Cruz rules out dildo ban, still unclear on right to privacy

On Friday, Ted Cruz unequivocally ruled out a federal ban on dildos and other sexual toys should he become president, telling a local radio station that “What people do in their own private time with themselves is their own business and it’s none of government’s business.”

Earlier last week, Mother Jones reported that Cruz had defended a Texas law banning the sale of sex toys, among other “obscene devices,” while serving as the state’s solicitor general in 2007. In that case, Cruz and his legal team had written 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,” fairly emphatically arguing that the Constitution doesn’t rule out government regulation on masturbation. Cruz’s comments on Friday seem to amount to a reversal of this position, thereby putting the issue to bed.

But do they? Ted Cruz is well-known for being particularly lawyerly in his positions. He’s incredibly careful with his choice of words. And even though he did say on Friday that the federal government shouldn’t get to regulate what you do in your bedroom, that doesn’t necessarily mean he thinks his anti-dildo case — which he lost — was correctly decided.

That’s because the right to masturbate in private wasn’t the central issue in the 2007 case. The central issue was whether a state could ban the public sale of products related to masturbation. So even if a President Cruz wouldn’t police your bedroom, and even if a President Cruz wouldn’t push for a federal ban on the sale of “obscene devices,” that says nothing about whether a President Cruz would feel that individual states have the right to do so. More importantly, it doesn’t speak to the possibility of a President Cruz appointing federal judges who would consider such state-level bans legal.

This is where paying close attention to Cruz’s choices of words is crucial. Check out the language his spokeswoman, Alice Stewart, used to explain his position on Friday:

Senator Cruz personally believes that the Texas law in question was, as (Supreme Court) Justice (Clarence) Thomas said in another context, an “uncommonly silly” law. But the office was nevertheless duty-bound to defend the policy judgment of the Texas Legislature.

That other context in which Justice Thomas described a law as “uncommonly silly” was Lawrence v Texas, the Supreme Court case that struck down Texas’s ban on sodomy. In his dissent in that case, Thomas wrote that while he thought Texas’s sodomy ban was ridiculous, and that he would vote to repeal it if he were a member of the Texas state legislature, he couldn’t find the federal government’s authority to overturn this particular state law in the Constitution. In particular, Thomas wrote that he could not find a “general right of privacy” in the Constitution that would prohibit a state from regulating bedroom activity.

This is the same argument that underpinned Cruz’s defense of Texas’s dildo ban in 2007, and it’s an argument that Cruz is still embracing this year. He’s insisted that he wouldn’t support a ban on dildos as president, but he has not yet said whether he thinks their sale — and the activities for which they are used — are protected under a right to privacy, as the federal court held in his 2007 case.

Until he clarifies that, he shouldn’t be let off the hook.


Jon Green graduated from Kenyon College with a B.A. in Political Science and high honors in Political Cognition. He worked as a field organizer for Congressman Tom Perriello in 2010 and a Regional Field Director for President Obama's re-election campaign in 2012. Jon writes on a number of topics, but pays especially close attention to elections, religion and political cognition. Follow him on Twitter at @_Jon_Green, and on Google+. .

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  • Brandyhwells4

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  • The ban would be on dildos, Cruz would be free to continue being a laughably fake dick.

  • Ol’ Hippy

    Cruz is a psychopathic monster, a dominionist, that would be an unmitigated disaster for the US. He would do everything he could to overturn Roe.

  • Snarki, child of Loki

    Oh, I’m sure that Cruz is 100% in favor of STRONG privacy for what goes on in the corporate boardroom. Bedrooms? Not so much.

    And if the USA were to ban dildos, Cruz would have to slink back to Canada, being subject to the ban.

  • Jessiecjohns3

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  • BearEyes

    I suspect cruz is against a real right to privacy because, as a former supreme court clerk, he knows full well that Roe v. Wade was, in part, settled on the constitutional right to privacy. As someone who is rabidly anti-choice, I suspect he’s setting the stage to outlaw a constitutional procedure.

  • Zorba

    While masturbation in private may not have been “the central issue in the 2007 case,” still, in his defense of the Texas law, he and his team did argue 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.”
    One could argue that masturbation is, in fact, a stimulation of one’s genitals unrelated to procreation .
    And outside of an interpersonal relationship?
    Well, Cruz’s former Princeton college roommate had something to say about that in a tweet:

    Ted Cruz thinks
    people don’t have a right to “stimulate their genitals.” I was his
    college roommate. This would be a new belief of his.
    Craig Mazin
    10:35 AM – 13 Apr 2016

  • phred

    So he was for the dildo ban before he was against it. Sounds like a flip-flopper to me. :-)

  • B00Z

    I’m relieved!

  • Cruz’s legal argument was as flimsy as wet toilet paper. His position in court was dildos and other sex toys could be banned under Texas law as their only purpose (as he presented it) was for masturbation. Why flimsy? Two reasons: First, the vast majority of sex toys are sold to and used by couples (vastly hetero), and even Cruz’s position allowed for that gigantic “interpersonal relationship” loophole. And secondly, a right to privacy if extended to allowing consenting adults to engage in whatever sexual activities they wish to enjoy (aka Lawrence v Texas) becomes a no-brainer when it comes to a solo adult.

    The only reason for the stupid Texas ban on the sale of sex toys is outdated sexual prudery.

    But yes, Cruz’s position on the very notion there’s any sort of Constitutional guarantee of privacy is tenuous at best. He seems quite comfortable to lean against the idea.

  • JaneE

    If there isn’t a right to privacy, why is there a 4th Amendment?

  • Sally

    So I guess forced ultrasounds, checking a child’s genitals at school to make sure they are in the ‘correct’ bathroom, banning abortion, even when medically needed, keeping women from accessing clinics for contraception, and on and on, is within Cruz’ purview as a government official?

  • goulo

    Sadly an awful lot of politicians don’t believe there is a right to privacy these days, thanks to the War on Terror.

    More and more politicians (who are often math/tech-illiterate, e.g. Diane Feinstein’s recent incoherent proposal to outlaw strong encryption) seem to think it is right (and possible) to ban strong encryption, for example (which would not only be a huge blow to privacy, but also to basic security and to the economy as companies would quit buying US software and hardware).

    And the police are increasingly open about the fact that they generally surveil people by tracking their cellphone’s location, which politicians are evidently mostly fine with. And so it goes…

    Granted, attempts by Cruz et al to criminalize people’s private sex lives goes beyond mere power hungry police-statism and adds in gratuitous religious craziness to the mix.

  • Demosthenes

    Sen. Cruz doesn’t not believe there is an inherent right to privacy in the Constitution. His position is likely the states can regulate privacy rights. He is also in favor of an amendment to the Constitution conferring personhood on zygotes/embryos. Read in tandem, this means he wishes the Constitution to strip the states of any right to have legal abortion, and to eliminate a constitutional right to privacy that could keep abortion legal in some states. If Mr. Cruz is elected this November, and he gets a GOP controlled Congress, he will nominate at least one, if not two, Supreme Court justices who would seek to reverse the right to privacy precedents. In the short run, this would enable many states to criminalize abortion. In the long run, Mr. Cruz would advocate the personhood amendment.

  • The_Fixer

    I think that the answer to whether he supports a ban on selling sex toys is easily discerned by listening to what he’s said in his campaign stump speeches. He wants to bring the government to a practical theocracy (an oxymoron if I’ve ever heard one).

    He can say anything he wants to say about the ban on sale, or usage (which is certainly an impractical and stupid thing to do) of sex toys. It doesn’t change what his governing philosophy would be – it’s just an exercise in word dissection.

    His governing philosophy is nothing short of antithetical to American liberty as expressed in that Constitution of which he and jackasses like Thomas are supposed to be so fond.

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