Ted Cruz Once Argued That Americans Have No ‘Due Process’ Right to Masturbate

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Presidential Candidate Ted Cruz Holds Wisconsin Retail Campaign Stop
"This ... this should not be legal."Photo: Daniel Acker/© 2016 Bloomberg Finance LP

Ted Cruz once argued that Americans have no constitutional right to bear dildos, that the government has a legitimate interest in discouraging “autonomous sex,” and that allowing the sale of sex toys is the first step on the road to legal incest.

This history comes courtesy of Mother Jones’s David Corn, who went searching for skeletons in Cruz’s closet and stumbled across a bunch of dildo baggage instead. On Wednesday, the magazine published an exposé detailing Cruz’s defense of a ban on sex-toy sales while serving as the Texas solicitor general. Back in 2004, several adult-plaything providers challenged a Texas law that banned the sale and promotion of "obscene devices." At the time, only three other states had similar laws on the books. The plaintiffs founded their challenge on the Fourteenth Amendment’s right to privacy, arguing, among other things, that some couples are unable to engage in intercourse without the aid of sex toys, or else require them to avoid passing along contagious diseases such as HIV. A federal judge turned the company down, it appealed, and in 2007 it fell to Cruz’s legal team to keep dildos from undermining the fabric of Western civilization.

In a 76-page brief calling on the U.S. Court of Appeals for the Fifth Circuit to stand with the lower court, Cruz’s office wrote that “any alleged right associated with obscene devices” is not “deeply rooted in the Nation’s history and traditions.” While Cruz acknowledged that, after Lawrence v. Texas overturned sodomy laws, the government could not ban the “private use of obscene devices,” it could ban their sale so as to uphold “public morals.” What’s more, while the government can’t forbid citizens from masturbating, it has a legitimate interest in “discouraging … autonomous sex.” Cruz’s team went on to declare, “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 appeals court disagreed in a 2–1 decision, which held that the government has no business encroaching on Americans’ most private of affairs. But Cruz and Texas attorney general Greg Abbott (who is now the state’s governor) battled on, filing a brief requesting a hearing before the full court of appeals, claiming the three-judge panel had overstepped the precedent set by Lawrence. Cruz’s office argued that the prior ruling would give all manner of deviants grounds to claim that “engaging in consensual adult incest or bigamy” must be legal as they have a right to “enhance their sexual experiences.” They lost the motion and ultimately chose not to bring the matter to the Supreme Court.

Cruz has never discussed his views on dildo commerce during the 2016 campaign, and it’s unlikely that many of his supporters know his history on such matters. It’s difficult to gauge the effect this news will have on Cruz’s standing with the electorate, as exit polls neglected to ask Republican primarygoers about their affinity for sexual devices. Regardless, the American people deserve to know whether Cruz still holds such an expansive view of the government’s right to regulate public morality. There are undoubtedly no small number of patriots in this country who would tell President Cruz’s jackbooted thugs, “I’ll give you my dildo when you pry it from my cold, dead hands.