The Supreme Court is giving some sex toy shops a bad vibe.

On Monday the court refused to consider whether a Texas law prohibiting the sale, marketing or dissemination of an "obscene device" is unconstitutional. An "obscene device" is a "a device including a dildo or artificial vagina, designed or marketed as useful primarily for the stimulation of human genital organs."

A man who worked in an El Paso adult book store had sued the state after he was arrested for showing two undercover officers a penis-shaped device and telling the female officer it would give her an orgasm.

The law may sound archaic, but Georgia, Mississippi and Alabama have similar bans.

Alabama's has been circulating through the courts since its passage in 1998. The Supreme Court declined to hear the case last year, but it is back in lower courts. (The law is not being enforced because of a judge's injunction that was issued after adult store owners filed suit).

South Carolina discussed banning the sale of sex toys during its legislative session earlier this year. The bill never left committee, and the two-year session ended in June, so it is officially dead.

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THE LAW

Of course, there are sex shops in those Southern states.

But most sellers refer to sex toys as novelties or health or therapeutic items. In Texas, medical and educational uses of the toys, such as demonstrating how to put on a condom, are exempt from the law.

Ignacio Sergio Acosta, a clerk at Trixx adult bookstore, didn't know to use that spin, says his attorney, Roger Jon Diamond.

"He was honest," says Diamond. "He told them what the purpose was. He didn't know by doing that he would be incriminating himself. He didn't know to say, 'Look you can use this as an art object. Put it on your mantle.'"

Acosta was arrested and spent 12 hours in jail. A lower court dismissed the criminal complaint against him, but an appeals court reinstated it, saying the Texas law does not infringe on private sexual behavior. After all, Texas law does not prohibit someone from owning a sex toy or using one.

But Diamond scoffs at that notion.

"You can't buy it. You cannot give it as a gift. If you bought a dildo for example in California, you could not give it to someone in Texas," he says. "So Texas is making it impractical to have one. If you can't acquire it. You can't use it. We're arguing for sexual privacy, which we claim is protected by the due process clause of the 14th Amendment."

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THE DEBATE

Some Christians argue that using a sex toy is wrong. If someone is using a vibrator, that's basically masturbation, which goes against the Bible, says the Rev. Dave White, a minister with Harvest USA in Philadelphia.

"The Scripture makes it clear that sexuality is a relational thing," says White. "God designed for it to exist in a married relationship. The whole thrust of sex is that it is supposed to be a selfless service. You are not supposed to be focused on yourself. Obviously with masturbation, you are failing on both accounts."

Others say restricting the devices hurts personal freedom and relationships. Lisa Lawless, founder of holisticwisdom.com, an online sexual health store, believes sex toys enhance marriages.

"It's frustrating for people who want to feel free to explore their sexuality in a non-harmful way," says Lawless. "I think it's interesting that lots of states allow guns. Texas is fine with allowing the NRA to have a lot of leeway, but something as simple as a sex toy which brings someone pleasure and not pain is not allowed."

Lawless says the laws have also created this fear among people who sell sexual toys.

She mentioned Joanne Webb, the Texas housewife who was arrested for selling a vibrator at a private party to undercover officers who were posing as a married couple. Webb was a sales consultant for Passion Parties, a company that markets lotions and sexual toys at a private gathering similar to Tupperware parties. Her case was eventually dismissed.

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THE SUPREME COURT

You can't read too much into the Supreme Court's decision, says Roger Pilon, vice-president for legal affairs at the Cato Institute. He says the Supreme Court chooses around 80 cases, out of more than 9,000 petitions. A law banning sex toys is not that high on the radar screen.

"This is the kind of case that would generate a lot of prurient interest and a lot of laughter," he says. "But it isn't really central to the legal life of the nation. It involves the right of people to sell things that other people might not want sold, and therefore involves liberty more than privacy."

But Diamond disagrees.

He uses the case of Lawrence vs. Texas to make his argument. The case stemmed from two men who were arrested for having sex in their home, a violation of the Homosexual Conduct law. In 2003, the Supreme Court ruled that states do not have the right to ban consensual sex between adults in their own home.

"If the U.S. Supreme Court said it's OK for two persons of the same gender to have sex with each other," he asks, "what's wrong with one person having sex with himself?"

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Megan Scott is an asap reporter.

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