Ted Cruz helped defend Texas ban on the sale of sex toys in 2007 | Ted cruz
In campaign, Ted cruz presents himself as a “constitutional conservative” who is committed to preserving the right of Americans (largely unthreatened) to religious freedom and access to weapons of their choice. He is, he tells his audience, interested in limiting the scope of the federal government in their lives, and often explicitly promises to limit the power of the federal government in various ways.
But in 2007, when he was Solicitor General of the State of Texas, Cruz took a slightly broader view of the proper role of the federal government, when he participated in a federal court case to uphold Texas’s ban on the sale of sex toys.
In that case, underlined by Mother Jones, two sex toy companies have filed a lawsuit to overturn the state’s ban on selling so-called “marriage aids” – as they are often called in conservative circles. The state’s counter-arguments, drafted in part by the office headed by Cruz, were that the use of sex toys was akin to “hiring a consenting prostitute or consensual bigamy”, and there is a state interest by “discouraging lustful interests in autonomous sex and the pursuit of non-reproductive sexual gratification.”
The state – and Cruz – further argued that the sale of sex toys in the state of Texas was not an interference with the right to privacy for his sexual activities, as established by the Supreme Court. from the United States in Lawrence vs. Texas, which rejected state bans on consensual acts of physical intimacy between people of the same sex. The United States Supreme Court concluded that there was no compelling state interest in interfering with the sex lives of consenting adults, citing the 14th Amendment privacy protections of the U.S. Constitution.
But this “right to privacy,” as understood by most Americans, is in fact not explicitly enshrined in either the constitution or the bill of rights: it is based on multiple interpretations of the amendment. by the Supreme Court, which ruled that the right to privacy is inferred. When conservatives like Cruz pontificate on “militant jurists” or on overly broad interpretations of the constitution, they quite often refer to the right to privacy, which allowed the legalization of abortion, birth control, homosexual and homosexual relations. wedding.
The extremely detailed brief filed by Texas officials included a number of legal gems that should haunt Cruz, but the crux of the argument was this:
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.
In other words, Cruz and the State argued that masturbation (and / or sex for pleasure only) is not covered by the right to privacy and therefore is subject to the regulation of the State. But Cruz and his colleagues did not come across this argument alone: like the American columnist of the Guardian Scott Lemieux once noted, Judge Antonin Scalia, now deceased, made an argument similar to a warning in his dissent in the 2003 Lawrence case [emphasis Lemieux’s]:
State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are also only viable in light of Bowers’ validation of laws based on moral choices. Each of these laws is called into question by today’s decision; the court makes no effort to narrow the scope of its decision to exclude them from detention.
On Wednesday, Lemieux said: “Scalia warned in his dissent from Lawrence that it could lead to a right to stimulate his genitals. Fortunately, Ted Cruz [was] there to courageously fight this slippery slope.
Cruz and his colleagues also argued that there was no historical basis for a right to private complacency:
But even assuming that the appellants have formulated a sufficient right to satisfy the first branch of the Glucksberg test [establishing a right as fundamental], they could not show that the right to promote dildos, vibrators and other obscene devices – or, indeed, even to use these devices in private – is “deeply rooted in the history and tradition of this nation, and implicit in the concept of ordered freedom ‘.
Although museum historians probably disagree that the use of devices for self-stimulation is a new development in the history of mankind, Ben Shattuck’s research on the use of colonial dildos on Nantucket Island in Massachusetts suggests that, in fact, the “obscene contraptions” were indeed “deeply rooted in the history and tradition of the nation” and, not until more recently, subject to scrutiny by the state (except, may -to be, the Salem witch trials).
But the crux of the matter for a small conservative government would likely come from Cruz’s argument that there is a substantial state interest in regulating certain sexual acts: “morality.”
The moral interests that underpin the law’s prohibition of the trade in obscene devices include discouraging lascivious interests in autonomous sex and the pursuit of unrelated sexual gratification …
In other words, Cruz argued that the state had a moral interest in discouraging masturbation and non-reproductive orgasms – a fundamental intrusion into the sex lives of women. a huge proportion of Americans.
To support the argument that the state has a fundamental interest in discouraging masturbation and non-reproductive orgasms through police action, the state’s top lawyers have compared these sexual acts to bigamy and the engagement of prostitutes:
Finally, it is undoubtedly true that some individuals and couples – perhaps even some married couples – believe that hiring a consenting prostitute or consensual bigamy would improve their sexual experiences.
The fifth circuit court of appeal, perhaps unsurprisingly, ruled in favor of the excited masses in 2008. He said,
The right recognized by the Court [in Lawrence v Texas] was not simply a right to engage in the sexual act itself, but rather a right to be free from government intrusion regarding “the most private human contact, sexual behavior”.
And during what can only be described as a legal evisceration of the state’s case against the sale of access to mechanically assisted orgasms, he also claimed:
A person who wishes to legally use a safe sexual device during private intimate moments, alone or with another person, is unable to legally purchase a device in Texas, which weighs heavily on a constitutional right.
But while the Fifth Circuit ruled that any obstacle to Americans’ access to sex toys infringed their rights to use them, this tribunal ruled in 2015 that Texas’ “Trap” anti-abortion laws, which would limit women’s access to legal abortion services by limiting the number of clinics in Texas that can offer such services, did not impose a sufficient burden on access women to abortion to justify the cancellation of these laws. The Supreme Court of the United States heard the arguments in this case in March and is expected to rule later this year.
Cruz, unsurprisingly, also supports Texas restrictions on abortion.