Oh Ted Cruz, Ted Cruz, Ted Cruz. The Senator from Texas has been working hard this campaign season to shore up his conservative bona fides, including a memoir that talks about some of his more notable cases from when he was Solicitor General for Texas. But he skips a really interesting — nay — prurient case involving the legality of selling and using sex toys. Mother Jones ran a detailed analysis of it today and woo boy, is the internet going nuts!
See, back in 2004, it was illegal in Texas to sell or promote obscene devices (which was widely accepted to mean dildos and stuff, not obscenity like promoting someone like Ted Cruz to a position of influence in the legal structure of the state). A couple of stores in Austin challenged the law on 14th Amendment grounds, saying that people had a privacy-based right to get their jollies with whatever toys rock their worlds.
Ted, acting in his capacity as the guy who defends Texas laws against challenges, denied this. Yes. Ted Cruz, Presidential hopeful, once attempted to make a legal case that “there is no substantive-due-process right to stimulate one's genitals for non-medical purposes unrelated to procreation or outside of an interpersonal relationship.” The sex toy stores contended that that right was valid under a previous ruling on homosexual relations, because sex is sex, and it’s no one’s business if you do it with a consenting partner (or a consenting Fleshlight).
You gotta fight! For your right! To jaaaacccckkkk off!
Sorry, where was I? Oh, right: "the state’s argument hinged on the idea that, while people could certainly use sex toys privately in their own homes, there was no legal right for them to do so and allowing the sale of “obscene devices” would be a moral failure of the state. Cruz’s brief alleges that Texas had a ”police-power interest" in "discouraging prurient interests in sexual gratification, combating the commercial sale of sex, and protecting minors," and that there was a "government" interest in "discouraging... autonomous sex."
The Court of Appeals didn’t buy it. The decision came back against Cruz and Texas saying “The case is not about public sex. It is not about controlling commerce in sex. It is about controlling what people do in the privacy of their own homes, because the State is morally opposed to a certain type of consensual private intimate conduct. This is an insufficient justification for the statute after Lawrence...Whatever one might think or believe about the use of these devices, government interference with their personal and private use violates the Constitution.”
After that, Texas tried to get a hearing in front of a larger panel of judges but that was denied. They opted not to pursue a Supreme Court case on the matter, probably because Cruz didn’t have the stones to talk about sex toys with Ruth Bader Ginsburg.
Now, we all do have to understand that, as Solicitor General, Cruz was obligated to defend laws when they were challenged. He might personally have no vendetta against sex toys or the people who sell them. And on Twitter today, Craig Mazin, a college classmate of Cruz’s said this: “Ted Cruz thinks people don’t have the right to ‘stimulate their genitals’. I was his college roommate. This would be a new belief of his.”
So, maybe Ted was just doing his job when he tried to keep sex toys out of his state. Maybe he loves a butt plug as much as the next conservative politician. If he does, he at least can rest easy knowing his privacy in the matter is legally upheld.
