The opinion
ELROD, Circuit Judge,
dissenting from the denial of rehearing en banc:
For two reasons, I agree with Chief Judge Jones and Judge Garza that the Reliable opinion merited the court’s reconsideration en banc. First, the opinion was not compelled by Lawrence v. Texas, 539 U.S. 558 , 123 S.Ct. 2472 , 156 L.Ed.2d 508 (2003), yet overruled sub silentio this court’s prior controlling precedent, Red Bluff Drive-In, Inc. v. Vance, a decision that held constitutional the same statute at issue in this case. 648 F.2d 1020 , 1026-28 (5th Cir.1981). Consequently, the opinion runs afoul of our rule that “one panel of this court cannot overrule the decision of another panel; such panel decisions may be overruled only by a subsequent decision of the Supreme Court or by the Fifth Circuit sitting en banc.” Lowrey v. Tex. A & M Univ. Sys., 117 F.3d 242 , 247 (5th Cir.1997). Second, the opinion creates a circuit split. See Williams v. Att’y Gen. of Ala., 378 F.3d 1232, 1236-38, 1250 (11th Cir.2004) (affirming constitutionality of Alabama sexual devices statute because Lawrence did not reach “the commercial distribution of sex toys”). I respectfully dissent.