As solicitor general, Cruz’s office had argued in case that using sex toys was akin to ‘hiring a prostitute’ and masturbation was not covered by the right to privacy

On the campaign trail, Ted Cruz portrays himself as a “constitutional conservative” who is committed to preserving Americans’ (largely unthreatened) right to religious freedom and access to the guns of their choosing. He is, he tells his audiences, interested in limiting the reach of the federal government into 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 more expansive view of the appropriate role of the federal government, when he participated in a federal court case in an effort to maintain Texas’s ban on the sale of sex toys.

In that case, highlighted by Mother Jones, two sex toy companies sued to render moot the state’s ban on the sale of so-called “marital aids” – as they are often called in conservative circles. The state’s counterarguments, penned in part by the office run by Cruz, were that the use of sex toys was akin to “hiring a willing prostitute or engaging in consensual bigamy”, and there is a state interest in “discouraging prurient interests in autonomous sex and the pursuit of sexual gratification unrelated to procreation”.

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 one’s sexual activity as established by the US supreme court in Lawrence v Texas, which threw out state bans on consensual same-sex acts of physical intimacy. The US supreme court found that there was no compelling state interest in interfering in the sexual lives of consenting adults, citing the privacy protections of the 14th amendment of the US constitution.

But that “right to privacy”, as understood by most Americans, is actually not explicitly enshrined in either the constitution or the bill of rights: it’s built upon multiple interpretations of the amendment by the supreme court, which has ruled that the right to privacy is inferred. When conservatives like Cruz pontificate about “activist legal scholars” or overly broad interpretations of the constitution, they’re quite often referring to the right to privacy, which has allowed the legalization of abortion, birth control, same-sex relationships and same-sex marriage.

The extremely detailed brief filed by Texas officials included a number of legalistic gems that ought to 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 alone) is not covered by the right to privacy and thus is subject to state regulation. But Cruz and his colleagues did not happen upon that argument on their own: as Guardian US columnist Scott Lemieux once noted, now-deceased Justice Antonin Scalia made a similar argument-cum-warning in his dissent to the 2003 Lawrence case [emphasis Lemieux’s]:

State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding.

On Wednesday, Lemieux said, “Scalia warned in his Lawrence dissent that it could lead to a right to stimulate one’s genitals. Fortunately, Ted Cruz [was] there to bravely fight this slippery slope.”

Cruz and colleagues also argued that there was no historical basis for a right to private self-satisfaction:

But even assuming that Appellants had articulated a right sufficient to satisfy the first prong 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 those devices in private – is ‘deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty’.

Though museum historians would likely disagree that the use of devices for self-stimulation is a newfangled development in human history, Ben Shattuck’s research into colonial dildo use on the Massachusetts island of Nantucket suggests that, in fact, “obscene devices” were indeed “deeply rooted in the Nation’s history and tradition” and, not until more recently, subject to state scrutiny (barring, perhaps, the Salem witch trials).

But the heart of the problem for a small-government conservative would probably come in Cruz’s argument that there is a substantive state interest in regulating some sex acts: “morality”.

The morality-based interests behind the statute’s prohibition on commerce in obscene devices include discouraging prurient interests in autonomous sex and the pursuit of sexual gratification unrelated to procreation …

In other words, Cruz argued that the state had a moral interest in discouraging masturbation and non-procreative orgasms – a fundamental intrusion in the sex lives of a tremendous proportion of Americans.



To shore up the argument that the state has a fundamental interest in discouraging masturbation and orgasms achieved with no procreative intent through the use of police action, the top lawyers in the state compared those sex acts to bigamy and engaging prostitutes:

Finally, it is undoubtedly true that some individuals and couples – perhaps even some married couples – believe that hiring a willing prostitute or engaging in consensual bigamy would enhance their sexual experiences.

The fifth circuit court of appeals, perhaps unsurprisingly, ruled in favor of the randy masses in 2008. It said,

The right the Court recognized [in Lawrence v Texas] was not simply a right to engage in the sexual act itself, but instead a right to be free from governmental intrusion regarding ‘the most private human contact, sexual behavior’.

And in the course of what can only be described as a legal evisceration of the state’s case against selling access to mechanically assisted orgasms, it also asserted:



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.

But while the fifth circuit decreed that any barriers to Americans’ access to sex toys infringed upon their rights to utilize them, that court ruled in 2015 that Texas’s anti-abortion “Trap” laws, which would limit women’s access to legal abortion services by limiting the number of clinics in Texas that could offer such services, did not impose enough of a burden to women’s access to abortion to justify overturning those laws. The US supreme court heard arguments in that case in March and is expected to rule later this year.

Cruz, unsurprisingly, also supports the Texas restrictions on abortion.