updated 10/2/2006 11:27:22 AM ET 2006-10-02T15:27:22

The Supreme Court refused Monday to consider whether a Texas law making it a crime to promote sex toys shaped like sexual organs is unconstitutional.

An adult bookstore employee in El Paso, Texas, sued the state after his arrest for showing two undercover officers a device shaped like a penis and telling the female officer the device would arouse and gratify her.

The employee, Ignacio Sergio Acosta, says a Texas law outlawing the manufacture, marketing or dissemination of an “obscene device” including those shaped like sex organs is unconstitutional because it prevents individuals from using such devices, violating their right to sexual privacy.

Colorado, Kansas and Louisiana have held such laws unconstitutional, while Georgia, Mississippi and Texas have upheld them, said Acosta’s lawyer in urging the Supreme Court to take the case.

An El Paso County court granted Acosta’s motion to dismiss a criminal complaint against him, but an appeals court reinstated it, saying the Texas law did not infringe on private sexual behavior.

The bar against promoting obscene devices has been found in other court cases not to infringe on a right to use obscene devices at home, the court of appeals for the Eighth District of Texas ruled.

Acosta also said the Texas law should be examined in light of a U.S. Supreme Court decision that struck down a Texas criminal law banning gay sex as an unconstitutional invasion of privacy.

The case is Ignacio Sergio Acosta v. state of Texas, 05-1574.

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