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.