Ted Cruz

Ted Cruz, Sex Toys, and the Constitution

Ted Cruz thinks a sex toy ban is stupid. That doesn't mean he thinks it's unconstitutional.

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Gage Skidmore / Flickr.com

In 2007 Texas Solicitor General Ted Cruz urged the U.S. Court of Appeals for the 5th Circuit to reject a constitutional challenge to the state's ban on the sale of sex toys. "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," Cruz and his office argued. The 5th Circuit disagreed and struck down the sex toy ban.

Yesterday on CNN, Cruz was asked about that case. "I spent five and a half years as the solicitor general in Texas. I worked for the attorney general. The attorney general's job is to defend the laws passed by the Texas legislature," he told host Dana Bash.

"One of those laws was a law restricting the sale of sex toys. A stupid law. Listen, I am one of the most libertarian members of the Senate. I think it is idiotic….I am saying that consenting adults should be able to do whatever they want in their bedrooms."

Do those comments mean that Cruz now thinks that Texas took the wrong legal position in the case? Does he think that the 5th Circuit got it right when it struck down the sex toy ban? Not necessarily.

The underlying question in the case was whether federal courts can use the Due Process Clause of the 14th Amendment—which says that states may not deprive any person of life, liberty, or property without due process of law—to invalidate a duly enacted state regulation.

That underlying question has been the driving force behind some of the biggest cases in American constitutional law. In 1905, for example, the Supreme Court was asked whether a New York law forbidding bakery employees from working more than 10 hours a day or 60 hours a week violated the Due Process Clause. The Court ruled that it did and struck down the offending provision in Lochner v. New York.

Likewise, in 1965 the Supreme Court was asked whether a Connecticut law that forbid the distribution of birth control devices to married couples violated the Due Process Clause of the 14th Amendment. The Court ruled that it did and struck down the offending provision in Griswold v. Connecticut.

Which brings us back to Ted Cruz. Two years ago—long after he stopped being professionally obliged to defend the laws of Texas—Cruz derided both Lochner and Griswold as "judicial activism," saying they demonstrated the Supreme Court's "long descent into lawlessness" and its "imperial" misuse of the 14th Amendment. So if Cruz believes that the states have the lawful power to forbid bakery employees from working long hours, and if he believes that the states have the lawful power to prohibit the distribution of birth control devices to married couples, why wouldn't he also believe that the states have the lawful power to outlaw the sale of sex toys?

It's nice to learn that Cruz personally believes that "consenting adults should be able to do whatever they want in their bedrooms." But Cruz also seems to think that state and local governments have broad powers to prevent consenting adults from buying sex toys for their personal use in the privacy of those bedrooms.

One last point: When a lawyer or a judge calls a law "stupid," don't assume that person means that the law is unconstitutional and should be invalidated by the courts. During Elena Kagan's 2010 Senate confirmation hearings, for example, Sen. Tom Coburn (R-Okla.) asked the Supreme Court nominee whether she thought Congress possessed the constitutional power to force every American to "eat three vegetables and three fruits every day."

"Sounds like a dumb law," Kagan replied. She then explained why that did not make it an unconstitutional law.

Ted Cruz appears to be using the same rhetorical approach when it comes to his position on sex toys.

Related: Why Lochner isn't a dirty word.

NEXT: 'I'm Appalled,' Says Source of Phony Number Used to Justify Harsh Sex Offender Laws

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  1. “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,” Cruz and his office argued.

    At least he’s okay with dildoing/getting dildoed by someone else, apparently.

    1. Well, the didn’t call them “marital aids” for no reason.

      1. Killer fact: while people have been putting objects into orifices for as long as objects and orifices have existed, a lot of modern sex toy technology came from Victorian-era treatments for the common ladies’ complaint of “hysteria.” Since hysteria was thought to originate in the vajay, doctors treated it by stimulating the vajay with a hand or a jet of water until the lady stopped being hysterical – which actually worked, because it’s hard to be stressed out after an orgasm. However, doctors were getting carpal tunnel from all the ladies coming to get their hysteria treatments, so vibrators had to be invented.

        1. I’m making over $12k a month working part time. I kept hearing other people tell me how much money they can make online so I decided to look into it. Well, it was all true and has totally changed my life. This is what I do,…Go this web and start your work… Good luck.. http://www.startonlinejob.com

  2. Wait. I was assured earlier today that Cruz is one of our Top. Men. in the Senate.

    1. Apparently, Ted Cruz said some rather libertarian shit about the economy and tax reform in the past couple of days but fuck that noise, we *need* to here twitter wants to talk about a near-decade-old Texas dildo case (that was struck down).

      1. Cruz is libertarian to the extent his pretty standard GOP views happen to intersect. He’s more socon than anything.

        1. Cruz is libertarian to the extent his pretty standard GOP views happen to intersect. He’s more socon than anything.

          Cruz has been talking about cutting taxes, simplifying the tax code, and reducing banking/financial regulation. Reason is running stories about a view he didn’t necessary hold about sex toys a decade go and was struck down.

          Who’s advocating the libertarian position and who’s being a hyper-puritanical cultural purist? Cruz is an opportunistic libertarian, Reason seems to be an opportunistic socon/neo-puritan (not to mention that our high-profile alternatives to Cruz vary between principled socialists and opportunistic centrists).

          On what tree of woe would Cruz have to prostrate himself in order to purge this ‘sin’? If I were him, especially considering Gary Johnson and Rand Paul’s showing, I’d be saying ‘fuck that noise’ too.

          1. So we shouldn’t talk about the interesting implications of this recent bit of news, for fear that Ted Cruz will no longer opportunistically placate us.

            1. So we shouldn’t talk about the interesting implications of this recent bit of news, for fear that Ted Cruz will no longer opportunistically placate us.

              There are no interesting implications, it’s not a recent bit of news, and Reason already ran one story on it (actually several on the 2007 case). If I ignored your false assertions and then presumed Reason were trying to curry some favor with Ted Cruz this might make some sort of sense. However, even then, they’ve decided to forego the usual, broad libertarian base (topically) and do their damnedest to out stupid socon the stupid socon.

              1. Dude, Reason dupes and trips and quads on subjects all the time. You aren’t new here, you know this. Why you trippin?

                Here’s the thing. Stupid socons make stupid socon laws. As we have been instructed, stupid laws are not unconstitutional. They remain stupid.

              2. The news is the funny interview he gave that got some play on the Internet, the implication is about substantive due process (kinda Root’s thing) and how following the Constitution does not guarantee good law. Obvious and well-trod points to us, but not to everyone who might read this blog.

                Don’t know what your socon comments are about.

                1. The interview got some play because it, in combination with the porn tweet, highlighted his hypocrisy. You can’t see that? His hypocrisy on his well established social conservative postures? Please tell you aren’t blind to this. I’m being a puritan here. I just don’t trust people who lie for a living. Cruz has clearly succumbed to that moral hazard, willingly.

                  1. FFS! I’m NOT being a puritan here…not without dinner.

        2. I’m from Texas and have lived here my entire life, and while I don’t particularly like Cruz he’s not the worst politician out there. That said, he voted to table the repeal of the AUMF which seems like a far more relevant critique of him at this point. That’s one thing I’m very unhappy with him over.

          1. That said, he voted to table the repeal of the AUMF which seems like a far more relevant critique of him at this point. That’s one thing I’m very unhappy with him over.

            These two-sentences are more valuable and more libertarian than a second (it’s actually 3rd or 4th) Ted Cruz dildo article. Fucking Reason.

            1. Yeah, there is a whole lot of truth when people point out that more than a few Reason writers are heavily involved in social signaling over covering actual news at this point.

              I don’t really give a flying fuck about what Ted Cruz may or may not have thought about dildo’s a decade ago when he was literally employed to do exactly what he did.

              Lets talk about what he did yesterday, since last time I checked timeliness is one of the pillars of a valuable news story.

                1. Nobody is truly a libertarian. Well except for the anarchists, apparently.

                  However, Cruz one of the top ten most libertarian people in congress. Not a high bar, but I can think of about 625 people more deserving of negative coverage by Reason.

              1. I just wanted to follow up with this list of who voted how on the AUMF:

                Votes to Table Discussion of the AUMF

                Notice how many Democrats voted No on tabling the discussion? Notice the names of those Democratic senators? Hell, Feinstein wanted to continue talking about it. Egads. Maybe because of Trump?

            2. Is bashing Reason your main goal here? I’m down with that.

              Reason! Your web site sucks! Fucking threads!

  3. It’s nice to learn that Cruz personally believes that “consenting adults should be able to do whatever they want in their bedrooms.” But Cruz also seems to think that state and local governments have broad powers to prevent consenting adults from buying sex toys for their personal use in the privacy of those bedrooms.

    …OR he thinks, barring clearly unconstitutional laws, all laws deserve a hearing in court in the case of challenge and somebody has to defend the law. That was his job.

    One last point: When a lawyer or a judge calls a law “stupid,” don’t assume that person means that the law is unconstitutional and should be invalidated by the courts.

    Duh. Plenty of stupid laws are quite Constitutional.

    1. OR he thinks, barring clearly unconstitutional laws, all laws deserve a hearing in court in the case of challenge and somebody has to defend the law. That was his job.

      How about if the state passes a law requiring Christian bakers to make gay wedding cakes? Would he defend that law because it deserves a hearing in court and someone has to defend it?

      1. Or gay marriage? Right? Hmm? Huh? Yeah.

      2. How about if the state passes a law requiring Christian bakers to make gay wedding cakes? Would he defend that law because it deserves a hearing in court and someone has to defend it?

        I believe he would. Anybody remotely professional would. We know Holder would not, but he is very much the exception.

        1. Is it uncommon for AGs to abandon defense of a law in court? I don’t think it is. Whether it is ethical for them to do so? Most AGs are politicians first, ambulance chasers second. Ethicists?

    2. You know who else were just doing their jobs?

      1. The idiot legislators who passed the laws he felt he had to defend.

  4. Cruz derided both Lochner and Griswold as “judicial activism,” saying they demonstrated the Supreme Court’s “long descent into lawlessness” and its “imperial” misuse of the 14th Amendment.

    Much libertarian.

  5. The entire premise of this article is idiotic. It’s like arguing that defense lawyers support murder since they have to defend murderers.

    1. Well, maybe if the lawyers were making a bizarre excuse for the right of their client to commit murder. It does expose a man who claims to value liberty from time to time as just another scumbag politician. But we all know that anyway.

      1. How does that invalidate his claim to being libertarian?

        1. The State has no interest in my genitals other than those that arise from various popular mythologies. Defending a restriction of my rights, based purely on religious dogma, is the opposite of defending liberty.

          1. The state has no more interest in the hours I choose to work, whether I choose to buy health insurance, or what wage I choose to work for. Yet, somehow, their interference in these matters is treated as legitimate, while regulating the products of the sex toy industry is treated as an affront to all that is good and holy.

            Picking and choosing what elements of freedom are “worthy” is a surefire path to seeing all of our liberty cast aside.

            1. Right you are, but this molehill is made out of sex toys, so let’s make the most of it!

            2. their interference in these matters is treated as legitimate

              By some people, but not by many here. And interference with dildos is treated as legitimate by some people too. I’m not sure what your point is.

              1. I’m not sure what your point is.

                My point is that the judiciary has granted the government wide-ranging authority to ignore the Due Process clause whenever it suits the will of the judiciary. Lochner is pretty much dead letter, yet without Lochner, Griswold is laughable. As I suggest below, I think both Lochner and Griswold are fine decisions. But, burying one while insisting the other is limitless makes no sense.

                1. The big problem is what the definition of “due process” is.
                  But that is just a part of the problem with the horrible 14th amendment, written in the highly emotional time following a recent military struggle, that cost hundreds of thousands of American lives and many more horrendous injuries. Overall reading of it shows it to be inserting punishment for the states and individuals, who supported the Confederacy, into our Supreme Law of the Land.
                  It should never have been passed and has resulted in some of the worst judicial decisions, that have torn the American experiment asunder.
                  To make it worse, activist Supreme Court justices have added the qualifier of “substantive”, which is just another way of saying “not really” when it comes to “due process”.
                  Congress needs to take the bit in the teeth and do what the amendment allows; “to enforce, by appropriate legislation, the provisions of this article”. In other words clarify the meanings of such provisions as “due process” and what “subject to the jurisdiction thereof” means, and how the courts should interpret them as.
                  IMHO, “due process” should be something individually assessed, rather than simply having a law passed, and “subject to the jurisdiction thereof” should apply only to individuals, one of whose parents is a citizen, or both of whom are here, legally.
                  Ideally, I’d like to see the 14th dealt with, like the 18th.

                  1. The 14th Amendment, like the Commerce Clause, has become one of those magic hats from which those with no particular respect for the Constitution try to pull whatever rabbit they want.

                  2. That’s not the biggest problem with it. The biggest problem is defining “liberty”, or at least “deprived of liberty”.

      2. “Well, maybe if the lawyers were making a bizarre excuse for the right of their client to commit murder.”

        This literally never happens.

        1. Is this a literal literal or a virtual literal. I need to calibrate my sarcometer.

    2. Murderers are entitled to a defense.

      Laws aren’t.

  6. But I’m sure this is worth multiple articles. Reason certainly has its finger on the pulse of what is truly important. I know “DOES TED CRUZ REALLY NOT OPPOSE SEX TOYS” is one of the biggest issues facing us these days.

    At least it’s off the old “Trump is evil for criticizing antifa while criticizing neo-Nazis” nonsense.

    1. 19 hrs. ago

      Cruz noted the desire to limit tax filing so that it can be simple enough to fit on a document the size of a postcard. The small size of the document, Cruz said, “means Congress can’t come and add a whole bunch of other provisions.”

      Cruz sided on the lower end of the spectrum, saying, “To be competitive on the global stage, you are looking at 15%, 20% which is much more in line with where the other countries are than our current punitive 35%.”

      Cruz also noted that he would like to see the tax reform effort coupled with a repeal of the 2010 law known as Dodd-Frank, which he said has “wreaked havoc” on small banks and credit unions.

      Reason Magazine: FAUX-LIBERTARIAN DILLLDOOOEEEEZZZZZ!

      1. Yeah, I’m a bit confused why this is what they’re focusing on instead of the important things that are happening right now that he’s involved in. Whatever.

        1. One blog post = focusing on?

          1. This isn’t even the only blog post on this very subject that’s been posted today, so there is that.

            Number of blog posts involving the AUMF? Zero.

      2. I’m gonna jerk this guy off just because he says he wants to lower my taxes. So does Mitch McConnell. Hand me the KY when they accomplish something besides jerking off the whole country.

        1. Godammit! I’m NOT gonna jerk him off! He has to buy me dinner first.

          1. Paging Dr. Freud…

          2. Godammit! I’m NOT gonna jerk him off! He has to buy me dinner first.

            Sure. Telling him he can go back to Texas and suck a dildo (which may make sense with regard to his position on the AUMF) isn’t going to get you a tax cut with or without the handy and I’d understand the general aversion to jerking him off if I weren’t reading ’10 Reasons Why Fellating Bernie Sanders Is A Bad Idea’.

            1. Pat him on the back and encourage him all you like. Right now all we have is talk. Talk and his loyalty to the wind.

        2. Sure, why not. The forced removal of the fruits of my labor to be redistributed by people I’ve never met to people I’ve never met is the single biggest affront to my liberty. Every single year 4 to 5 months of my labor is spent by the government without my approval. That is not even counting “my” share of the debt that I’m obligated to pay back at some point in the future, under threat of violence.

          And yeah, bravo for Mitch McConnell and the other Senators and Congress people I normally hate. Reason SHOULD be giving the guy a pat on the back.

  7. when it comes to his position on sex toys.

    Phrasing!

  8. Alt text: I do not have the right to insert this gerbil in my own ass.

  9. The “dumb but not unconstitutional” argument is the same one used by Justice Thomas when arguing against overturning the Texas statute banning sodomy. In fact, I suspect it’s been cited in the abstract, if not applied in the particular, by every Supreme Court justice.

  10. “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,”

    That is some fucked up shit right there.

  11. While

    “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”

    sounds like exactly something Ted Cruz would say, and he did say it, I’m so glad you managed to somehow blame this all on Elena Kagan.

      1. You wanna start something today? I have an Ambien hangover and lunch plans gone awry, so why don’t you just try me right now.

        After you’re done fucking your cousin, I mean.

        1. His cousin is rather hot…………

        2. “I have an Ambien hangover…”

          So, Tony not think good?

        3. I have an Ambien hangover and lunch plans gone awry

          Oh my god, you poor baby.

          1. Oh look it’s our resident crack baby here to out-misery everyone.

            1. Tell us your lunch plans, at least.

              1. New place. I wanted it to be just me and a friend, but she invited everyone, and now one of them changed the time unilaterally, making another friend unable to come. And this is someone who will return a bottle of wine because she doesn’t like it after sampling five other wines.

                1. That is almost exactly what I figured your friends would be like.

                  1. Seriously. Who didn’t see Tony hanging with the douchebag snoterratti.

                    1. It goes the other way, too. If Tony’s meatspace personality bears any resemblance at all to his online persona, i’m not sure anyone could fault his “friend” for not wanting to be alone with him.

                2. New place. I wanted it to be just me and a friend, but she invited everyone, and now one of them changed the time unilaterally, making another friend unable to come. And this is someone who will return a bottle of wine because she doesn’t like it after sampling five other wines.

                  ^ White People problems.

                  1. I’ll give them at least some kudos in that they didn’t sample five craft beers and then send it back.

                    Those people are the worst. It’s beer, assholes, don’t ruin it by pretending it’s wine. It just makes you look like an asshole, whereas with wine at least you’re a pretentious asshole.

            2. That doesn’t even make sense.

      2. Some guys named Tony are able to think. The one here isn’t one of them.

  12. you have to admit that it’s pretty hard to think straight when you have a huge dildo up your ass…

  13. Sex toys? Really? Why aren’t our politicians working on more important problems like say, I don’t know… our all mighty and over powerful government?

    1. Yes. Let’s talk about how Cruz voted on AUMF. Like a douche, that’s how. Like a fucking War Party loyalist.

      1. Hey, Cruz is fully aware that the AUMF is stupid. It’s just that stupid or not, it is the law, so he’s now duty bound to defend it no matter what.

        1. Please, tell me more how a Senator is exactly the same as the Solicitor General of Texas.

      2. Bernie voted the same way and we got a decent tear/breakdown of his healthcare proposal. No, discussion of his war policy and no drudging back through his political history to find the one time something stupid fell into his lap and he didn’t end up doing something stupid with it.

        I don’t mean to pat Cruz on the back and I’m fully aware that Reason writers are all unique, relatively free to choose their stories, and free to hold differing political views. However, it just seems like too much of a perfect storm in this case. The only way it could be more blatantly hackneyed fake news partisanship is if they were quoting CNN…

  14. “One last point: When a lawyer or a judge calls a law “stupid,” don’t assume that person means that the law is unconstitutional and should be invalidated by the courts.”

    Well, of course not. No intelligent person would ever think that those two things are the same. Any honest lawyer will necessarily be of the view that some laws with which she or he happens to disagree are nonetheless constitutional.

    The ones you want to watch are the lawyers who conclude that, magically, their own personal views are reflected in the Constitution and laws which conflict with those view are invalid.

  15. It seems a bit odd to single out Cruz on this. If you think Lochner was the right decision and essentially throwing it out was terrible for the country, well that makes two of us. But, in opposing Lochner, Ted Cruz is in a hell of a lot more company, including the vast majority of the people deriding him for his dildo case. And in a Lochnerless world, I don’t see how the judiciary can say that the government can’t regulate the sale of sex toys other than “that’s not our preference, you icky people”.

  16. No, the question is, as solicitor general, working for the attorney general, did Ted Cruz get to pick and choose the cases he would defend in court?

    What I got from Cruz’s response to the interviewer was that he did it because it was his job, not because he chose to.

    From a constitutional viewpoint, I’d presume that people are allowed to do anything until and unless the state can show a compelling interest to stop it.

  17. Reason doesn’t understand federalism. Shocker. Really.

  18. This is why it is a good idea for judges to interpret “penumbras” of the Constitution, not needing a textual “umbra”.

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