75

A BRIEF LOOK AT THE CONSTITUTIONALITY OF

SEXUALLY ORIENTED BUSINESSES IN TEXAS

ROBERT S. MORALES

I. INTRODUCTION

In September 2008, a judge ordered The Penthouse Club in

Houston, Texas to shut down for a year for violating the city’s
sexually oriented business law and being found to be a public
nuisance. 1 The judge further ordered that The Penthouse Club could
never again open as a sexually oriented business. 2 The Penthouse
Club reopened in September 2009 when the judge’s order expired. 3
Prior to the closing, the establishment considered itself a bikini bar 4
and not a sexually oriented business since the entertainers wore full
bikini bottoms and latex covering on the nipples. However, the
entertainers did dance on a stage with a large, anchored pole 5 where
tips from the customers were solicited and private dances for
customers were performed and contact between the entertainer and

1
Robert Arnold, Reported Mob Boss Hiding in Houston, Click2Houston.com, Sep.
15, 2009, http://www.click2houston.com/news/20920113/detail.html.
2
Id.
3
Id.
4
Id.
5
THE PENTHOUSE CLUB, http://www.penthousehouston.net (last visited March 12,
2011).
 76

customer was expected. 6 When The Penthouse Club reopened, it did

so by marketing itself as a bikini bar with entertainers that wore latex
covering and full bikini bottoms. 7 And again, the entertainers danced
on stage and performed private dances for the customers. 8
The Penthouse Club is only one of the approximately 150
businesses in the city of Houston 9 that may be in violation of the
city’s sexually oriented business ordinance. 10 And along with these
businesses are the thousands of people they employ 11 who are also
subject to the city’s ordinances. And this is just Houston, Texas, and
just sexually oriented businesses featuring live entertainment. Indeed,
sexually oriented businesses are a multi-million dollar industry in
Texas 12 and thus critical to the State’s economy.
II. BACKGROUND INFORMATION

A sexually oriented business is a type of business that is

specially regulated by the state. It is defined in two different state
codes. According to the Business and Commerce Code, it is a
“nightclub, bar, restaurant, or similar commercial enterprise that
provides for an audience of two or more individuals live nude
entertainment or live nude performances and authorizes on-premises

6
This was especially true in the champagne rooms where the customer would
purchase a bottle of alcohol (usually champagne) at a marked-up price in return for
a private room with the exclusive company of an entertainer of his/her choice.
7
See supra note 2.
8
Id.
9
Matt Stiles, City Plans Crackdown On Some Sex Businesses: Venues Too Close To
'Sensitive' Sites Face Relocation Or Closure As A 1997 Law Gets Enforced, The
Houston Chronicle, April 16, 2007,
http://www.chron.com/disp/story.mpl/front/4717463.html.
10
HOUSTON, TEX., CODE OF ORDINANCES ch. 28, art. III, § 125 (1997), available at
http://library.municode.com/index.aspx.
11
See supra note 9. The Men’s Club alone employed over a 1,000 entertainers in
the year preceding the passing of the ordinance.
12
Id.
 77

consumption of alcoholic beverages.” 13 And according to the Local

Government Code, a sexually oriented business is a
sex parlor, nude studio, modeling studio, love parlor, adult bookstore,
adult movie theater, adult video arcade, adult movie arcade, adult
video store, adult motel, or other commercial enterprise the primary
business of which is the offering of a service or the selling, renting, or
exhibiting of devices or any other items intended to provide sexual
stimulation or sexual gratification to the customer. 14

Indeed, the Local Government Code is more encompassing

than the Business and Commerce Code which the former provides the
local governments with more authority to classify a particular
business as being sexually oriented. Also, the Local Government
Code does not define what nudity is while the Business and
Commerce Code does. Thus, local governments are free to
incorporate whatever definition of nudity that they deem necessary to
accomplish their goal of adequate regulation of sexually oriented
businesses since their grants of authority come from the Local
Government Code 15 and not the Business and Commerce Code.
Nonetheless, nudity is defined in the Business and Commerce Code
as “entirely unclothed; or clothed in a manner that leaves uncovered
or visible through less than fully opaque clothing any portion of the
breasts below the top of the areola of the breasts, if the person is
female, or any portion of the genitals or buttocks.” 16
The regulation of erotic dancing in sexually oriented
businesses can generally be attributed to Barnes v. Glen Theaters,
Inc. 17 In Barnes, 18 the Supreme Court held that a statute may regulate

13
TEX. BUS. & COM. CODE ANN. § 102.051(2) (Vernon 2009).
14
TEX. LOC. GOV’T CODE ANN. § 243.002 (Vernon 2009).
15
TEX. LOC. GOV’T CODE ANN. § 243.001 (Vernon 2009).
16
TEX. BUS. & COM. CODE ANN. § 102.051 (1) (Vernon 2009).
17
Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991).
18
Id.
 78

this kind of dancing as long as the statute passes the O’Brien Test. 19
The Barnes decision was reaffirmed nine years later in City of Erie v.
Pap’s A.M 20 while the authority to regulate sexually oriented
businesses in Texas has been found constitutional since 1982. 21
III. CONSTITUTIONAL LANGUAGE

“The Constitution is not an instrument for the government to restrain

the people, it is an instrument for the people to restrain the
government - lest it come to dominate our lives and interests.”

A) Freedom of expression
Despite some people’s repulsion towards sexually oriented
businesses, they are allowed to exist under the United States
Constitution. 22 In particular, sexually oriented businesses that feature
live entertainers have been found to be vessels for the form of
expression of nude or erotic dancing. 23 And, nude or erotic dancing
has been found to be a constitutionally protected form of expression
by both the Constitutions of Texas 24 and the United States. 25
“Unlikely though it may seem, the fate of First Amendment freedoms
is irrevocably connected to the ongoing struggle between purveyors
of adult entertainment and defenders of public decency.” 26 Indeed,

19
United States v. O'Brien, 391 U.S. 367 (1968). See infra note 41 and
accompanying text.
20
City of Erie v. Pap's A. M., 529 U.S. 277, 301 (2000).
21
Memet v. State, 642 S.W. 2d 518, 522-23 (Tex. App. 1982).
22
Barnes, 501 U.S. at 565-66.
23
Id.
24
Memet, 642 S.W. 2d at 522-23.
25
Barnes, 501 U.S. at 565-66.
26
David L. Hudson Jr., Adult Entertainment and the Secondary-effects Doctrine:
How a zoning regulation may affect First Amendment freedoms, VOL. 2, NO. 1
FIRST REPORTS 1, May 2002.
 79

“the adult-entertainment industry tests Americans’ commitment to

freedom of expression.” 27 As evidenced by the sheer volume of
litigation and resulting case law, erotic expression is both in public
demand and not well liked by government entities. It is this false
dichotomy of the American populous that has set the stage for the
long, combative, and at times, illogical litigation associated with the
regulation of sexually oriented businesses in the context of freedom
of expression.
The U.S. Constitution
According to the United States Constitution, “Congress shall
make no law respecting an establishment of religion, or prohibiting
the free exercise thereof; or abridging the freedom of speech, or of the
press; or the right of the people peaceably to assemble, and to petition
the Government for a redress of grievances.” 28 However, the
Supreme Court has made it clear that “speech” is a legal term with a
special definition. Indeed, the Supreme Court has found that speech
is more than just “the expression or communication of thoughts or
opinions in spoken words” or “something spoken or uttered;” 29 the
Supreme Court has found that speech encompasses expressive
conduct 30 and does not include obscenity. 31
Originally, obscenity was found whenever “the dominate
theme of the material taken as a whole appeals to a prurient interest in
sex, the material was patently offensive because it affronts
contemporary community standards relating to the description or
representation of sexual matters, and the material is utterly without
redeeming social value.” 32 Of course, the burden of proving the
material to be utterly without redeeming social value proved to be

27
Id. at 27.
28
U.S. CONST. amend. I.
29
BLACK’S LAW DICTIONARY 1168 (8th ed. 2005).
30
Barnes, 501 U.S. at 566.
31
Roth v. United States, 354 U.S. 476, 484-85 (1957).
32
Memoirs v. Massachusetts, 383 U.S. 413, 418 (1966).
 80

“virtually impossible.” 33 Thus, the bar was lowered to where a

Victorian prosecutor must only prove that “the work, taken as a
whole, lacks serious literary, artistic, political, or scientific value”
instead of having to prove the material to be “utterly without social
value.” 34 Thus, the material must now have a serious social value as
opposed to just having some social value. Indeed, works of serious
social value receive First Amendment protection “regardless of
whether the government or a majority of the people approve of the
ideas these works represent.” 35 Of course, social value is assigned by
the majority of the people which in turn elects the government. Thus,
works of serious social value only receive First Amendment
protection if the government or a majority of the people approve of
the ideas these works represent.
As mentioned above, the Supreme Court has found that “nude
dancing of the kind sought to be performed here is expressive conduct
within the outer perimeters of the First Amendment, though we view
it as only marginally so.” 36 Even though the Supreme Court found
that this type of expressive conduct is one of the lowest forms of
expressive conduct, it is still expressive conduct and thus falls under
the freedom of speech protections guaranteed by the First
Amendment; and a “law directed at the communicative nature of
conduct must, like a law directed at speech itself, be justified by the
substantial showing of need that the First Amendment requires.” 37
Thus, for a statute that regulates erotic dancing to be held
constitutional, it must pass the four-prong intermediate scrutiny test
established by O’Brien. 38

33
Miller v. California, 413 U.S. 15, 22 (1973).
34
Id. at 24.
35
Id. at 34.
36
Barnes v. Glen Theatre, Inc. 501 U.S. 560, 566 (U.S. 1991).
37
Texas v. Johnson, 491 U.S. 397, 406 (1989) (quoting Cmty. for Creative Non-
Violence v. Watt, 703 F.2d 586, 622 (D.C. Cir. 1983) (Scalia J., dissenting)).
38
Fantasy Ranch, Inc. v. City of Arlington, 459 F.3d 546, 555 (5th Cir. 2006).
 81

According to O’Brien, “a public nudity ordinance that

incidentally impacts protected expression should be upheld if” 39 it
meets the following conditions:
(1) if it is within the constitutional power of the government;

(2) it furthers an important or substantial government interest;

(3) the governmental interest is unrelated to the suppression of free

expression; and

(4) the incidental restriction on first amendment freedoms is no

greater than is essential to the furtherance of that interest. 40

These requirements are easily met by enacting governments

when the governmental interest is the relief of secondary effects. 41
Secondary effects usually include prostitution, assault, drug dealing, 42
and the lowering of property values. 43 However, these secondary
effects must be related to the actual regulation. 44
One common method of restricting sexually oriented business
is with laws that regulate alcohol consumption and sales. 45 Indeed, it
is so common that the courts have developed a test to “conclude
[whether] a liquor regulation prohibiting the sale or consumption of
alcohol on the premises of adult entertainment establishments is
constitutional.” 46 According to Ben’s Bar, a restriction on the sale

39
Id.
40
Id.
41
Id. at 555-56.
42
Id. at 557.
43
See Smartt v. City of Laredo, 239 S.W. 3d 869, 872 (Tex. App. 2007).
44
Williams v. City of Fort Worth, 782 S.W. 2d 290, 297 (Tex. App. 1989).
45
Ben’s Bar, Inc. v. Vill. of Somerset, 316 F.3d 702, 705 (7th Cir. 2003).
46
See Id. at 722.
 82

and/or consumption of alcohol in a sexually oriented business is

constitutional if:
(1) the State is regulating pursuant to a legitimate
governmental power,
(2) the regulation does not completely prohibit adult
entertainment,
(3) the regulation is aimed not at the suppression of
expression, but rather at combating the negative
secondary effects caused by adult entertainment
establishments, and
(4) the regulation is designed to serve a substantial
government interest, narrowly tailored, and
(a) reasonable alternative avenues of
communication remain available, or
(b) alternatively, the regulation furthers
an important or substantial government
interest and the restriction on expressive
conduct is no greater than is essential in
furtherance of that interest. 47
Although at first glance this test may seem to favor
unconstitutionality, in reality most of the elements have already been
adjudicated in favor of the government before any litigation has taken
place. Indeed, the government’s “regulation of alcohol sales and
consumption in inappropriate locations is clearly within its general
police powers.” 48 And inherent to the regulation of alcohol
consumption is the fact that the scope of the regulation lies in the
availability of alcohol and not the per se regulation of expressive
conduct. 49 Thus, the Court has found that such a regulation does not
violate the First Amendment as the regulation does not prohibit a

47
Id.
48
Id.(emphasis added).
49
Id. at 723.
 83

person’s right to indulge in alcohol or enjoy nude or semi-nude

dancing, it only prevents them from doing both at the same time and
place. 50 However, the Court was not without empathy towards the
affected businesses as they observed that the:
[D]eprivation of alcohol does not prevent the observer
from witnessing nude or semi-nude dancing, or the
dancer from conveying an erotic message. Perhaps a
sober patron will find the performance less tantalizing,
and the dancer might therefore feel less appreciated
(not necessarily from the reduction in ogling and cat
calls, but certainly from any decrease in the amount of
tips she might otherwise receive. 51
The Texas Constitution
According to the Texas Constitution, [E]very person shall be at
liberty to speak, write or publish his opinions on any subject, being
responsible for the abuse of that privilege; and no law shall ever be
passed curtailing the liberty of speech or of the press. In prosecutions
for the publication of papers, investigating the conduct of officers, or
men in public capacity, or when the matter published is proper for
public information, the truth thereof may be given in evidence. And
in all indictments for libels, the jury shall have the right to determine
the law and the facts, under the direction of the court, as in other
cases. 52
Although, the protection of free speech in the Texas
Constitution seems more comprehensive than the protections found in
the U.S. Constitution, the Texas Courts of Appeals has not found this
to be the case. 53 Indeed, the “Texas Supreme Court has held that free
speech rights under the Texas Constitution may be broader than those

50
Id. at 728.
51
Id.
52
TEX. CONST. art. I, § 8.
53
Kaczmarek v. State, 986 S.W. 2d 287, 291 (Tex. App. 1999).
 84

provided by the Federal Constitution in certain cases.” 54

Unfortunately, the Court has explicitly held that any broader Texas
free speech protections do not extend to exotic dancing. 55 “The basis
for these holdings is that there is less interest in protecting material on
the borderline between pornography and artistic expression than in
free dissemination of the ideas of social and political significance.” 56
Indeed, the last case that provided any serious analysis of whether the
Texas Constitution proffers greater free speech protections than does
the U.S. Constitution was the 1995 Woodall case. 57 “Since Woodall
was written, neither the Texas Supreme Court nor lower state courts
have issued any rulings undermining its conclusion.” 58
In Woodall, the Adult Businesses argued that the Davenport 59
case had extended the greater free speech protection found in the
Texas Constitution to sexually oriented business. 60 Thus, they argued
that the ordinance must be analyzed under a strict scrutiny test under
the Texas Constitution instead of the intermediate scrutiny test under
the U.S. Constitution. 61 If an ordinance’s constitutionality is tested
under strict scrutiny, then the government would have to prove that
the ordinance protects a compelling government interest and uses the
least restrictive means of protecting this interest. 62 However, the
Court held that Davenport “appl[ied] only to prior restraints and not

54
Woodall v. City of El Paso, 49 F.3d 1120, 1127 (5th Cir. 1995) (emphasis added)
(Generally political protest speech).
55
Kaczmarek, 986 S.W.2d at 291.
56
Id. (quoting 2300, Inc. v. City of Arlington, 888 S.W.2d 123, 127 n.3 (Tex. App.
1994)).
57
N.W. Enterprises, Inc. v. City of Houston, 352 F.3d 162, 177 (5th Cir. 2003).
58
Id.
59
Davenport v. Garcia, 834 S.W.2d 4, 11-17 (Tex.1992).
60
Woodall, 49 F.3d at 1127.
61
Id.
62
Id.
 85

to time, place and manner restrictions in land use restrictions of

sexually oriented businesses.” 63 Finding no case on point post
Davenport to support the argument by the Adult Businesses, the
Court relied on the prior case Lindsay 64 to hold that the ordinance
must only protect a substantial government interest without
unreasonably limiting alternative avenues of communication. 65 In
holding that the Texas Constitution requires the same standard as
under the U.S. Constitution, the Court expressed its bias against the
Adult Businesses by stating that “[i]f the intermediate Texas courts
are wrong about Texas law in this area, we are content to wait until
the Texas Supreme Court corrects their error.” 66
Accordingly, under Texas law, “a property owner has no
constitutionally protected right to operate a sexually oriented
business.” 67 However, the erotic message being conveyed within the
sexually oriented business is constitutionally protected and “the
government may not prohibit expression simply because it disagrees
with its message” regardless of “the particular mode in which one
chooses to express an idea.” 68 This is especially significant
considering the substantial bias against sexually oriented businesses
in Texas. From the onset, the “evidentiary burden for a State
attempting to justify a substantial governmental interest is very
light.” 69 However, the courts do require some evidence to justify a
substantial governmental interest. 70 Thus, when “there simply is no
evidence,” then “the State has not met the minimal evidentiary burden

63
Id.
64
Lindsay v. Papageorgiou, 751 S.W.2d 544, 550 (Tex. App. 1988).
65
Woodall, 49 F.3d at 1127-28.
66
Id. at 28.
67
Hang On III, Inc. v. Gregg County, 893 S.W. 2d 724, 726 (Tex. App. 1995).
68
Texas v. Johnson, 491 U.S. 397, 416 (1989).
69
Illusions-Dallas Private Club, Inc. v. Steen, 482 F.3d 299, 313 (5th Cir. 2007).
70
Id. at 312.
 86

placed upon it.” 71 Indeed, the State’s burden is so low that the only
way that it cannot meet its burden is by presenting absolutely no
evidence at all; the “standard of constitutional scrutiny. . . is simply
whether [the ordinance] addressed secondary effects of adult speech,
as demonstrated by the legislative record submitted by the City.” 72
Accordingly, “the City need not [even] demonstrate that the City
Council actually relied upon evidence of negative secondary effects
when it enacted [the ordinance].” 73 In fact, the courts have made it
clear how little evidence they need from the government by noting
how unfair it would be to the government “[t]o require the legislature
to show evidence of negative secondary effects and of the new
regulations efficacy requires too much of the City.” 74 Indeed, the
ordinances’ expected effectiveness may be proven by common sense
alone; there is no need to prove “empirically[,] that SOB ordinances
will successfully reduce crime.” 75 Thus, the “City is entitled to
experiment with distance regulations” 76 whether it is to the detriment
of sexually oriented businesses or not. And given the disposition of
the courts toward sexually oriented businesses, the experimentation
with distance regulations is probably expected to be to the detriment
of sexually oriented businesses.
B) Equal Protection Clause
“We hold these truths to be self-evident, that all men are
created equal, that they are endowed by their Creator with certain
unalienable Rights, that among these are Life, Liberty and the pursuit
of Happiness.” 77 Although this statement was made as a justification
for the creation of the United States, it wasn’t a truthful statement.

71
Id. at 313.
72
N.W. Enterprises, Inc. v. City of Houston, 352 F.3d 162, 174 (5th Cir. 2003).
73
Id. at 175.
74
Id.
75
Id. at 180.
76
Id. at 181.
77
The Declaration of Independence para. 2 (U.S. 1776).
 87

Had it been, then slavery wouldn’t have been tolerated in the United
States. Thus, not all men were created equal. And if all men weren’t
considered to be equal, then certainly women were excluded from the
creation equality fabrication. Certainly, men and women are
physically different and apparently these differences are not equal in
the eyes of the law. This is especially true when it comes to the chest
area. Indeed, “[l]aws that target female toplessness include zoning
ordinances, public exposure or lewdness ordinances and statues,
ordinances regulating sexually-oriented businesses, law aimed at nude
sunbathing, regulations of business and liquor licenses, and obscenity
statutes.” 78 These laws highlight the inequality of men and women
by showing that a male’s viewpoint of the female form wins out to the
female viewpoint to her own body. 79 “Specifically, it
demonstrates that courts view the breast from a distinctly
heterosexual male perspective, and from this perspective they
conclude there is a real difference between men and women. While
courts identify this difference as biological, their reasoning reveals
the difference is socially imposed.” 80
The U.S. Constitution
According to the U.S. Constitution, “equality of rights under
the law shall not be denied or abridged by the United States or by any
State on account of sex.” 81 Actually, that is how the U.S.
Constitution would have read had the Equal Rights Amendment been
adopted. As it was not, women do not receive equal rights under the
law, but only equal protection under the law. “It is clear that gender
has never been rejected as an impermissible classification in all
instances.” 82 Thus, we have the lesser standard of equal protection

78
Virginia F. Milstead, Forbidding Female Toplessness: Why “Real Difference”
Jurisprudence Lacks “Support” and What Can Be Done About It, 36 U. TOL. L.
REV. 273, 276-77 (2005).
79
Id. at 282-83.
80
Id. at 279.
81
Equal Rights Amendment, H.R.J. Res. 208, 92 Cong. (1972).
82
Rostker v. Goldberg, 453 U.S. 57, 69 n.7 (1981).
 88

and that is granted by the 14th Amendment to the U.S. Constitution

which states:
All persons born or naturalized in the United States,
and subject to the jurisdiction thereof, are citizens of
the United States and of the State wherein they reside.
No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the
United States; nor shall any State deprive any person
of life, liberty, or property, without due process of law;
nor deny to any person within its jurisdiction the equal
protection of the laws. 83
Indeed, laws regulating sexually oriented businesses are
subject to equal protection and due process 84 challenges. The courts
have found that administrative hearings are subject to procedural due
process or any such adverse ruling is subject to reversal. 85 Moreover,
sections of sexually oriented business ordinances have been held to
violate the equal rights provisions. 86
For a local ordinance to survive a gender-based discrimination
challenge, it “must serve important governmental objectives and must
be substantially related to [the] achievement of those objectives.” 87
This is commonly known as the intermediate scrutiny standard of
review. 88 Here, the courts have made it clear that “the protection of
public health and safety represents an important function of state and
local governments.” 89 Consequently, the prevention of secondary
83
U.S. CONST. amend. XIV, §1
84
U.S. CONST. amend. XIV, §1
85
City of Arlington v. Centerfolds, 232 S.W.3d 238, 249 (Tex. App. 2007).
86
Williams v. City of Fort Worth, 782 S.W.2d 290, 298 (Tex. App. 1989).
87
Craig v. Boren, 429 U.S. 190, 197 (1976).
88
WIKIPEDIA, Intermediate scrutiny,
http://en.wikipedia.org/wiki/Intermediate_scrutiny (as of Oct. 11, 2010, 01:23
GMT).
89
Craig, 429 U.S. at 199-200.
 89

effects has also been recognized as an important government

objective that can withstand gender-based discrimination. 90 This is
true notwithstanding the reality that the evidence offered by local
governments is generally based on weak statistics and “[i]t is
unrealistic to expect . . . members of the judiciary . . . to be well
versed in the rigors of experimental or statistical technique.” 91
Indeed, “proving broad sociological propositions by statistics is a
dubious business, and one that inevitably is in tension with the
normative philosophy that underlies the Equal Protection Clause.” 92
However, even if the courts are willing to accept dubious statistics in
regards to sexually oriented business regulation, they also rely on
statistics that conclude that there is no evidence of secondary effects
to strike down these regulations. 93 Thus, if sexually oriented
businesses can show that “local studies show no evidence of negative
secondary effects connected with [their] clubs,” then they may
triumph in their cause. 94 In reality, sexually oriented businesses may
want to go further and actually prove that the neighborhood actually
improved while a sexually oriented business was located in the
community as the businesses did in Flanigan’s Enterprises, Inc. 95
There, the sexually oriented businesses showed “unequivocally that
property values in neighborhoods adjoining the Clubs have increased
during the time the Clubs have been in existence, and that
surrounding buildings show[ed] no signs of blight, or lack of physical
maintenance.” 96 Moreover, it was also proven that there was “greater
reported crime connected with establishments that served alcohol but
did not feature adult entertainment” took place. 97

90
Buzzetti v. City of New York, 140 F.3d 134, 142-143 (2nd Cir. 1998).
91
Craig, 429 U.S. at 204.
92
Id.
93
Flanigan’s Enterprises, Inc. v. Fulton County, 242 F.3d 976, 979 (11th Cir. 2001).
94
Id. at 978.
95
Id. at 986.
96
Id.
97
Id.
 90

Nonetheless, the Court has actually stated that the government must
have an exceedingly persuasive justification to survive a gender-based
equal protection claim. 98 In United States v. Virginia, the State was
trying to argue that it could exclude female students from an all-male
public military institution. 99 Acknowledging “a long and unfortunate
history of sex discrimination,” 100 the Court noted that the Equal
Protection Clause requires that women be given an “equal opportunity
to aspire, achieve, participate in and contribute to society based on
their individual talents and capacities.” 101 Thus, “[t]he burden of
justification is demanding and it rests entirely on the State” to prove
that the purpose behind the gender-based discrimination is
exceedingly persuasive. 102 Thus, the reasoning must be “genuine, not
hypothesized or invented post hoc in response to litigation. And it
must not rely on overbroad generalizations about the different talents,
capacities, or preferences of males and females.” 103 However, the
Court also recognized that there were “inherent differences” between
males and females and society has “come to appreciate [these
inherent differences], [they] remain cause for celebration, but not for
denigration of the members of either sex or for artificial constraints
on an individual's opportunity.” 104
Now, the exceedingly persuasive justification standard may
seem like a heightened level of scrutiny, but the Court has found that
the difference between the effect of seeing male breasts and seeing
female breasts is a “self-evident truth about the human condition” and
thus not required to be proven in order to justify gender-based
discrimination in an ordinance. 105 Thus, the courts have found that
98
Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982).
99
United States v. Virginia, 518 U.S. 515, 519 (1996).
100
Frontiero v. Richardson, 411 U.S. 677, 684 (1973).
101
Virginia, 518 U.S. at 532.
102
Id. at 533.
103
Id.
104
Id.
105
Hang On, Inc. v. City of Arlington, 65 F.3d 1248, 1257 (5th Cir. 1995).
 91

“in our culture the public display of female breasts will have far
different secondary effects than the public display of male breasts.” 106
Indeed, “the public reactions to the exhibition of the female breast
and the male breast are highly different.” 107 The “public exposure of
the female breast is rare under the conventions of our society, and
almost invariably conveys sexual overtones.” 108 As such, “numerous
courts have recognized that the societal impacts associated with
female toplessness are legitimate bases for regulation.” 109 Likewise,
the government must prove “only that regulation of female breasts is
substantially related to an important governmental interest, not that
the exposure of male breasts is so related.” 110 Therefore, these
ordinances will be upheld as “[s]tatutes that fairly can be seen as
responding to clear sexual differences between men and women are
among those laws that courts have upheld, despite the gender-based
classification contained in them.” 111 Thus, the courts have
established that gender-based discrimination related to sexually
oriented businesses is constitutional under the heightened
intermediate scrutiny framework.
The Texas Constitution
According to the Texas Constitution, “equality under the law
shall not be denied or abridged because of sex, race, color, creed, or
national origin.” 112 The Texas Equal Rights Amendment was
“designed expressly to provide protection which supplements the
federal guarantees of equal treatment.” 113 Accordingly, “the Equal

106
Buzzetti v. City of New York, 140 F.3d 134, 138 (2nd Cir. 1998).
107
Id. at 143.
108
Id.
109
Id. at 142.
110
SDJ, Inc. v. Houston, 837 F.2d 1268, 1279 (5th Cir. 1988).
111
Buzzetti, 140 F.3d at 141.
112
TEX. CONST. art. I, § 3a
113
Bell v. Low Income Women of Tex., 95 S.W.3d 253, 257 (Tex. 2002).
 92

Rights Amendment is more extensive and provides more specific

protection than . . . the United States [Constitution].” 114 Thus, it
“elevates sex to a suspect classification, and is therefore afforded
maximum constitutional protection.” 115 As such, an ordinance must
have a compelling state interest to be constitutional. 116 And, “[o]nce
it has been determined that the law discriminates against one sex
clearly on the basis of gender, the discrimination is allowed only
when the proponent of the discrimination can prove that there is no
other manner to protect the state's compelling interest.” 117 For
example, a regulation that is worded so as to where “a male may
dance topless within the restricted area while a female cannot, a male
may model topless while a female cannot, and the breast of a male
may be pictured or described whereas the breast of a female
cannot” 118 must have a compelling state interest to severely restrict
the female body while providing a liberating forum for the male form.
Texas has, however, found that sexually oriented business
ordinances are subject to the Texas Equal Rights Amendment. 119 The
Equal Rights Amendment reads that “[e]quality under the law shall
not be denied or abridged because of sex, race, color, creed, or
national origin.” 120 When a violation of the Equal Rights
Amendment is alleged, the courts have analyzed the challenged law
under a three-step process. 121 First, they look at “whether equality
under the law has been denied.” 122 Second, they look at “whether

114
In Interest of McLean, 725 S.W.2d 696, 698 (Tex. 1987).
115
Maloy v. City of Lewisville, 848 S.W.2d 380, 384 (Tex. App. 1993).
116
Id.
117
Id.
118
Id.
119
Williams v. City of Fort Worth, 782 S.W.2d 290, 296 (Tex. App. 1989).
120
TEX. CONST. art. I, § 3a.
121
Bell v. Low Income Women of Tex., 95 S.W.3d 253, 257 (Tex. 2002).
122
Id.
 93

equality was denied because of a person's membership in a protected

class of sex.” 123 If so, the law will only be upheld as constitutional if
it is “narrowly tailored to serve a compelling governmental
interest.” 124 However, some courts have disagreed with those courts
that have held “that the Texas Equal Rights Amendment was intended
to apply to an ordinance prohibiting female topless dancing in
residential neighborhoods.” 125 Indeed, these courts have even gone as
far as to chastise their more protective judicial brethren by denying
“that a constitutional provision enacted to insure equality under the
law to all Texans, regardless of gender, race, creed, or national origin,
should be utilized to strike down an ordinance limiting the locations
where female topless dancing is permitted.” 126
In Williams, the sexually oriented business ordinance of Fort
Worth was found to discriminate against females since clubs that
featured female topless dancers were subject to geographical
restrictions while those featuring male topless dancers were not. 127
Here, the court found that “there was no evidence that exposure of the
breasts of male performers in bars which regularly feature such
entertainment is not considered sexually oriented.” 128 Thus, the Court
found that it “is not authorized…to take judicial notice of the concept
that the breasts of female topless dancers, unlike their male
counterparts, are commonly associated with sexual arousal.” 129 Thus,
the court held that
“[b]ecause the ordinance discriminates against women
on its face in its definition of nudity, and because the
proponents of the ordinance have produced no proof

123
Id.
124
Id.
125
Schleuter v. City of Fort Worth, 947 S.W.2d 920, 925 (Tex. App. 1997).
126
Id.
127
Williams v. City of Fort Worth, 782 S.W.2d 290, 297 (Tex. App. 1989).
128
Id. at 297.
129
Id.
 94

that they cannot protect their interest in preventing

secondary neighborhood effects without such
discrimination … the “State of Nudity” definition,
relating to female breasts, is null and void in its
application to adult nightclubs and bars.” 130
However, the courts have shown that the government has to
overcome a low threshold of proof to satisfy its burden. The courts
have found that evidence that “(1) physiological and sexual
distinctions exist between the male and female breast; (2) female
breasts differ both internally and externally from male breasts; and (3)
the female breast, but not the male breast, is a mammary gland” is
sufficient for the government to justify its discrimination based on
gender. 131 Therefore, the government can meet its burden by simply
presenting expert testimony that the difference between male and
female breasts is consistent with what is medically known about
human sexual responses. 132 Thus, the courts have made it clear that
there are real physical differences between men and women and these
differences are certainly not equal. These physical differences create
different psychological responses and those responses that men
produce must be controlled by the regulation of women. Inescapably,
it is far too difficult to regulate men in this capacity, so Texas has
imposed society’s burden on women as society has historically done
throughout our nation’s history.
IV. LOCAL ORDINANCES

According to the Texas Local Government Code, 133 local

governments are authorized to regulate sexually oriented businesses
to remedy the “decline of residential and business neighborhoods and
the growth of criminal activity.” 134 More specifically, “[a]
130
Id. at 298.
131
MJR’s Fare of Dallas, Inc. v. City of Dallas, 792 S.W. 2d 569, 575 (Tex. App.
1990).
132
Hang On, Inc. v. City of Arlington, 65 F.3d 1248, 1256 (5th Cir. 1995).
133
TEX. LOC. GOV’T CODE ANN. § 243.001(b) (Vernon 2009).
134
TEX. LOC. GOV’T CODE ANN. § 243.001(a) (Vernon 2009).
 95

municipality by ordinance or a county by order of the commissioners

court may adopt regulations regarding sexually oriented businesses as
the municipality or county considers necessary to promote the public
health, safety, or welfare.” 135 However, this seemingly unbridled
delegation of authority over sexually oriented businesses is limited to
location and density restrictions. 136 And even here, the restrictions
are generally confined to licensing and permit requirements. 137 Also,
the county is expressly prohibited from regulating a sexually oriented
business located within the corporate limits of a municipality. 138
Moreover, a further restriction is placed on the local governments.
They may not set the punishments for violations of their ordinances as
these have already been set by the Code. 139 As such, “home rule
cities may not pass a municipal ordinance that conflicts with the
constitution or general laws of the state.” 140 However, a violation of
a sexually oriented business ordinance may be enjoined in district
court 141 and/or a person may be charged with a Class A
misdemeanor. 142 Actually, the use of these two different remedies is
essentially a tool for the prosecutor as a Class A misdemeanor must
be heard in a county court since the district court lacks jurisdiction
over Class A misdemeanors. 143 Thus, the prosecutor is given both the
county court and district court system to obtain a favorable
disposition.

135
TEX. LOC. GOV’T CODE ANN. § 243.003(a) (Vernon 2009).
136
TEX. LOC. GOV’T CODE ANN. § 243.006 (Vernon 2009).
137
TEX. LOC. GOV’T CODE ANN. § 243.007 (Vernon 2009).
138
TEX. LOC. GOV’T CODE ANN. § 243.003(c) (Vernon 2009).
139
TEX. LOC. GOV’T CODE ANN. § 243.010 (Vernon 2009).
140
Robinson v. City of Longview, 936 S.W.2d 413, 416 (Tex. App. 1996).
141
TEX. LOC. GOV’T CODE ANN. § 243.010(a) (Vernon 2009); TEX. BUS. & COM.
CODE ANN. § 102.004 (Vernon 2009).
142
TEX. LOC. GOV’T CODE ANN. § 243.010(b) (Vernon 2009); TEX. BUS. & COM.
CODE ANN. § 102.005 (Vernon 2009).
143
Flores v. State, 33 S.W. 3d 907, 915 (Tex. App. 2007).
 96

Houston City Ordinance

The City of Houston, Texas, defines an enterprise as an “adult
bookstore, adult cabaret, adult encounter parlor, adult lounge, adult
modeling studio, adult movie theatre.” 144 The city restricts an
enterprise from being “located within 1,500 feet of any school,
church, public park, or licensed day-care center; 1,000 feet of any
other enterprise for which there is a permit; or within a 1,500 feet
radius of an area that is more than 75% residential in character.” 145
The entertainers of an enterprise are also regulated by city
ordinance. Entertainers are prohibited from “touch[ing] a customer or
the clothing of a customer while engaging in entertainment or while
exposing any specified anatomical areas or engaging in any specified
sexual activities.” 146 They are further prohibited from “approach[ing]
closer than three feet to any customer while engaging in
entertainment or while exposing any specified anatomical areas or
engaging in any specified sexual activities.” 147 And lastly,
entertainers are prohibited from “engag[ing] in entertainment or
[exposing] any specified anatomical areas or engag[ing] in any
specified sexual activities in the presence of a customer in any
separate area … which entry or access is blocked or obscured by any
door, curtain or other barrier separating entry.” 148
ARLINGTON CITY ORDINANCE

The City of Arlington, Texas, defines a sexually oriented

business as a “Sexually Oriented Arcade, Sexually Oriented
Bookstore or Sexually Oriented Video Store, Sexually Oriented
Cabaret, Sexually Oriented Motel, Sexually Oriented Theater,
Sexually Oriented Motion Picture Theater, Escort Agency, Nude

144
HOUSTON, TEX., CODE OF ORDINANCES ch. 28, art. III, § 121 (1997), available at
http://library.municode.com/index.aspx.
145
HOUSTON, TEX., CODE OF ORDINANCES ch. 28, art. III, § 125 (1997).
146
HOUSTON, TEX., CODE OF ORDINANCES ch. 28, art. VIII, § 258(a) (1997).
147
HOUSTON, TEX., CODE OF ORDINANCES ch. 28, art. VIII, § 258(b) (1997).
148
HOUSTON, TEX., CODE OF ORDINANCES ch. 28, art. VIII, § 258(c) (1997).
 97

Model Business or Sexual Encounter Center.” 149 The city restricts a

sexually oriented business from operating “within 1,000 feet of a
church; a public or private elementary or secondary school; a
boundary of a residential district; a boundary of the Entertainment
District; a licensed day care center; a public park; a residential
property; or another sexually oriented business.” 150 However, this
geographical restriction can be amended to 500 feet if “there is a
controlled access highway between the district boundary/property line
and the Sexually Oriented Business.” 151
The employees of a Sexually Oriented Cabaret must also
adhere to city ordinances. An employee “while appearing in a state of
nudity, commits an offense if the employee touches a customer or the
clothing of a customer.” 152 An employee is further prohibited from
“permit[ing] any customer access to an area of the premises not
visible from the manager's station or not visible by a walk through of
the premises without entering a private, exclusive, closed, curtained,
or otherwise screened area, excluding restrooms.” 153 Actually, the
city has also enacted regulations against customers as well.
Customers are prohibited from “touch[ing] an employee appearing in
a state of nudity or the clothing of an employee appearing in a state of
nudity.” 154

149
ARLINGTON, TEX., CODE OF ORDINANCES, Sexually Oriented Business art. II
(2007), available at
http://www.arlingtontx.gov/citysecretary/pdf/codeofordinances/SOBChapter.pdf.
150
ARLINGTON, TEX., CODE OF ORDINANCES, Sexually Oriented Business art. III, §
01(B)-(C) (2007).
151
ARLINGTON, TEX., CODE OF ORDINANCES, Sexually Oriented Business art. III, §
01(B) (2007).
152
ARLINGTON, TEX., CODE OF ORDINANCES, Sexually Oriented Business art. V, §
01(A) (2007).
153
ARLINGTON, TEX., CODE OF ORDINANCES, Sexually Oriented Business art. V, §
01(C) (2007).
154
ARLINGTON, TEX., CODE OF ORDINANCES, Sexually Oriented Business art. V, §
01(B) (2007).
 98

LAREDO CITY ORDINANCE

The City of Laredo, Texas, defines a sexually oriented

business as “an adult arcade, adult book store or adult video store,
adult cabaret, adult motel, adult motion picture theater, adult theater,
escort agency, nude model studio or sexual encounter center.” 155 The
city restricts a sexually oriented business from operating “within
1,000 feet of a church; a public or private elementary or secondary
school; a boundary of any residential district; a public park; a
residential area, or within 1,500 of another sexually oriented
business.” 156
The city also places restrictions on the entertainers
themselves. An entertainer is prohibited from “conduct[ing] any
dance performance, or exhibition, in or about the nonstage area of the
"adult cabaret" unless that dance performer, or exhibition, is
performed at a distance of no less than four (4) feet of the patron or
patrons for whom the entertainment is being provided.” 157
CONCLUSION

Although the cities of Houston, Arlington, and Laredo

encompass different geographical areas regions, they have
remarkably similar views when it comes to the regulation of sexually
oriented businesses. 158 They feel that sexually oriented businesses
should be segregated from places of worship, places where children
are generally found, and places where people live by buffers of 1,000
to 1,500 feet. 159 And they are so harmful, in fact, that they must even
be segregated from each other. 160 Indeed, they are even singularly

155
LAREDO, TEX., CODE OF ORDINANCES, ch. 18A, art. I, § 2 (2002), available at
http://library.municode.com/index.aspx.
156
LAREDO, TEX., CODE OF ORDINANCES, ch. 18A, art. III, § 45 (2002).
157
LAREDO, TEX., CODE OF ORDINANCES, ch. 18A, art. III, § 52 (2002).
158
See supra notes 146-59.
159
Id.
160
Id.
 99

minded when it comes to how they regulate the interactions between

the entertainer and customer. 161 They are in unison when it comes to
the belief that entertainers should not have physical contact with their
paying customers. 162 They also agree that the best way to prevent
human contact is with a “no-touch rule” with a “buffer zone” of three
to four feet in between two consenting, contracting adults. 163 Thus,
even though Texas has delegated its authority to regulate sexually
oriented businesses to the local governments, it seems that
municipalities are still in accord when it comes to theories of
regulations. 164 Indeed, “the frame of mind in the local legislatures
seems to be exerted to prevent the federal constitution from having
any good effect.” 165
The so-called secondary effects 166 of sexually oriented
businesses that do not involve freedom of expression issues per se are
considered an important governmental interest that must be protected.
Indeed, the evils of prostitution, assaults, and drug dealing 167 should
be mitigated whenever possible. Therefore, local governments should
be allowed to pass ordinances pertaining to all of the avatars of these
evils. Indeed, local governments should also be allowed to regulate
military installations and university systems as these are well known
havens of prostitution, assaults, and drug-dealings. Thus, physical
contact between service members and college students should be
strictly regulated to prevent these evils. 168 In fact, these societal ills
should be criminalized directly. Prostitution should be made illegal in

161
Id.
162
Id.
163
See supra notes 149 and 159.
164
TEX. LOC. GOV’T CODE ANN. § 243.001 (Vernon 2009).
165
As made famous by Henry Knox.
166
Fantasy Ranch, Inc. v. City of Arlington, 459 F.3d 546, 555 (5th Cir. 2006).
167
Id. at 557.
168
Curtailing the sexual activity of university students and service members will
certainly be difficult if not impossible in practice.
 100

Texas as should the act of assaulting another individual and the

distribution of illegal drugs. Perhaps if these secondary effects were
made primarily illegal, then the need for ridiculous city ordinances
regulating such things as the minimum distance between an
entertainer and a paying customer 169 would become unnecessary. Of
course, these ordinances regulating sexually oriented businesses are
so irrational that they encourage scofflaws 170 as illustrated by The
Penthouse Club example. 171 Thus, the actual secondary effect of
sexually oriented business ordinances is a disregard of the law. 172 A
person that walks into an enterprise 173 in Houston, Texas, will see
plenty of sights, but adherence to the three foot rule 174 will certainly
not be one of those. Therefore, regulations of sexually oriented
businesses should not focus on the thinly veiled regulation of the
actual conduct that is associated with the expressive form of erotic
dancing, but should focus on reasonable time and place 175 restrictions.
If not, the government runs the danger of over-regulation which may
lead to the opposite effect than they seek. Indeed, “[t]he more
prohibitions you have, the less virtuous people will be.” 176
Even in a traditionally conservative state such as Texas,
sexually oriented businesses are big business. 177 Indeed, “[t]here is a
distinct market for up-close, nude, alcohol-enhanced table dances.
Law-abiding customers envision their liberty as encompassing the

169
See supra notes 149-159.
170
Fantasy Ranch, 459 F.3d at 553.
171
See supra note 2.
172
Fantasy Ranch, 459 F.3d at 553.
173
HOUSTON, TEX., CODE OF ORDINANCES ch. 28, art. III, § 121 (1997).
174
See supra note 149.
175
City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47 (1986).
176
LAO TZU, TAO TE CHING 57 (Stephen Mitchell, trans., Harper Perennial 2006)
(1988).
177
See supra note 12.
 101

right to spend money in the erotic entertainment economy.” 178 The

contents housed in sexually oriented businesses have been found to be
valid 179 and thus sexually oriented businesses are likely to continue to
exist. Therefore, the laws that regulate sexually oriented businesses
must recognize this fact and be implemented accordingly. The
regulations must not only be reasonable, but above all practical. If
not, the laws will simply be ignored. Indeed, Texas has valid
governmental interests in protecting against the detriment of “public
health, safety, and welfare,” 180 but it still needs to make reasonable
concessions into accomplishing its objectives lest the laws become
unjust. Lex Inuista Non Est Lex. 181

178
DFW Vending v. Jefferson County, 991 F. Supp. 578, 586 (E.D. Tex. 1997).
179
See supra notes 23-26.
180
TEX. LOC. GOV’T CODE ANN. § 243.001 (Vernon 2009).
181
As made famous by Augustine and translated as “an unjust law is no law at all”.
102