not extend to protect "the commercial distribution
of sex toys," Williams, 378 F.3d at 1250, and thereby left untouched its pre-
Lawrence decision, which, applying rational basis review, held that the Alabama statute did not violate the Fourteenth Amendment, Williams v. Pryor, 240 F.3d 944
, 952 (11th Cir. 2001). The Reliable majority's point of departure from
Williams is their failure to recognize that the liberty interest announced in
Lawrence is a narrow, personal one that does not extend to commercial activity.
Notwithstanding the circuit-split that their opinion created, the Reliable
majority made no effort to explain why, in their view, the Eleventh Circuit erred.
This analysis would be incomplete if I did not discuss two concerns with
Lawrence, as they relate to the Reliable majority's opinion. First, although
Lawrence was decided as a substantive due process case, the Court did not
employ the two-step analytical process it laid out in Glucksberg, 521 U.S. at 720-
21, for determining the scope and the importance of the liberty interest at issue.
Under Glucksberg, a court begins a substantive due process analysis with "a
"˜careful description' of the asserted fundamental liberty interest," 521 U.S. at
721 (citations omitted), and then asks whether the interest is "objectively,
"˜deeply rooted in this Nation's history and tradition,'" id. at 720-21 (citing Moore
v. East Cleveland, 431 U.S. 494
, 503 (1977) (plurality opinion)).7 The Court's
failure to employ this two-step analysis in Lawrence has created much confusion
in interpreting the right announced in Lawrence, as evidenced by the Reliable
majority's analysis. Second, the Lawrence Court reached the conclusion that a
State cannot prohibit certain forms of sexual conduct based upon the moral
judgment of its people. To the extent that Lawrence conducted a substantive due
process analysis, it found, at most, a narrow liberty interest, and then proceeded
Lawrence dismisses history and tradition as only a starting point. See infra note 12.
[End Page 11]
to strike down the challenged statute under rational basis review, holding that
"[t]he Texas statute furthers no legitimate state interest which can justify its
intrusion into the personal and private life of the individual." Lawrence, 539
U.S. at 578. Texas asserted only one state interest in support of its anti-sodomy statute: that it reflected the moral judgment of the legislature and thus the
people. The Lawrence Court, however, concluded that the people's moral
judgment was an illegitimate basis for or otherwise insufficient to sustain the
law. See Reliable, 517 F.3d at 745. But this holding is in tension with
precedents sustaining state legislation based on the people's moral choices.
To establish a system of criminal laws, the legislature must make certain
moral choices, defining what behavior is right and what behavior is wrong.
Absent a constitutional prohibition, those decisions may and should express the
moral judgment of the majority. See Barnes v. Glen Theatre, Inc., 501 U.S. 560
569 (1991) ("The traditional police power of the States is defined as the authority
to provide for the public health, safety, and morals, and we have upheld such as
a basis for legislation.") (emphasis added) (citation omitted). Sexual behavior
does not fall outside this principle simply because it is intimate and private in
nature. The Lawrence majority admits as much: "Beginning in colonial times
there were prohibitions on sodomy," a sexual act, "derived from the English
criminal laws passed in the first instance by the Reformation Parliament of
1533."8 Lawrence, 539 U.S. at 568. By striking down the Texas statute, the
Lawrence Court disregarded this principle, just as the Court did in Romer when
it held that moral disapproval of homosexual conduct, as expressed by the people
through their elected representatives, was insufficient to sustain legislation
prohibiting such conduct. See Romer v. Evans, 517 U.S. 620
, 632-36 (1996)
The codification of moral choices with respect to sexual acts is not limited to colonial
times. Today, state criminal laws prohibit sex-based offenses such as prostitution, polygamy,
incest, and bestiality, to name a few. The Lawrence Court did not explain why prohibiting
these sexual acts advances a legitimate state interest whereas prohibiting homosexual sodomy
[End Page 12]
(striking Colorado law prohibiting special treatment of homosexuals under
Equal Protection Clause as not rationally related to a legitimate state interest).
The Court ignores that by creating morality-based, non-textual rights it does
nothing more than substitute its own moral compass for that of the People. The
Reliable majority does the same. Based on the Court's own precedent, it would seem that the people of Texas have a legitimate interest in prohibiting sexual
behavior they find to be immoral and therefore unacceptable. See Lawrence, 539
U.S. at 599 (Scalia J., dissenting).
These concerns go to the very core of substantive due process
jurisprudence under the Fourteenth Amendment and to the scope of the Court's
constitutional authority. Lawrence is the latest in a line of cases through which
the Court has constitutionalized certain unenumerated "rights" and "liberty
interests," without clearly articulating its constitutional authority to do so.9
According to Lawrence, its holding is solely a creature of precedent. See
Lawrence, 539 U.S. at 564-66, 573-74, 578-79 (citing Griswold v. Connecticut,
381 U.S. 479
(1965); Roe v. Wade, 410 U.S. 113
(1973); Planned Parenthood of
Southeastern Pennsylvania v. Casey, 505 U.S. 833
(1992)). These substantive
due process precedents are troubling for two reasons.
First, through these precedents, the Court steadily has increased its own
constitutional authority and in doing so has eroded the constitutional authority
of the People to enact (and sustain) state legislation, see U.S. CONST. amend. X,
My concerns relate solely to those unenumerated rights that the Court has created
through its substantive due process jurisprudence))"adjudication where the Justices will only
approve laws where they believe that the end of the law, based on their personal values,
justifies an intrusion on individual liberty." 2 RONALD D. ROTUNDA & JOHN E. NOWAK,
TREATISE ON CONSTITUTIONAL LAW: SUBSTANCE AND PROCEDURE § 15.4, 789 (4th ed. 2008).
They do not include those substantive due process rights recognized in the Bill of Rights and
incorporated to the States. See ROTUNDA, supra, at § 15.6. Nor do I discuss cases decided
under the Equal Protection Clause, the Privileges and Immunities Clause, or procedural Due
Process because those cases are rooted in the text and the original purposes of the Fourteenth
Amendment. See ROTUNDA, supra, at §§ 14-15, 17-18.
[End Page 13]
and to amend the Constitution, see U.S. CONST. art. V. Early in our history, the
Court acknowledged that the People's constitutional authority is paramount:
That the people have an original right to establish, for their future
government, such principles as, in their opinion, shall most conduce
to their happiness, is the basis on which the whole American fabric
has been erected.
Marbury v. Madison, 5 U.S. 137
(1 Cranch 137), 176 (1803) (emphasis added).
Only recently has the Court gradually increased its own authority from
Griswold,10 to Casey,11 to Lawrence,12 at the expense of the People's authority.
And although the Court sought to cabin its authority in Glucksberg:
But we "ha[ve] always been reluctant to expand the concept of
substantive due process because guideposts for responsible
decisionmaking in this unchartered area are scarce and open-
ended." Collins v. City of Harker Heights Texas, 503 U.S. 115
(1992). By extending constitutional protection to an asserted right
or liberty interest, we, to a great extent, place the matter outside
the arena of public debate and legislative action. We must therefore
"exercise the utmost care whenever we are asked to break new
ground in this field," ibid., lest the liberty protected by the Due
Process Clause be subtly transformed into the policy preferences of
the Members of this Court. Moore v. City of East Cleveland, 431 U.S. 494
, 502 (1977) (plurality opinion).
"Without those peripheral rights, the specific rights [set forth in the Bill of Rights]
would be less secure. . . . [This observation] suggest[s] that specific guarantees in the Bill of
Rights have penumbras, formed by emanations from those guarantees that help give them life
and substance. . . . The present case, then, concerns a relationship lying within the zone of
privacy created by several constitutional guarantees." Griswold, 381 U.S. at 484-85.
"Due process has not been reduced to any formula; its content cannot be determined
by reference to any code. . . . [It is this outlook which has led the Court continually to perceive
distinctions in the imperative character of Constitutional provisions, since that character must
be discerned from a particular provision's larger context. And inasmuch as this context is not
one of words but of history and purposes,] the full scope of the liberty guaranteed by the Due
Process clause cannot be found in or limited by the precise terms of the specific guarantees
elsewhere provided in the Constitution." Casey, 505 U.S. at 848-49 (quoting Poe v. Ullman,
367 U.S. 497
, 542-43 (1961) (Harlan, J., dissenting)) (Casey omitted bracketed portion of Poe).
"History and tradition are the starting point but not in all cases the ending point of
the substantive due process inquiry." Lawrence, 539 U.S. at 572 (quoting County of
Sacramento v. Lewis, 523 U.S. 833
, 587 (1998) (Kennedy, J., concurring)).
[End Page 14]
521 U.S. at 720, that decision still assumes that the Court has the authority to
look outside the written Constitution to establish unenumerated substantive due
process rights, see id.13 Accepting this premise is to accept as constitutionally-
legitimate a constitutionally-enigmatic jurisprudence without constitutional
limits. Reliable is a perfect illustration.14
The second reason I find these precedents troubling is that the Court,
when it departs from the Constitution's text, tends to vacillate in identifying the
constitutional and theoretical underpinnings of the rights it creates, when the
Constitution's text and the principles underlying it should be steadfast. The
Court's abortion precedents illustrate this tendency well. In Roe, the Court held
that the right to privacy encompasses a woman's right to have an abortion. See
Roe, 410 U.S. at 152-54. But in Casey, the Court retreated from this holding
when a fractured Court, in a joint opinion, upheld Roe's "central holding" but
refused to defend Roe as resting on a sound interpretation of the Constitution.
Through this back-and-forth, pick-and-choose, what-will-work substantive due
process jurisprudence, the problems that inhere in a judicial philosophy that
proceeds untethered from the text of the Constitution become apparent: it is far
more akin to political debate than it is to the limited role of the judiciary in
interpreting the law.
The issue before us is not the choice but rather who chooses. When the
Although I do not agree that the Court has the authority to look outside the written
Constitution to create constitutionally-protected rights, I do agree with Glucksberg's
description of the risks and dangers inherent in this type of jurisprudence and the cautions the
Court must employ if it continues down this path.
Some may contend that self-restraint and reasoned judgment are adequate
limitations on the Court's exercise of its substantive due process powers. See Casey, 505 U.S.
at 849 ("The inescapable fact is that adjudication of substantive due process claims may call
upon the Court in interpreting the Constitution to exercise that same capacity which by
tradition courts always have exercised: reasoned judgment. Its boundaries are not susceptible
of expression as a simple rule."). The Constitution says otherwise: its limitations are based not
on self-restraint or reasoned judgment but rather on a clearly written demarcation of
constitutional powers among the three branches, the checks and balances that lie therein,
principles of federalism, and the People's right to "establish this Constitution."
[End Page 15]
judiciary ventures into the legislative realm, as the Court did in Lawrence and
as the Reliable majority has done here, codifying its members' policy preferences
and moral judgments as judicially-created rules of constitutional law, the courts
forget that "the people, not the courts, established the Constitution; it is a
document of self-determination, not judicial interpretation." Causeway Med.
Suite v. Ieyoub, 109 F.3d 1096
, 1115 (5th Cir. 1997) (Garza, J., specially
concurring). When it ventures into the legislative realm, the Court exceeds its
constitutionally-appointed role. See Armour Packing Co. v. United States, 209 U.S. 56
, 82 (1908) ("It is the province of the judiciary to enforce the laws
constitutionally enacted, not to make them to suit their own views of propriety
or justice."). And the Court instills confusion and doubt in their lower courts and
in the People.
The courts are the guardians of liberty. We must not forget, however, that
the liberty we safeguard belongs not to us but to the People. By using the
Fourteenth Amendment as a vehicle for creating unenumerated substantive due
process rights, the Court abrogates the People's right to establish the contours
of their basic liberties and arrogates that power to itself. The Reliable majority
has followed suit. Lawrence is neither the beginning nor the end of this drama.
Nor is Reliable. I fear that the end in this area of the law will be a separate
unwritten constitution, established solely by the judiciary. The assumption of such vast authority by the courts denies the People's constitutional authority to
make the moral and ontologically-sensitive decisions upon which substantive
due process rights should be founded. See U.S. CONST. arts. I, V, & amend. X.
Reliable takes us one step closer to that unfortunate denouement. I dissent.
[End Page 16]
JENNIFER W. ELROD, Circuit Judge, dissenting from the denial of rehearing
For two reasons, I agree with Chief Judge Jones and Judge Garza that the
Reliable opinion merited the court's reconsideration en banc. First, the opinion
was not compelled by Lawrence v. Texas, 539 U.S. 558
(2003), yet overruled sub silentio this court's prior controlling precedent, Red Bluff Drive-In, Inc. v. Vance,
a decision that held constitutional the same statute at issue in this case. 648 F.2d 1020
, 1026""28 (5th Cir. 1981). Consequently, the opinion runs afoul of our
rule that "one panel of this court cannot overrule the decision of another panel; such panel decisions may be overruled only by a subsequent decision of the
Supreme Court or by the Fifth Circuit sitting en banc." Lowrey v. Tex. A & M
Univ. Sys., 117 F.3d 242
, 247 (5th Cir. 1997). Second, the opinion creates a
circuit split. See Williams v. Att'y Gen. of Ala., 378 F.3d 1232
, 1236""38, 1250
(11th Cir. 2004) (affirming constitutionality of Alabama sexual devices statute
because Lawrence did not reach "the commercial distribution of sex toys"). I
[End Page 17]