David Corn at Mother Jones has quite the story this morning about the time that Ted Cruz, as Texas Solicitor General, defended the state’s law criminalizing the sale of “obscene devices,” including dildos.
As Corn explains, in 2004, a handful of companies in Austin sued Texas after a woman was arrested by two undercover cops for selling sex toys at the equivalent of a Tupperware party. As the companies argued, this kind of regulation on commercial activity tied to private behavior fairly clearly violated the right to privacy under the Fourth Amendment. Cruz, as Solicitor General, was charged with arguing that this wasn’t the case, and that the government had a compelling state interest in regulating the masturbation market out of existence.
He made that case, and then some.
While Cruz’s main argument rested on the somewhat contradictory position that while the government couldn’t prohibit private citizens from using dildos, it could prohibit people from selling them, he didn’t stop there. As Corn reports, the brief filed by Cruz and then-Attorney General Greg Abbott:
…insisted that Texas in order to protect “public morals” had “police-power interests” in “discouraging prurient interests in sexual gratification, combating the commercial sale of sex, and protecting minors.” There was a “government” interest, it maintained, in “discouraging…autonomous sex.” The brief compared the use of sex toys with “hiring a willing prostitute or engaging in consensual bigamy,” and it equated advertising these products with the commercial promotion of prostitution. In perhaps the most noticeable line of the brief, Cruz’s office declared, “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’s right: A serious contender for the nomination of a major political party in 2016 has argued in federal court that you don’t have a right to masturbate, and that if it so chose, the government could criminalize such activity.
Not for nothing, such a government action could land Cruz in some hot water:
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 (@clmazin) April 13, 2016
As one might imagine, Cruz lost the case. In a 2-1 ruling, the court of appeals held that if masturbating is protected by the right to privacy, which it is, then banning the sale of products related to masturbation presents an undue burden on that right. The only interest one can find in regulating non-procreative sexual activity is a religious one, and that’s fairly clearly out of bounds for setting government regulations in the secular public and private spheres.
For reasons I’ll let the reader surmise, Cruz and Abbott did not appeal the decision to the Supreme Court.
As the Republican primary drags on, it’s looking increasingly likely that Ted Cruz has carved out a plausible path to wrestling the nomination from Donald Trump at the convention in Cleveland this summer. As someone who is very much interested in seeing the eventual Republican nominee lose in November, cases like this are among the many reasons why I’d be totally fine with that happening. Not only has Ted Cruz gotten to Donald Trump’s right on signature issues such as immigration, his social views are wacky to the point at which they’re downright uncomfortable. And unlike Trump, who clearly hasn’t put much intellectual effort into his positions on same-sex marriage and abortion until relatively recently, Ted Cruz genuinely believes in his theocratic platform.
And it’s not just on masturbation. Remember, Cruz is a death penalty enthusiast who may well believe that the government should execute women who have abortions. He only recently distanced himself from the views of Ken Swanson, the pastor who believes that the government should execute gay people and who featured Cruz as a speaker in Iowa late last year. He has endorsed a plan to “rescue America’s inner cities” by replacing Beyoncé with Jesus…and by taking children away from black single mothers below a certain level of poverty.
Oh, and he hits his kids.
It’s hard to overstate just how difficult it is to elect someone who holds this collection of views in 2016. The median American voter may not be in love with Hillary Clinton, but Ted Cruz is straight up creepy.