Another Texas statute may be winding its way to the United States Supreme Court.

Yesterday, in Reliable Consultants, Inc. v. Earle, a panel of the Fifth Circuit struck down the Texas statute regulating “obscene devices” ((The two relevant statutes are Texas Penal Code §43.21(7) and Texas Penal Code §43.23. )) on the ground that it violated the same substantive-due-process principle that animated Lawrence v. Texas. The vote was 2-1 on that question, with Judge Reavley and Judge Prado in the majority and Judge Barksdale dissenting.

There now appears to be a direct split between the Fifth Circuit and the Eleventh Circuit on whether Lawrence invalidates this class of laws. (( I suppose it cuts against certiorari that there are only a handful of states with statutes precisely like these, but reading Lawrence to undermine statutes grounded in public morality may have unforeseen effects — such as the 2005 district court decision (later reversed by the Third Circuit) that had used Lawrence to hold the federal obscenity statute unconstitutional. ))