This isn’t a sentence I ever expected to write, but here goes nonetheless: Ted Cruz was entirely justified in taking the position he did on the constitutionality of Texas’s anti-dildo law, and those who are hitting him for having done so are outing themselves as opportunists.
The back story, courtesy of Mother Jones:
In 2004, companies that owned Austin stores selling sex toys and a retail distributor of such products challenged a Texas law outlawing the sale and promotion of supposedly obscene devices. Under the law, a person who violated the statute could go to jail for up to two years. At the time, only three states — Mississippi, Alabama, and Virginia — had similar laws. (The previous year, a Texas mother who was a sales rep for Passion Parties was arrested by two undercover cops for selling vibrators and other sex-related goods at a gathering akin to a Tupperware party for sex toys. No doubt, this had worried businesses peddling such wares.) The plaintiffs in the sex device case contended the state law violated the right to privacy under the 14th Amendment. They argued that many people in Texas used sexual devices as an aspect of their sexual experiences. They claimed that in some instances one partner in a couple might be physically unable to engage in intercourse or have a contagious disease (such as HIV), and that in these cases such devices could allow a couple to engage in safe sex.
But a federal judge sent them packing, ruling that selling sex toys was not protected by the Constitution. The plaintiffs appealed, and Cruz’s solicitor general office had the task of preserving the law.
In 2007, Cruz’s legal team, working on behalf of then-Attorney General Greg Abbott (who now is the governor), filed a 76-page brief calling on the US Court of Appeals for the 5th Circuit to uphold the lower court’s decision and permit the law to stand. The filing noted, “The Texas Penal Code prohibits the advertisement and sale of dildos, artificial vaginas, and other obscene devices” but does not “forbid the private use of such devices.” The plaintiffs had argued that this case was similar to Lawrence v. Texas, the landmark 2003 Supreme Court decision that struck down Texas’ law against sodomy. But Cruz’s office countered that Lawrence”focused on interpersonal relationships and the privacy of the home” and that the law being challenged did not block the “private use of obscene devices.” Cruz’s legal team asserted that “obscene devices do not implicate any liberty interest.” And its brief added that “any alleged right associated with obscene devices” is not “deeply rooted in the Nation’s history and traditions.” In other words, Texans were free to use sex toys at home, but they did not have the right to buy them.
Ugh. Cruz is a weirdo, right? A Puritan? A creep? A loser obsessed with other people’s sex lives?
Not at all. Rather, Cruz was a) doing his job within the solicitor general’s office — namely, fighting for the state’s laws regardless of his personal opinion of them; b) forwarding an entirely unexceptional view of the 14th Amendment’s original public meaning; and c) appealing to a legal precedent that remained intact until the rambling mess that is Obergefell v. Hodges blew it wide open eight years later.
Let’s take these one by one:
1. Cruz was doing his job: Rather than criticizing those attorneys general (and Solicitors General) who defend the law-as-written, we should applaud them – or, at the very least, we should respect them. In any functioning system of justice or law, it is critical that each person plays his part. As we would not condemn lawyers who execute their responsibilities within the criminal-defense system even when they dislike their client, so we should not condemn those within the government who play their roles with honor. Ted Cruz was the solicitor general when this case was brought, and he played his part to the letter. His personal beliefs were irrelevant.
2. The argument that Cruz’s office forwarded was wholly defensible in its own right: It is important to remember Cruz was not being asked whether he thought certain sex toys “should” be banned. On the contrary: He was being asked to square the government’s position with the Constitution’s text. Whatever advocates of the “living Constitution” might have us believe, “constitutional” is not in fact a synonym for “my politics,” and nor does it mean “nice thing.” Rather, like any other law, the Constitution has a fixed and comprehensible meaning that should be applied without fortune or favor or reference to the zeitgeist. One mark of a solid legal mind is an ability to distinguish between the questions “can the government do this legally?” and “should the government choose to do this?” — questions that often have spectacularly different answers. Clearly, Ted Cruz has a solid legal mind.
The plaintiffs in the “dildo case” contended that the 14th Amendment’s “due process” clause forbade any government ban on the purchase of sex toys; Cruz and Abbott strongly disagreed. In so doing, they were contributing to an important ongoing debate over the limits of a legal doctrine known as “substantive due process.” On the one side of this debate are those who contend that there are certain rights “implicit in the concept of ordered liberty,” and that those rights can in no circumstances be abridged by the state. This, evidently, was the plaintiffs’ view. On the other side are those who argue that “substantive due process” is little more than a fig-leaf that activist judges use to justify the elevation of their personal views above the views of the voters. As have many before them — including as diverse a set of figures as Justice Oliver Wendell Holmes, Justice Byron White, and Justice Clarence Thomas — Cruz took this view. (As far as I am aware, Cruz continues to hold it.)
3. The argument that Cruz’s office forwarded was backed up by the relevant precedents. In the 1977 Supreme Court case Moore v. East Cleveland, the Court ruled that only liberty interests that are “deeply rooted in the nation’s history” qualify for “substantive due process” protections. This holding was reiterated 20 years later in Washington v. Glucksberg, with Chief Justice Rehnquist proposing that the yardstick for “deeply rooted” liberties should be the English common law. Cruz and Abbott were on solid legal ground in arguing that the right to own sex toys could not credibly be considered as an established historical right, and that it could not be found in the common law of the Founders’ era.
Cruz was also on solid ground when his office submitted that there exists no constitutional right to masturbation. Mother Jones complains that the brief that Cruz’s office penned includes a declaration 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.” That is, the pursuit of such happiness had no constitutional standing. And the brief argued there was no “right to promote dildos, vibrators, and other obscene devices.” The plaintiffs, it noted, were “free to engage in unfettered noncommercial speech touting the uses of obscene devices,” but not speech designed to generate the sale of these items.”
Mother Jones fails to explain, however, that this contention did not spring from the fertile imagination of Cruz’s team, but from a similar case that had been heard in 1985, Yorko v. State. As Snopes records in detail, the Texas solicitor general’s office was merely reflecting the fact that “the Texas Court of Criminal Appeals had held that that there was no constitutional right to ’stimulate another’s genitals with an object designed or marketed as useful primarily for that purpose,’” as well as citing “another case brought in a different state, Williams v. Attorney General of Alabama, regarding a statute prohibiting the sale of ’sex toys.’”
Which is ultimately to say that to hit Ted Cruz for his work on this case is to complain that the man was doing his job — and, in my anti-substantive-due-process view at least, to complain that he was unwilling to make up the Constitution’s meaning on the fly. That Cruz came through the process with his dignity intact is not a red flag so much as it is a mark of character and integrity, which is less than can be said, let’s say, for those who are using the incident to try to damage his presidential chances.