MJ - The Time Ted Cruz Defended a Ban on Dildos

I thought Ted Cruz was against the idea of Big Government...

http://www.motherjones.com/politics/2016/04/ted-cruz-dildo-ban-sex-devices-texas

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.

The brief 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 to "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 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.

In a 2-1 decision issued in February 2008, the court of appeals told Cruz's office to take a hike. The court, citing Lawrence, pointed to the "right to be free from governmental intrusion regarding 'the most private human contact, sexual behavior.'" The panel added, "An individual who wants to legally use a safe sexual device during private intimate moments alone or with another is unable to legally purchase a device in Texas, which heavily burdens a constitutional right." It rejected the argument from Cruz's team that the government had a legitimate role to play in "discouraging prurient interests in autonomous sex and the pursuit of sexual gratification unrelated to procreation." No, government officials could not claim as part of their job duties the obligation to reduce masturbation or nonprocreative sexual activity. And the two judges in the majority slapped aside the solicitor general's attempt to link dildos to prostitution: "The sale of a device that an individual may choose to use during intimate conduct with a partner in the home is not the 'sale of sex' (prostitution)."

Summing up, the judges declared, "The case is not about public sex. It is not about controlling commerce in sex. It is about controlling what people do in the privacy of their own homes because the State is morally opposed to a certain type of consensual private intimate conduct. This is an insufficient justification for the statute after Lawrence...Whatever one might think or believe about the use of these devices, government interference with their personal and private use violates the Constitution."