No, Ted Cruz Didn’t Actually Try to Ban Dildos

If you’ve been reading Mother Jones, Slate, Gawker, or any pro-Trump sites recently, first off you have my sympathy. Second off, I feel the need to address a story that you may have read, specifically the claim that Ted Cruz once argued that Texas should ban sex toys. It’s an amusing story, but one that offers exactly zero insight into what positions Cruz actually supports.

There is a kernel of truth to these charges, but just a kernel. In 2007, Texas was sued for a law that banned the sale of obscene devices. Then-solicitor general Ted Cruz defended the law.

The problem is that Cruz wasn’t representing his own views at the time. As solicitor general of Texas, it was his job to defend Texas’ laws whether he liked them or not, using whatever argument he thought would win in court. It also wasn’t his decision whether or not to defend the laws in court; that authority belongs to the Attorney General.

So yes, whenever the state of Texas was sued in court and Cruz’s bosses believed it was worth fighting, Cruz — horror of horrors!– did his job. By all accounts, he did it marvelously. In an alternate history where Barack Obama took Cruz’s job out of college and Cruz went into academia, Obama would be the one on the record “defending a dildo ban.”

Another argument goes that while it was Cruz’s job to defend the law, the argument he chose to make was dangerous and terrible. In attacking Cruz, nearly every liberal outlets covering the old court case have latched onto one sentence in particular to mock. Here’s Mother Jones highlighting it, in the piece that kickstarted this entire nontroversy:

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.

Right off the bat, no, “the pursuit of happiness” does not have any constitutional standing, given that that phrase appears in the Declaration of Independence. You’re perfectly free to believe your “pursuit of happiness” entitles you to all sorts of things, but there’s no end to the list of generally enjoyable behaviors that state has the right to proscribe. There are real constitutional concerns about a ban on sex toys, but the “pursuit of happiness” is only invoked by those who lack a sophisticated understanding of the law and liberal journalists (but I repeat myself).

But more importantly, as urban legend-buster Snopes points out, that also wasn’t Cruz’s own point of view. He was quoting a 1985 Texas court case Yorko v. State, which did indeed find that it was constitutional “for the State to act to protect the ‘social interest in order and morality’ or ‘decency’ by restraining traffic in non-communicative objects designed or marketed as useful primarily for the stimulation of human genital organs.”

You may believe that opinion was wrong or outdated. But it was Texas precedent; more to the point, it was precedent that favored Cruz’s client. It would have been a gross dereliction of duty to not make the argument that the earlier court decision should stand.

The real irony is that most liberals actually got this issue right before, when audio was uncovered of Hillary Clinton joking about how she used a technicality to free an accused child rapist. Clinton was defending her client to the best of her ability, we heard a thousand times. The adversarial court system requires an advocate even for the most odious views, we heard. But now that Cruz has a scandalous former case under his belt, Clinton’s defenders in the legal community have gone silent.

Cruz does not support sex toy bans any more than Clinton supports pedophilia, or Abraham Lincoln supported murder, or John Adams supported the Boston massacre. They were lawyers doing their job. Maybe next time, journalists should do theirs.

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This is an opinion piece. The views expressed in this article are those of just the author.