Texas's attorney general, Greg Abbott, has decided to appeal the decision.
"... the panel majority's decision could invite substantative-due-process challenges to other, previously uncontroversial criminal prohibitions... It is undoubtedly true that some people believe that engaging in consensual adult incest or bigamy would enhance their sexual experiences. ... Despite the failure of those activities to threaten their participants' physical safety, Lawrence {v. Texas, the Supreme Court case that struck down anti-sodomy laws} should not be expanded to invalidate laws prohibiting them. Anti-incest and anti-bigamy laws are validly grounded in States' legitimate interest in protecting public morals, as are the prohibitions contained in the statute challenged here."
In other words, Abbott believes that if you can strike down a ban on masturbation toys, then bans on adult consensual incest or polyamory are also unconstitutional.
Guess what? He's right.
The courts would have to make some severe legal contortions to say that the right to privacy includes the right to consensual sex between two adults of whatever sex, or between one adult and a piece of rubber or plastic... but excludes the right to consensual sex between MORE than two people. Incest they might manage, on the grounds of the dangers of inbreeding, but I doubt it- so long as those involved are consenting adults not in a position to coerce consent.
On one point, though, Abbott is absolutely wrong. The state does not have a legitimate interest in "protecting public morals." This concept holds over from over a century ago, when in the interest of "public morals" contraception was banned and the publication of books teaching contraception was a jailing offense. It was unjust then, and it's unjust now.
Just because something is offensive does not mean people don't have a right to do it.
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