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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.
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