Substantive Due Process and a Comparison of Approaches to Sexual Liberty

By William Council

Over 150 years ago, Congress passed and the states ratified the
Fourteenth Amendment, banning states from passing or enforcing laws based
on unconstitutional classifications and protecting persons in the United
States from adjudication without due process. For over one hundred years,
however, courts and commentators have been fighting over the Fourteenth
Amendment’s Due Process Clause’s controversial protections of substantive
rights. The U.S. Supreme Court has applied inconsistent methodologies to
these substantive due process claims, attempting to walk a tightrope between
the Court’s power to subjectively announce new rights as “fundamental” and
the traditional role of the states’ plenary police powers.

The Court’s ability to announce new subjective rights has morphed and
evolved over time—both in terms of the rights elevated, ranging from
economic rights to contraception, child-rearing, and, most recently,
marriage equality, and the methodology used to elevate those rights. Against
this backdrop, there currently is a circuit split regarding the status of state
laws criminalizing the sale of sex toys. According to some, these devices are
an essential element of sexual liberty and their criminalization represents
paradigmatic government overreach. Conversely, supporters of state laws
criminalizing sex toys believe their regulation falls within the states’
traditional authority to legislate questions of moral judgment.

This Note examines the tension between these two conceptions of sex toy
regulation and criminalization and the broader ramifications for substantive
due process methodology. Since choosing whether or not to use sex toys is a
consequential decision implicating sexual autonomy and privacy, state laws
that burden their use unconstitutionally step into the protected sphere of
liberty that the Fourteenth Amendment protects.