In 1985, the Texas Court of Criminal Appeals upheld the Texas legislature's ban on "obscene devices," which, one hopes, is the name of a really good band somewhere.

The legislature had banned not just the sale of these items, but also their advertising and, most awkwardly, "lending." Eesh.

The Appeals Court had declared that the people of its state had "no constitutional right to 'stimulate ... another's genitals with an object designed or marketed as useful primarily for that purpose." The state (and the legislature) did not outlaw possession—it did, however, concur that the sale and advertisement of the sort of things people stick in other people and themselves should be illegal. And now you know why so many different types of products are advertised as "massagers."

This week—Happy Valentine's Day!—the U.S. Court of Appeals for the Fifth Circuit, in Reliable Consultants v. Earle, has declared that there shall be sex toys for everyone!

"The State is morally opposed to a certain type of consensual private intimate conduct," said the decision; but in light of Lawrence v. Texas and the 14th Amendment, "Whatever one might think or believe about the use of these devices, government interference with their personal and private use violates the Constitution."

That's just crazy communist talk! And other states don't agree.

Alabama, Virginia, and Mississippi all outlaw obscene devices. Kansas, Louisiana, Georgia and Colorado all had similar laws; each was undone by the courts.

But in Alabama, the state law survived a challenge in the 11th Circuit. And as one legal blogger put it, "A clear circuit split on a major constitutional question such as substantive due process is an express lane to Supreme Court review."

Dildos in the Supreme Court! New York Times Supreme Court correspondent Linda Greenhouse will faint. So what will our august Supreme Court—if it can still be called that in light of its apparent inability to think and judge as evidenced by Bush v. Gore—make of the legality of dildo sales and advertisements?

Chief Justice John Roberts
The good-looking-in-that-odd-John Edwards-way justice, the former Rehnquist clerk and onetime associate counsel to Ronald Reagan was installed in 2005. He often sides with Scalia and Thomas—he shares just some of their "originalism" and their extreme distaste from considering foreign law as any sort of guidance, for one thing. Also he has become the ringleader of the Pack of 5, in which he leads the voting gang of Scalia, Thomas, Kennedy, and that little monster Alito.

Which way does he swing on the 14th Amendment? Most relevant may be that he agrees with Griswold v. Connecticut, in which the Court decided (in 1965) that there is a basis of privacy under the Constitution and that, therefore, contraceptives may be sold. (That was under the rubric of a right to "marital privacy.") A fight that resonates to this day was begun there: one concurrence was penned that said the 14th Amendment supported privacy rights; a dissent was filed with the exact opposite interpretation. Does Roberts sign on to general idea that privacy rights "emanate" from the Constitution in general, or to the 14th in particular? Signs point to the idea that he believes privacy rights originate in the 1st and even 3rd Amendments.

Only he and his local sex toy shop know for sure—but here we may go again, half a century later!

John Paul Stevens
In Bowers v. Hardwick, which in 1986 upheld the Georgia laws that criminalized oral and anal doing-of-it, Stevens wrote in his own dissent that "the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice."

He was way ahead of things. Hang in there, old man, and you might get to revisit this crazy radical philosophy!

Antonin Scalia
The insufferable Scalia wrote one of the worst dissents in the history of the Supreme Court for Lawrence v. Texas; he dismissed the Supreme Court majority's "unheard-of form of rational-basis review" in its declaration of sexual conduct as "an exercise of liberty." He went back to quote Bowers v. Hardwick, then being rightly undone: "'The law,' it said, 'is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed," and said that America is now at risk of losing its state laws against animal sex and incest. (Oddly, no such carnage has been forthcoming!)

But. You can bet your favorite 18-inch doubleheader that this is the very challenge that Scalia has been waiting for so as to say "See? I told you the end times were near!"

In the dissent to Lawrence, not only did he use the phrase "so-called homosexual agenda," and "culture war," his worst bit of logic was this: "Men and women, heterosexuals and homosexuals, are all subject to its prohibition of deviate sexual intercourse with someone of the same sex." (Amusingly, Scalia, unlike other Justices, will not use the word "gay.") You see: All people are proscribed from having sex with someone of the same sex, not just gay people.

It's hard to believe that this is his thinking. It's hard to imagine what sort of blather a sexy toy case would bring forth from this foaming idiot.

Anthony Kennedy
Though he sides with the gang of five at times, Ronald Reagan's boy Kennedy is still technically a swinger—a swing voter, that is! (Hi-o!) He's a big 14th Amendmentist. He wrote Lawrence v. Texas. And yet he joined in with the gang of Bush v. Gore; how he managed to think his way into that is inconceivable.

Kennedy is also the most worldly of the Justices, citing international law as context in decisions (something that makes conservatives livid). And you know what that means: They LOVE a dildo in Europe.

David Souter
Poor David Souter, who (claims Jeffrey Toobin, at least) nearly quit the Supreme Court after Bush v. Gore. Once upon a time, he was a voting buddy of Scalia's. Souter is a 14th Amendment stickler, seeing in it protection for classes that other members of the Court do not necessarily find.

In Board of Education of Kiryas Joel Village School District v. Grumet, in 1994, Souter (in the majority) wrote that "government should not prefer one religion to another, or religion to irreligion."

In Boy Scouts of America v. Dale, in 2000, the Court (split 5 to 4, an occurrence that would become more and more regular) decided that the Boy Scouts of America could not be forced to admit an admitted homosexual. (This was an issue of freedom of association, you see.) Souter joined a dissent, and penned one of his own, which included the language "we are cognizant of this laudable decline in stereotypical thinking on homosexuality."

Just as Scalia always says, it's a hop and a skip from gays to farm animals and sex toys!

Clarence Thomas
Oh, Clarence Thomas. For one thing, he wrote in a dissent to Lawrence v. Texas that there is "no general right of privacy" in the Constitution. Given that he was accused by a former employee of describing pornographic films in the workplace, you'd think he'd reconsider that. (To his credit, he also fired an employee for calling a coworker a "faggot." Though, you know: He worked at the EEOC. If you don't fire someone for that, well, it's curtains for you.)

Thomas wrote a lone (and actually quite moving) dissent in Virginia v. Black in 2003, which struck down a Virginia law that forbade cross-burning. He said something interesting: "In every culture, certain things acquire meaning well beyond what outsiders can comprehend."

Will he feel this way about butt-plugs? Signs point to no.

Ruth Bader Ginsburg
Do you really think the only woman on the Court would rule against dildos?

Stephen Breyer
Scalia's enemy is another Clinton appointee, as is Ginsburg. It's not necessarily due process and privacy rights that might guide the nice guy of the court's judgment here; it's the freedom to do business. (Although, as Jeffrey Toobin pointed out in a profile of Breyer a few years back, he dissented in Zelman v. Simmons-Harris in 2002, writing against voucher systems in Ohio; his reasoning, under the First Amendment, was that paying for religious education would give rise to "social conflict.")

In the '70s, he was counsel to the Judiciary Committee, under Edward Kennedy. He was a strong proponent of deregulation, and wrote what sounds like a truly exciting book, Breaking the Vicious Cycle: Towards Effective Risk and Regulation.

Surely he can come down on the right of a business to do business: Just as with the airlines and the railways, the efficiency of the dildo market to deliver its commodities is at stake!

Samuel Alito
The new guy is still, despite the hue and cry at his nomination (the ACLU for only the third time in its history opposed his nomination), an unknown quantity. So far, liberal fears about his voting have not been fulfilled.

But what we do know is that he hates The Sopranos, as it defames not only Italian-Americans but New Jerseyans. Can a man who hates The Sopranos endorse instruments of orifice pleasure? IT SEEMS UNLIKELY. (Related: How did two Italian-American guys from Trenton get on the Supreme Court? That is also unlikely!)

Predictions:
Oddly enough, despite the growing conservatism of the court, it's hard to make the case against both the right of humans to do as they wish (barring animals and cousins) in their bedrooms and against the rights of business to advertise and conduct activities legal in many states. We wouldn't put more than 20 bucks on it should this unlikely case ever come to the court, but we say it goes 6 to 3 in favor of dildos.